Promotion, Distribution & License Agreement - AT&T Corp. and iVillage Inc.
PROMOTION, DISTRIBUTION & LICENSE AGREEMENT
Promotion Distribution and License Agreement (this "Agreement"), dated October
21, 1998 ("Effective Date") between:
AT&T Corp., a New York corporation with an office at 295 N. Maple Avenue,
Basking Ridge, New Jersey 07920, on behalf of itself and its Affiliates
(collectively, "AT&T"); and
iVillage, Inc., a Delaware corporation with an office at 170 Fifth Avenue, New
York, NY 10010, on behalf of itself and its Affiliates (collectively,
"iVillage")
RECITALS
A. AT&T is a provider of certain telecommunication services.
B. iVillage owns and operates websites currently known as "iVillage"
(www.ivillage.com), and all current and future domains thereof, including
without limitation the Parent Soup, Parents Place, Better Health, Money, Work
from Home, Shopping and Career, and owns or operates certain other web sites on
the public Internet, both within and outside the United States (collectively,
the "iVillage Sites"), where it offers end users certain chat and search
services and other products and services.
C. AT&T and iVillage wish to work together (1) to promote and market certain
AT&T telecommunication services on the iVillage Sites, and (2) to integrate,
test and promote on the iVillage Sites certain AT&T telecommunication services
that combine web-based services with both traditional and non-traditional (e.g.,
Internet Protocol) communication services.
D. This Agreement includes the following exhibits: Exhibit A:
Bounties/Compensation; Exhibit B: Promotion Plan: Exhibit C: AIC Trial Plan;
Exhibit D: Editorial Guidelines; Exhibit E: Definitions; Exhibit F: Key Words.
AT&T CORP. iVILLAGE, INC.
/s/ D. H. Schulman /s/ Steven Elkes
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Signature Signature
D. H. Schulman Steven Elkes
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Print Name Print Name
Vice President Vice President
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Title Title
10/21/98 10/22/98
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Date Date
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1. PROMOTION OF AT&T SERVICES: AIC TRIAL PLAN
1.1 Promoted AT&T Services. iVillage shall promote and market the AT&T
services listed on Exhibit A ("Promoted AT&T Services") on the iVillage Sites
during the Term in accordance with the placement commitments, Guaranteed
Impression Levels and other terms of the Promotion Plan attached as Exhibit B.
The list of Promoted AT&T Services shall be amended from time to time by the
parties in accordance with Section 1.8. Any reference to a specific URL or web
site in this Agreement shall be deemed to include any successor URL or web site
at which the same or substantially similar content, products or services are
offered on the public Internet.
1.2 Co-Branded Communications Center. iVillage shall, at its expense,
develop and make available on the iVillage Sites in accordance with the
Promotion Plan one or more pages that will reside on its servers and contain
offers for Promoted AT&T Services as well as certain other functionality and
features to be mutually determined (the "Co-Branded Communications Center"). The
Co-Branded Communications Center will link directly to AT&T's servers for online
sign-up by users. iVillage shall be responsible for the design of the Co-Branded
Communications Center, subject to AT&T's reasonable design specifications and
final approval by AT&T. iVillage shall provide AT&T with mock-ups of the
Co-Branded Communication Center on a password protected web site for AT&T's
final review and approval at least ten (10) days prior to the Deployment Date.
Without AT&T's prior consent, there shall be no advertisements, promotions or
other offers for any products or services on or through the Co-Branded
Communication Center, other than for AT&T's products and services.
1.3 Co-Branded AnyWho. iVillage shall, at its expense, develop and make
available on the iVillage Sites in accordance with Promotion Plan, a co-branded
interface page (i.e., initial navigation page and query forms) for AT&T's AnyWho
directory, which page will reside on iVillage's servers (the "Co-Branded
AnyWho"), iVillage shall provide AT&T with design guidelines, graphics and other
creative so that AT&T can develop mock-ups of the "search results" page of the
Co-Branded AnyWho for each of the iVillage Sites. iVillage and AT&T shall
mutually agree on the final design of the Co-Branded AnyWho. iVillage shall
provide AT&T with a mock-up of the interface page of the Co-Branded AnyWho on a
password protected web site for AT&T's review at least fourteen (14) days prior
to the agreed upon deployment date for the Co-Branded AnyWho. iVillage is solely
responsible for serving ads on the Co-Branded AnyWho and revenues from such ads
shall be split between the parties in accordance with Section 3.5. AT&T shall
have the right, on a monthly basis, to use up to [*] of all Unsold Inventory in
the Co-Branded AnyWho for promotions of AT&T products and services (but may not
resell such inventory to third parties). iVillage will manage and keep AT&T
informed of all Unsold Inventory on the Co-Branded AnyWho to ensure that AT&T is
able to fill such Unsold Inventory on a monthly basis. iVillage will place
AT&T's in-house ads for any such Unsold inventory within 2 days of its receipt
of the creative for such ads from AT&T.
1.4 AT&T WorldNet Promotions. (a) iVillage will promote, on the
iVillage Sites, the AT&T WorldNet Service, which shall be marketed and Promoted
exclusively as "iVillage Online Powered by AT&T WorldNet Service", or some other
branding mutually agreed to by the parties ("iVillage Online").
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(b) AT&T will create a Gold Master of the consumer version of its
standard AT&T WorldNet Software that will default to a co-branded iVillage Site
or the standard AT&T WorldNet home page, as provided in (e) below. Promotions of
AT&T WorldNet Service from iVillage Sites will direct users to either download
the AT&T WorldNet Service client software, or order the software on CD-ROM.
(c) iVillage will develop programs specifically designed to retain
iVillage Online Powered by AT&T WorldNet Service customers.
(d) AT&T will include and promote the iVillage sites through the AT&T
WorldNet Service "Come to Your Senses Sweepstakes". iVillage may promote the
sweepstakes prominently on iVillage sites as mutually agreed. Promotion of the
sweepstakes will not be counted against the Guaranteed Impressions Levels or
Clickthrus.
(e) iVillage will have the option to determine whether iVillage Online
customers should default to the AT&T WorldNet Service home page or the iVillage
home page. If iVillage opts to have the customers default to the iVillage home
page, iVillage will design and host a co-branded version of the iVillage Sites
and incorporate a content area (size & format TBD), above the fold, on the home
page, to be used for AT&T WorldNet Service customer communication. Such area
shall include space for AT&T to promote and offer its communications services,
customer care and such other services as mutually agreed. Links to AT&T WorldNet
customer care will be included throughout iVillage Online as mutually agreed.
(f) AT&T and iVillage will collaborate and mutually agree on the
appearance, content, and user interface of the co-branded version of the
iVillage Sites.
(g) iVillage shall provide all support, including without limitation
customer care, in connection with the iVillage Online content at a level at
least as high as the customer care it provides with respect to similar content
on the unbranded iVillage Sites. AT&T will provide billing, network care and
access-related customer care in connection with iVillage Online. The parties
shall agree on an interface agreement for providing "seamless" customer support
and problem resolution for subscribers to iVillage Online, including a mechanism
for transferring subscribers between AT&T and iVillage.
1.5 Targeting and Marketing. Subject to iVillage's privacy policy,
iVillage will actively market the Promoted AT&T Services on the iVillage Sites
during the Term using a variety of targeting tools, including without limitation
Domain Name Targeting and category specific placements; in each case with a goal
to maximize take rates and ensure an optimal product mix (as mutually agreed by
the parties) for the Promoted AT&T Services.
1.6 Change Requests. The Anchor Positions set forth in Exhibit B may
not be changed without AT&T's prior written consent, which shall not be
unreasonably denied (it shall not be unreasonable for AT&T to deny such consent
if it believes the change will reduce the value of the exposure to AT&T's
services). In the event of a redesign of the iVillage Sites, iVillage will
provide AT&T with similar placement in any successor or equivalent content areas
provided the change does not reduce the value of the exposure to AT&T's
services. AT&T and iVillage will mutually define and may verbally agree on the
locations of the Promotional
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Positions set forth in Exhibit B; provided that (a) all such placements conform
to AT&T's Marcom Guidelines as provided to iVillage (b) if AT&T objects to any
placement position, iVillage shall, within 3 business days notice from AT&T,
remove any AT&T Mark (and any related material referencing an AT&T product or
service) from such position and provide an alternative position acceptable to
AT&T, provided that if AT&T designates such a change as "Urgent", iVillage shall
remove the AT&T Mark (and any related material referencing an AT&T product or
service) within 8 hours of AT&T's request. AT&T may, from time to time,
reasonably request that iVillage update the AT&T Marks and for other trade dress
on the Co-Branded Communications Center, the Co-Branded AnyWho or other
previously AT&T branded areas on the iVillage Sites, in which case iVillage
shall make such changes to the AT&T Marks or trade dress within 3 days of
receipt of any update's from AT&T. The parties shall also cooperate with respect
to reasonable changes and updates to the layout, general image, formats and
appearance (i.e., the "look and feel") of the Co-Branded Communications Center,
the Co-Branded AnyWho and other AT&T branded areas of the iVillage Sites;
iVillage agrees to make any changes to such "look and feel" reasonably requested
by AT&T in accordance with a production schedule mutually determined by the
parties, which the parties agree shall mean that changes will be implemented
within 10 days of AT&T's written request.
1.7 AIC Services. iVillage and AT&T shall participate in a trial for
AIC Services in accordance with the AIC Trial Plan attached as Exhibit C. The
AIC Trial Plan will include items such as AT&T's and iVillage's deliverables for
the AIC Trial, the schedule for the AIC Trial and how the parties will staff the
AIC Trial.
1.8 Other Services. iVillage shall, in accordance with this Agreement,
promote any AT&T Telecommunication Services not listed on Exhibit A as AT&T
makes them available and provides them to iVillage with reasonable advance
notice, provided the parties can mutually agree upon a bounty. During the Term,
AT&T will also have the right to buy additional impressions for the Promoted
AT&T Services or other products and services at no more than a $[*] CPM (capped
at [*]% of available inventory).
1.9 Control over Products & Services. Except as expressly provided
below in this Section 1 and Section 2, each party shall have complete control
over the timing, ramp-up, type, pricing, continuation or termination and all
other aspects of its offers for its respective products or services.
(a) Without AT&T's prior written consent, iVillage shall not charge
users any fees for any of the Promoted AT&T Services, for any of the AIC
Services or for accessing or using any AT&T-branded area of the iVillage Sites.
(b) For as long as AT&T offers its "One Rate Online" calling plan (i.e.
under the terms of its existing tariff), iVillage registered members that
subscribe to AT&T One Rate Online will be eligible to pay 9 cents per minute and
no monthly fee (or such other rate as determined by any change to such tariff)
on all direct dialed state-to-state residential long distance calls. iVillage
shall clearly and prominently state on all promotional and other materials on
the iVillage Sites relating to the 9 cent One Rate Online offer that the 9 cent
offer is made available by iVillage to registered members of iVillage only.
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1.10 Each party shall appoint and maintain a designated representative
to manage the provision and updating of Promoted AT&T Services on the iVillage
Sites. Each party will provide the other with access (which may be by beeper) to
the other's technical support for "emergency purposes" twenty-four (24) hours
per day, three hundred sixty-five (365) days per year during the Term of this
Agreement.
1.11 AT&T Promotions. (a) AT&T will display a persistent, above the
fold, text link for the iVillage Site on the standard version of the consumer
AT&T WorldNet Service (i.e., www.att.net) for [*] during the Term. The size and
form of the teaser link shall be mutually agreed and shall conform with AT&T
then-standard requirements for teaser links.
(b) During the Term, AT&T will promote and market iVillage through the
inclusion of iVillage marks in at least [*] dollars (measured using AT&T's
standard accounting practices and average CPMs) worth of AT&T television, mass
media marketing (at least [*] dollars of which will be done in the first
Contract Year); provided that AT&T does such television mass media marketing for
the AT&T WorldNet Service. If AT&T does not do such television mass media for
AT&T WorldNet Service, such [*] dollar commitment shall be fulfilled in other
mass media (e.g., radio, print and TV). The specific form of the advertisement
shall be jointly worked out by the parties, provided that the final
determination as to the media buy shall be made by AT&T.
2. EXCLUSIVITY
2.1 Except as expressly stated in Section 2, this Agreement is
non-exclusive and does not prohibit either party from entering into similar
agreements with third parties involving identical, similar, or different
products, services, and technologies.
2.2 During the Term, (A) AT&T will be the exclusive provider of
Telecommunication Services (as defined in Exhibit E) on iVillage Sites and
iVillage will not itself provide or enter into any agreement with any third
party to provide any Telecommunications Services and (B) no page of the iVillage
Sites that contains any AT&T Anchor Position or Promotional Position, as set
forth in the Promotion Plan, or any other page that contains any AT&T Mark,
shall contain any marketing, advertising or other promotion for any
Telecommunication Service other than a Telecommunication Service offered by
AT&T, except that:
(a) iVillage may display its standard size banner advertisements for
Telecommunication Services on a rotating basis on pages of the iVillage's Sites
that do not display any AT&T Mark, and
(b) iVillage may promote on the iVillage Sites any Unavailable Telecom
Service. An "Unavailable Telecom Service" means a Telecommunication Service
that iVillage wishes to make available on the iVillage Sites within the
following 90 day period and with respect to which (i) AT&T does not offer a
similar service (viewed in terms of functionality to the user and the applicable
market to be targeted) and (ii) AT&T does not indicate to iVillage in writing
within 10 business days after written request from iVillage that it plans to
offer (and does in fact make available) a similar service within 90 days of such
request ("Unavailable Telecom Service"), and
(c) iVillage may display banner advertisements or other promotions for
other Internet access or online service provides other than AT&T, provided that
(i) iVillage Online has placement on the iVillage Sites at least as prominent as
such other Internet access or online service provider, (ii) except for AOL's
online service, no other Internet access or online service provider shall be on
the home page of the iVillage Sites, and (iii) iVillage does not promote such
service as a competitor to iVillage Online and such promotion does not inhibit
iVillage from maximizing the take rates for the iVillage Online program, and
(d) AT&T may, in its sole and complete discretion, approve certain
other exceptions to this exclusivity requirement as proposed by iVillage on a
case by case basis. Nothing in this Section shall prevent the parties from
agreeing that certain AT&T Telecommunication Services (such as the Click2Dial
functionality) will be offered on pages of the iVillage Sites that contain third
party marks of providers of Telecommunication Services.
2.3 During the Term, AT&T will be the exclusive white page directory
provider (i.e., a directory that includes residential, business, governmental
listings of phone numbers, addresses, email addressees, etc,) on the iVillage
Sites.
2.4 If and when AT&T makes such a service available, AT&T will be the
exclusive yellow page directory provider (i.e., a directory primarily devoted to
business listings) on the iVillage Sites; provided, however, that if the
functionality and economic terms for iVillage's using AT&T's yellow pages,
viewed in their totality, are not competitive with iVillage's third party offer
for such yellow pages, and if AT&T fails to make its offer competitive within 30
days of iVillage's providing AT&T with an offer substantially similar to such
third party offer, iVillage may use such third party yellow page provider.
2.5 Notwithstanding anything in this Agreement to the contrary,
iVillage may provide custom online content aggregation, hosting services and/or
branded versions of iVillage's services to third parties (including providers of
Telecommunication Services) ("Content Outsourcing"), subject to the following:
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In consultation with AT&T, iVillage will offer the Promoted AT&T Services and
the AIC Services under this Agreement to all web sites that involve a Content
Outsourcing arrangement in existence at the execution of this Agreement or
created by iVillage during the term of this Agreement; provided that if such
third party objects to using or promoting AT&T's services on its sites, iVillage
shall have no obligation to include any AT&T products and services on their web
sites to the extent that such third party objects to their inclusion. AT&T shall
have the right to approve or disapprove, on a case by case basis, the extension
of any AT&T offers for products or services as part of any such Content
Outsourcing arrangement. AT&T shall respond to iVillage's request for such
approval within 10 business days.
3. FINANCIAL MATTERS
3.1 In General. Except as this Section 3 provides, neither party is
obligated to compensate the other in any way in connection with this Agreement.
Each party will fully fund and pay for all of the costs and expenses it incurs
in connection this Agreement, including the costs of providing its deliverables
as specified in the Promotion Plan and the AIC Trial Plan.
3.2 Minimum Payments. During each Contract Year, subject to Section 3.4
(Shortfalls) and Section 10 (Termination), AT&T will make "Quarterly Minimum
Payments" to iVillage equal as follows:
(a) in the first Contract Year, $[*] (1/4 of an "Annual Minimum" of
$[*]) as a non-refundable, minimum payment for iVillage's performance under this
Agreement;
(b) in the second Contract Year,
(i) if iVillage's Market Reach is less than [*]%. $[*] (1/4 of an
"Annual Minimum" of $[*]) as a non-refundable, minimum payment for iVillage's
performance under this Agreement; and
(ii) if iVillage's Market Reach has increased to [*]% or greater,
$[*] (1/4 of an "Annual Minimum" of $[*]) as a non-refundable, minimum payment
for iVillage's performance under this Agreement.
Where "Market Reach" means the percentage of unduplicated World Wide Web users
that visit iVillage at least once per month "from home" and excludes the reach
that iVillage receives from within AOL or any other proprietary online service,
as measured by Media Metrix as of the date that is 45 days proceeding the
beginning of the second Contract Year (or if Media Metrics no longer provides
such statistics, some other mutually agreed upon industry leading traffic
measurement authority).
3.3 Bounties. As full compensation for each Delivered Customer who
signs up for the Promoted AT&T Services on the iVillage Sites, iVillage will
accrue quarterly bounties ("Accrued Quarterly Bounties") for Delivered Customers
in accordance with the bounty schedule in Exhibit A. iVillage will "earn out"
the Quarterly Minimum Payments against the Accrued Quarterly Bounties as
follows: At the end of each Contract Quarter, if the total Accrued Quarterly
Bounties in such Contract Year are greater than the Quarterly Minimum Payments
to date in such Contract Year, AT&T will pay iVillage the difference between the
Accrued
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Quarterly Bounties due in such Contract Quarter and the Quarterly Minimum
Payment for such Contract Quarter. However, if the Accrued Quarterly Bounties to
date in such Contract Year are less than the Quarterly Minimum Payments to date
in such Contract Year, no payment shall be due iVillage for any bounties in such
Contract Quarter.
3.4 Shortfalls. (a) If at the end of the first Contract Year, iVillage
has not provided AT&T with a minimum of [*] Clickthrus (as audited by a third
party in accordance with Section 3.7) during the first Contract Year ("Clickthru
Shortfall") then iVillage will continue to perform under this Agreement (without
any change to Anchor Positions, Guaranteed Impression Levels, etc.) during a
"Make Good Period" not to exceed 3 months, provided AT&T has not exercised its
termination right under Section 10.3. AT&T shall have no obligation to make any
Quarterly Minimum Payments or other payments during the Make Good Period unless
and until the Clickthru Shortfall is covered. If AT&T does not exercise its
termination right under Section 10.3, regardless of whether or not the Clickthru
Shortfall has been covered in such 3 month period Make Good Period, AT&T will
resume making Quarterly Minimum Payments as of the next following Contract
Quarter.
(b) If there is a Clickthru Shortfall at the end of the second Contract
Year (meaning that iVillage has not delivered at least [*] Clickthrus in the
case that the Annual Minimum for the second Contract Year is $[*]; and [*]
Clickthrus during the second Contract Year in the case that the Annual Minimum
for the second Contract Year is $[*]), iVillage shall have the option of either
(a) requesting payment of the final Quarterly Minimum Payment, pro rated to
cover the shortfall or (b) providing a make good period, for up to 6 months,
and, at any time during such 6 month period, requesting payment of the final pro
rated Quarterly Minimum Payment. iVillage will continue during any such make
good period to perform under this Agreement (without any change to Anchor
Positions, Guaranteed Impression Levels, etc.)
3.5 Advertising. iVillage shall pay AT&T an amount equal to [*]%
multiplied by the Net Advertising Revenues generated on each page of the
Co-Branded AnyWho. iVillage will furnish AT&T with a current version of
iVillage's advertising rate card for each such iVillage Site and the parties
shall mutually agree on financial terms of the rate card (and any changes
thereto) for the Co-Branded AnyWho, from which iVillage will not, on average for
any month, deviate by more than [*]% without AT&T's approval.
3.6 Payments. Quarterly Minimum Payments will be due 45 days following
the end of the applicable Contract Quarter and bounty payments in excess of the
Quarterly Minimum Payment will be due within 45 days after the end of the
applicable Contract Quarter, provided that (a) AT&T will pay iVillage $[*]
within two weeks of the Effective Date and (b) the final Quarterly Minimum
Payment in the second Contract Year, which will be due 45 days after the date
determined pursuant to the last sentence in Section 3.4 or pursuant to 10.6, as
the case may be. iVillage's payments to AT&T for advertising revenues on the
Co-Branded AnyWho will be due within 45 days after the applicable Contract
Quarter.
3.7 Reports.
3.7.1 AT&T Reports. AT&T will provide iVillage with monthly reports
containing the following: (1) the number of Delivered Customers during such
month for each
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Promoted AT&T Service (2) the bounties due iVillage for such Delivered
Customers, (3) information concerning the results of the AIC Trial, as set forth
in the AIC Trial Plan.
3.7.2 iVillage Reports. iVillage will provide AT&T with monthly
reports containing the following: (1) the number of impressions and the amount
of gross and Net Advertising Revenues on a per ad basis for advertisements on
all pages of the Co-Branded AnyWho, the % of Unsold Inventory on the Co-Branded
AnyWho, and the number of impressions (on a per ad basis) of advertisements
placed in all Unsold Inventory allocated to AT&T, (2) the locations, number of
Page Views and Clickthru rates for all Anchor Positions and Promotional
Positions on the iVillage Sites, and (3) reports concerning the results of the
AIC Trial on the iVillage Sites, as set forth in the AIC Trial Plan.
3.7.3 Third Party Reports. All user-viewed impressions and
Clickthrus related to AT&T products and services on the iVillage Sites will be
audited on a monthly basis by Coopers & Lybrand IPRO, Netcount, or Interse, as
the parties shall agree, or by another third party auditing firm to be mutually
approved by the parties, at iVillage's sole expense, and iVillage shall furnish
copies of such reports to AT&T within 5 days following receipt by iVillage. Such
reports shall include the total number of viewed impressions and Clickthrus of
each individual advertisement that appears during the monthly reporting period
on each page of the iVillage Sites and other Information as AT&T shall
reasonably require.
3.8 Taxes. Each party will bear all taxes for which it is legally
liable in connection with this Agreement. If one party is obligated to collect
or remit any taxes for which the other is liable, the party that is liable will
reimburse the other party upon request and submission of reasonable proof that
the taxes were paid.
4. INTERNATIONAL AFFILIATES
iVillage shall use commercially reasonable efforts to (provided that it fits in
with iVillage's strategic objectives for its affiliates operating outside of the
United States) promote on its Web sites outside the United States any
Telecommunication Services that AT&T offers in any such country on terms
substantially similar to the terms of this Agreement; provided that iVillage
shall, upon 90 days' notice to AT&T, have no such obligation in the event that
the AT&T offer in such country is not competitive (taking into account price and
quality) with a local offer of a third party.
5. PUBLICITY; BRANDING
5.1 AT&T and iVillage will communicate and cooperate with respect to
advertising and publicity regarding this Agreement and their relationship, and
will obtain the written consent of the other in each instance before publishing
or releasing any advertising or publicity.
5.2 If iVillage is required under applicable securities laws to
publicly disclose the fact that iVillage has signed this Agreement, iVillage
shall provide AT&T with prompt written notice so that AT&T can work with
iVillage to limit the disclosure to the greatest extent possible consistent with
legal obligations.
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5.3 The parties agree that all AT&T's Telecommunication Services
offered an or through the iVillage Sites shall be branded using the AT&T Marks
as mutually agreed by the parties, provided that with respect to the trial of
the AIC Services, AT&T may determine, in its discretion, to offer one or more of
services on an unbranded or private label basis.
6. USER CONSIDERATIONS
6.1 Editorial Standards. The content at the iVillage Sites shall at all
times during the Term conform with the Editorial Standards (attached as Exhibit
D).
6.2 Minimum Specifications. iVillage's server on which the AT&T
Communications Center, iVillage Online, and the interface page of the Co-Branded
AnyWho will be hosted will have download times at least as fast as, and
availability rates at least as high as, other "key areas" on the iVillage Sites.
AT&T's servers on which the Co-Branded AnyWho (or the Yellow Pages, if and when
available under Section 2.5) will be hosted will, on average, have download
times at least as fast as, and availability rates at least as high as, other
comparable areas (e.g., search results pages) on the iVillage Sites.
6.3 Customer Care. iVillage shall use commercially reasonable efforts
to perform customer care obligations as promptly as possible and, at a minimum,
within the following parameters: (a) forward any electronic mail inquiries
regarding any AT&T Telecommunication Services (additional requirements for the
AIC Services, which is covered in the AIC Trial Plan) to AT&T as soon as
possible (and within 24-hour target turn-around time) following receipt; (b)
electronically notify AT&T of any problems preventing users from linking to
AT&T's online registration site as soon as possible (by putting AT&T on a
"priority list" of contacts maintained by its web hosting operators) of
iVillage's becoming aware of its occurrence (except for the AIC Services, which
will be covered in the AIC Trial Plan); (d) give AT&T at least 24 hours notice
of any scheduled down time of any area of the iVillage Sites that will affect
AT&T products and services, and (d) serve as Tier 1 Customer Support for the AIC
Services as provided in the AIC Trial Plan. "Tier 1 Customer Support" means
acting as the initial point of contact with the customers using AIC Services on
the iVillage Sites and referring user questions, as appropriate, to AT&T by
either email or through a FAQ link.
6.4 Security Standards. iVillage shall provide secure connections,
Secure Sockets Layer ("SSL"), to the iVillage Sites for the transfer of
information in connection with any electronic transaction involving any of
AT&T's Telecommunication Services or in connection with the trial of the AIC
Services. iVillage shall provide and maintain the necessary hardware and
software to support SSL, version 2, at a minimum, at its sole expense. iVillage
agrees to store all user-identifiable information off-line either behind a
secure firewall or on a system that is not directly or indirectly connected to
the Internet.
6.5 User Privacy. (a) Without the customer's affirmative and specific
consent to the particular use (and without limiting any of rights under Section
6.6), iVillage agrees that it will not sell, lease, barter, give away or
disclose to third parties any customer-identifiable information concerning users
on the iVillage Sites, including without limitation name, telephone number,
e-mail address, residential address, office address and/or fax number.
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(b) iVillage further agrees that it will not send unsolicited e-mail
messages or other unsolicited communications to users that reference any AT&T
mark or any AT&T Telecommunications Service; provided that iVillage may send
e-mail to users so long as such users have been given the option (and continue
to have the option at all times) to elect not to receive such e-mail and in the
case of e-mail referencing AT&T or an AT&T Mark, AT&T has approved such email in
advance, which approval shall not be unreasonably withheld or delayed.
6.6 User Data. (a) All data or other information collected by iVillage
from users of the iVillage Sites independent of the relationships, activities or
offers covered by this Agreement and without referencing or solicited in
connection with any AT&T Mark or any AT&T product or service ("iVillage User
Data"), is the proprietary and Confidential Information of iVillage; provided
that, during the Term, iVillage agrees it shall not use any iVillage User Data
in connection with the marketing, promotion, or distribution of any
Telecommunication Services, except Telecommunications Services offered by AT&T
and Unavailable Telecommunication Services (as defined in Section 2).
(b) All data or other information, no matter how collected, concerning
any of AT&T's products or services, concerning users' use of or interest in any
AT&T product or service, or derived from or obtained during the use, promotion,
marketing or other activities related to any AT&T's products and services
(including, without limitation, the Promoted AT&T Services and the AIC Trial),
whether such data or information is obtained on the iVillage Sites or otherwise,
is the proprietary and Confidential Information of AT&T, including, without
limitation, information (individually, in the aggregate, or otherwise),
identifying AT&T customers, their usage patterns, their product preferences,
etc. ("AT&T User Data"). iVillage may not use any AT&T User Data, except in
connection with the promotion of AT&T's products and services in accordance with
this Agreement.
7. CONFIDENTIALITY
The parties agree and acknowledge that, as a result of negotiating, entering
into and performing this Agreement, each party has and will have access to
certain of the other party's Confidential Information. Each party also
understands and agrees that misuse and/or disclosure of that information could
adversely affect the other party's business. Accordingly, the parties agree that
each party shall use and reproduce the other party's Confidential Information
only for purposes of this Agreement and only to the extent necessary for such
purpose and shall restrict disclosure of the other party's Confidential
Information to its employees, consultants or independent contractors with a need
to know and shall not disclose the other party's Confidential Information to any
third party without the prior written approval of the other party. "Consultants"
includes legal counsel, accountants, banks and other financing sources and their
advisors who are hired by a party under confidentiality obligations at least as
stringent as those set forth in this Agreement. Notwithstanding the foregoing,
it shall not be a breach of this Agreement for either party to disclose
Confidential Information of the other party if compelled to do so under law, in
a judicial or other governmental investigation or proceeding, provided the other
party has been given prior notice to permit such other party a reasonable
opportunity to object to the judicial or governmental requirement to disclose.
The provisions of this Section shall apply for the duration of the Term of this
Agreement and for three (3) years after the expiration or termination of this
Agreement.
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8. LICENSE GRANTS
8.1 AT&T Marks. AT&T hereby grants to iVillage during the Term a
worldwide, nonexclusive. nontransferable, nonassignable right to use the AT&T
Marks on the iVillage Sites solely in accordance with this Agreement. All such
use of the AT&T Marks shall inure to the benefit of AT&T. Nothing in this
Agreement shall create any rights, title or interest for iVillage in the AT&T
Marks (except to the extent provided in the first sentence of this Section) or
in any of AT&T's other names, trademarks, service marks, design marks, symbols
and for other indicia of origin and no use of such will be made by iVillage for
any purpose without the prior written approval of AT&T. iVillage shall use the
AT&T Marks in accordance with such reasonable guidelines as AT&T may provide to
iVillage from time to time. iVillage agrees to cooperate with AT&T in
facilitating AT&T's monitoring and control of the use of the AT&T Marks, and to
supply AT&T with samples of use of such icons upon request. Except as set forth
in the first sentence of this Section, all uses of the AT&T Marks shall be
subject to AT&T's prior approval. iVillage shall not modify any aspect of any
AT&T Mark as provided by AT&T to iVillage without AT&T's prior written approval.
iVillage shall not use the letters "att", any of AT&T's other names or marks, or
any name or mark confusingly similar to an AT&T name or mark as pad of any
domain name (e.g., iVillage will not use a domain name such as
"att.iVillage.com", but may use, during the Term of this Agreement, a URL such
as "iVillage.com/att" with AT&T's prior consent.).
8.2 iVillage Marks. iVillage hereby grants to AT&T during the Term a
worldwide, nonexclusive, nontransferable, nonassignable right to use the
iVillage Marks on promotional and other materials in accordance with this
Agreement and as mutually agreed by the parties. All such use of the iVillage
Marks shall inure to the benefit of iVillage. Nothing in this Agreement shall
create any rights, title or interest for AT&T in the iVillage Marks (except to
the extent provided in the first sentence of this Section) or in any of
iVillage's other names, trademarks, service marks, design marks, symbols and/or
other indicia of origin and no use of such will be made by AT&T for any purpose
without the prior written approval of iVillage. AT&T shall use the iVillage
Marks in accordance with such reasonable guidelines as iVillage may provide to
AT&T from time to time. AT&T agrees to cooperate with iVillage in facilitating
iVillage's monitoring and control of the use of the iVillage Marks, and to
supply iVillage with samples of use of such icons upon request. Except as set
forth in the first sentence of this Section, all uses of the iVillage Marks
shall be subject to iVillage's prior approval. AT&T shall not modify any aspect
of any iVillage Mark as provided by iVillage to AT&T without iVillage's prior
written approval. AT&T shall not use the word "iVillage", any of iVillage's
other names or marks, or any name or mark confusingly similar to an iVillage
name or mark as part of any domain name (e.g., AT&T will not use a domain name
such as "iVillage.att.com" but may use, during the Term of this Agreement, a URL
such as "att.com/iVillage" with iVillage's prior consent).
8.3 AT&T Licensed I.P. AT&T grants to iVillage a personal, revocable,
nonexclusive, nontransferable right to use the AT&T Licensed I.P. solely under
the terms and conditions stated in this Agreement, solely for the purpose of
conducting and only for so long as the AIC Trial and solely in accordance with
documentation for the AT&T Licensed I.P. and in accordance with the AIC Trial
Plan as set forth in Exhibit C ("Permitted Uses"). iVillage may make copies of
modified or unmodified AT&T Licensed I.P. only to the extent necessary ,to
support the Permitted Uses, but not in any event more than 5 copies. iVillage
shall not make any
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other use of, commercial or otherwise, market, sell, or otherwise distribute, in
any form, any AT&T Licensed I.P. iVillage agrees that the licenses received from
AT&T for the AT&T Licensed I.P. may not be used to design or develop products
for itself or any third party or to market and distribute any products designed
or developed by any third party. iVillage may use AT&T Licensed I.P., and all
copies thereof only at the location or locations specified in the AIC Trial
Plan. iVillage may not assign. sublease, sublicense, lease, or in any other way
transfer any rights under any AT&T Licensed I.P. to any third party.
8.4 Except as expressly granted in this Section, no license or right is
granted to either party, under the Intellectual Property of the other party,
whether directly or by implication, estoppel, or otherwise.
9. INTELLECTUAL PROPERTY
9.1 As between the parties, each party shall exclusively own all
Intellectual Property that it developed or acquired before the Effective Date
and all such Intellectual Property shall remain the sole property of that party.
AT&T shall own any Intellectual Property, no matter how developed (whether
independently or jointly with AT&T or with some other third party) that is
derivative of the AIC Services or the AT&T Licensed I.P. (an "AIC Development").
9.2 Without AT&T's written consent, iVillage shall not use, or disclose
to any third party, any AIC Development except in connection with the AIC
Services in accordance with this Agreement.
9.3 iVillage will reproduce all copyright, proprietary information
notices, and other notices appearing in AT&T Licensed I.P. on all copies
iVillage makes of AT&T Licensed I.P. under Section 8.3. iVillage shall not
disassemble, decompile, or reverse engineer any AT&T Licensed I.P. or other of
AT&T's Intellectual Property.
9.4 iVillage may use third party consultants or subcontractors
("Subcontractor") to perform development work as provided in the AIC Trial Plan,
provided iVillage (1) informs AT&T as to the identity of such Subcontractor, (2)
obtains a written confidentiality agreement from the Subcontractor that contains
conditions and obligations no less restrictive that those set forth in this
Agreement and which is directly enforceable by AT&T, (3) ensures that its legal
relationship with the Subcontractors allows iVillage to meet its obligations in
this Agreement, and (4) iVillage remains directly liable to AT&T for the
obligations of such Subcontractor.
10. TERM AND TERMINATION
10.1 The term of this Agreement (the "Term") shall begin on the
Effective Date and end 2 calendar years following the Deployment Date, unless
terminated earlier pursuant to this Section 10 or extended in writing by
authorized representatives of the parties or, at AT&T's discretion, pursuant to
the last sentence of Section 3.4. The "Deployment Date" means the date that one
or more of the Anchor Positions and Promotional Positions set forth in Exhibit B
or in Exhibit C are first made available on the Service, which the parties
currently project will be November, 1998 or such other date as mutually agreed
upon by the parties. Either party shall have the right to delay the Deployment
Date by up to 45 days upon 10 days notice to the other party. The Deployment
Date will be memorialized in a written document signed by both parties.
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10.2 If either party has materially breached this Agreement, the other
party may terminate this Agreement 30 days after giving a written notice to the
breaching party that describes the breach in reasonable detail, unless the
breaching party has cured the breach before the end of that 30 day period.
Without limitation, it shall be a material breach if iVillage fails to deliver
the agreed upon number of impressions at the end of each Contract Quarter.
Either party may terminate this Agreement immediately if the other party ceases
normal operations or becomes Insolvent.
10.3 AT&T shall have the right to terminate this Agreement upon notice
to iVillage at least 15 days prior to the end of the first Contract Year if
there is a Clickthru Shortfall under Section 3.4 as measured using the first [*]
months of the Contract Year (i.e., if iVillage has delivered less than [*]
Clickthrus during the first 11 months).
10.4 AT&T shall have the right to terminate this Agreement at any time
during the Term with 30 days' written notice if AT&T ceases or substantially
ceases its ordering process for its products and services via the Internet.
10.5 AT&T shall have the right to terminate this Agreement at any time
during the Term with 30 days' written notice if iVillage is subject to a Change
in Control by an entity whose "primary business" is a provider of
Telecommunication Services or an Affiliate of an entity whose primary business
is a provider of Telecommunication Services.
10.6 If AT&T terminates this Agreement pursuant to Section 10.2,
Section 10.4, or Section 10.5, then AT&T shall be relieved of any obligation to
pay any Quarterly Minimum Payments as of the date of such breach, change in
control or notice of termination as the case may be and any partial Quarterly
Minimum Payments accrued prior to such date shall be pro rated and paid in
accordance with Section 3.6. in all other cases of termination, each party shall
be responsible to the other party for amounts accruing prior to the effective
date of any termination and such amounts shall be paid in accordance with
Section 3.
10.7 If at any time AT&T believes that the AIC Trial is no longer
feasible because of (i) substantial changes in the market for the AIC Services,
or (ii) substantial technical issues that cannot be resolved within the
timeframes contemplated in the AIC Trial Plan schedule, then AT&T may terminate
the AIC Trial, but not the remainder of this Agreement, with no further
liability or obligation to the other, on written notice to iVillage after (a)
giving iVillage a written notice that specifies in reasonable detail the reasons
for its beliefs, and (b) at iVillage's request, negotiating in good faith for a
period of up to 15 days to continue the AIC Trial on the same or different
terms, although the terminating party is not obligated to agree to any such
continuation.
10.8 If this Agreement terminates for any reason or if iVillage no
longer makes the AIC Services available on the iVillage Sites, iVillage will, at
AT&T's option and within 10 working days following termination or at AT&T's
request, either return to AT&T or destroy the original and all copies of AT&T
Licensed I.P. and any of AT&T's proprietary or Confidential Information, and
certify to AT&T that they have been destroyed. The licenses granted in Section
8.3 of this Agreement shall immediately terminate if the AIC Services are no
longer made available on the iVillage Sites.
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10.9 Termination by either party under this Section 10 does not waive
any rights or remedies it may have under this Agreement.
10.10 Provisions of this Agreement that by their nature continue beyond
the expiration or termination of this Agreement, and those provisions that are
expressly stated to survive termination, shall survive the termination or
expiration of this Agreement, including, without limitation, Section 7
(Confidentiality), Section 9 (Intellectual Property), Section 11 (for the
purposes of Section 12.4 and to the extent of any breach of a representation or
warranty prior to the effective date of termination), Section 12 (Risk
Allocation), Section 13 (Notices), Section 15.1 (Disputes).
11. REPRESENTATIONS AND WARRANTIES
11.1 Each party represents and warrants that: (a) it has the right to
enter into this Agreement and to grant the rights and licenses granted herein;
and (b) it shall comply with all applicable laws, statutes, ordinances, rules
and regulations of each county, state and city or other political entity with
respect to the provision of the Telecommunication Services, in the case of AT&T,
and the products and services on the iVillage Sites in the case of iVillage.
11.2 AT&T represents that the AT&T Marks and any other content provided
to iVillage by AT&T for use under this Agreement does not infringe or violate
any third party's copyright, trade secret, local, state or federal U.S.
trademark, right of publicity or right of privacy, or contain any defamatory
content.
11.3 iVillage represents that the iVillage Marks and any other content
provided to AT&T by iVillage for use under this Agreement does not infringe or
violate any third party's copyright, trade secret, local, state or federal U.S.
trademark, right of publicity or right of privacy, or contain any defamatory
content.
12. RISK ALLOCATION
12.1 Trial Nature of AIC Services
iVillage acknowledges that AT&T may in its discretion and without
liability of any kind to iVillage elect not to make one or all of the AIC
Services commercially available, or may delay the commercial availability of the
AIC Services for an indeterminate period of time, or may make the AIC Services
commercially available with features and functions that are substantially
different than the features and functions of the AIC Services offered in
connection with the AIC Trial.
12.2 Disclaimer of Representations and Warranties
EACH PARTY ACKNOWLEDGES THAT THE AIC TRIAL IS EXPERIMENTAL IN NATURE
AND IS CONDUCTED ON AN "AS IS" BASIS. EXCEPT AS EXPRESSLY SPECIFIED IN THIS
AGREEMENT, EACH PARTY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS AND
IMPLIED, CONCERNING OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, AIC
TRIAL OR THE TECHNOLOGY OR OTHER HARDWARE, SOFTWARE, SERVICES, OR INFORMATION
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PROVIDED OR USED IN CONNECTION THEREWITH, INCLUDING ANY REPRESENTATIONS OR
WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR
THAT THE USE OF THE TECHNOLOGY OR OTHER HARDWARE, SOFTWARE, SERVICES, OR
INFORMATION WILL NOT INFRINGE ANY INTELLECTUAL PROPERTY RIGHT OF A THIRD PARTY,
OR THAT ANY HARDWARE, SOFTWARE, AND SERVICES WILL PERFORM IN THE MANNER EXPECTED
OR WITHOUT INTERRUPTION OR ERROR. This disclaimer does not affect the
indemnification obligations under Section 12.4.
12.3 Limitations of Liability
Each party's liability to the other for any loss, cost, claim, injury,
liability, or expense, including reasonable attorney's fees, relating to or
arising out of any negligent act or omission in its performance of or under the
terms of this Agreement shall be limited to the amount of direct damages
incurred up to an aggregate of US$[*]; provided that with respect to breaches of
Section 8 (Licenses), Section 9 (Intellectual Property), Section 7
(Confidentiality) and 12.4 (Third Party Claims) a cap of US [*] shall apply. IN
ANY EVENT, NEITHER AT&T NOR iVILLAGE WILL BE LIABLE TO THE OTHER FOR ANY
SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING LOSS OF
PROFITS OR REVENUES OR LOSS OF PROSPECTIVE BUSINESS ADVANTAGE, REGARDLESS OF
WHETHER THAT LIABILITY ARISES IN CONTRACT, TORT, STRICT LIABILITY, BREACH OF
WARRANTY, OR OTHERWISE.
12.4 Third Party Claims
Each party ("Indemnitor") will defend, at its expense, and will pay the
cost and Damages of a settlement or award resulting from any claim brought
against the other ("Respondent) by any third party in connection with (a) a
breach of representation or a warranty, (b) an independent business relationship
that Indemnitor may have with the claimant, or (c) infringement of any United
States patent, trademark, copyright or trade secret that relates solely to (i) a
component of an AIC Service performed by the Indemnitor pursuant to this
Agreement, (ii) Intellectual Property received from the Indemnitor under this
Agreement, or (iii) the Indemnitor's web sites or the content thereon covered
under this Agreement; except where, in each case (i) through (iii), the claim
arises out of or results from modifications made by, or combinations with
content, products or services provided by, Respondent or others that are not
authorized in writing by the Indemnitor, or, use of the content, AIC Service or
Intellectual Property in violation of this Agreement. In each case (a) through
(c), the Respondent shall (i) promptly notify the Indemnitor in writing of the
claim; (ii) give Indemnitor all requested information that the Respondent has
concerning the claim; (iii) reasonably cooperate with and assist the Indemnitor
in defending the claim, at the Indemnitor's expense, and (iv) give the
Indemnitor sole authority to defend or settle the claim (however, Indemnitor
will not have authority to obligate the Respondent in any way or to compromise
any of Respondent's rights in connection with the defense or settlement).
Respondent may participate in the defense of the claim at its expense through
counsel of its choosing.
12.5 Advertising Insertion Orders
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The indemnification and warranty provisions of the advertising
insertion order form agreement to be used by iVillage in connection with
advertising placed on the Co-Branded AnyWho or any other co-branded page of the
iVillage Sites (which shall not include the Promotional Positions or other
standard banner ads), for which AT&T receives compensation for ads, shall
benefit AT&T.
12.6 Limitation of Actions
No action or proceeding against a party may be begun more than one year
after the termination of this Agreement. This Section will not apply to disputes
under Section 7 (Confidentiality), Section 8 (Licenses), Section 9 (Intellectual
Property), or Section 12.4 (Third Party Claims).
12.7 Force Majeure
Neither party will be liable to the other for delays in the performance
of this Agreement if the delay is caused by shortage of labor, strike, default
or failure of suppliers, riot, war, government action, law, or regulation, act
of God, fire, flood, or other cause beyond the party's reasonable control.
13. NOTICES AND REQUESTS
All notices and requests required under this Agreement will be in writing and
will reference this Agreement. Notice will be deemed given upon delivery or
receipt of registered or certified mail, postage prepaid, return receipt
requested, to the addresses listed below:
Notices to iVillage will be sent to:
iVillage, lnc., 170 Fifth Avenue, New York, NY 10010,
Vice President Finances/Legal Affairs.
Notices to AT&T will be sent to:
AT&T Corp.: 295 N. Maple Avenue; Basking Ridge, N.J.
07920; Attn: Marlene Beeler (or such other individual as
AT&T may designate from time to time), AT&T Interactive
Group; with a copy to the "General Attorney, AT&T
Interactive Group," at the same address.
14. ASSIGNMENT
14.1 No Assignment. Except as expressly provided in this Section,
neither party may assign this Agreement without the prior written consent of the
other party; except that no such consent will be required with a sale of all, or
substantially all, of such party's assets, provided that in the case of
iVillage, such sale does not involve an entity whose "primary business" is a
provider of Telecommunication Services or whose Affiliate is an entity whose
"primary business" is a provider of Telecommunication Services. Such consent
shall be in the sole discretion of the party requested to give consent. Any
attempt to sublicense, assign or transfer
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(except as expressly provided herein) any of the rights, duties or obligations
under this Agreement in derogation hereof shall be null and void.
14.2 AT&T Restructuring. By the provision of notice in accordance with
this Agreement, AT&T shall have the right to assign this Agreement and to assign
its rights and delegate its obligations and liabilities under this Agreement,
either in whole or in part (an "Assignment") to (i) any entity that is, or that
was immediately preceding such Assignment: a current or former subsidiary,
business unit, or division of AT&T; or (ii) an entity in which AT&T has an
ownership interest and that is licensed to promote and market the Promoted AT&T
Services using the AT&T brand. The notice of Assignment shall state the
effective date thereof. Upon the effective date and to the extent of the
Assignment, AT&T shall be released and discharged from all obligations and
liabilities under this Agreement. Such Assignment, release and discharge shall
be complete and shall not be altered by the termination of the affiliation
between AT&T and the entity assigned rights or delegated obligations and
liabilities under this Agreement.
15. GENERAL
15.1 This Agreement will be governed by the laws of the State of New
York, regardless of what laws might otherwise apply under applicable choice of
law rules. In the event of a dispute arising out of or relating to any matter
under this Agreement that cannot be resolved by the parties, the dispute shall
be referred to a Vice President of AT&T and an Officer of iVillage, who will
attempt to resolve the dispute within 10 business days of such referral date. If
such officers are unable to resolve the dispute within such 10 business day
period, then either party may immediately seek to resolve the dispute pursuant
to arbitration as set forth below. All disputes hereunder which cannot be
amicably resolved by the parties as described above, except those solely
concerned with AT&T's Intellectual Property or iVillage's Intellectual Property,
shall be settled exclusively by binding arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association. The
arbitration shall be held in New York City, New York and shall be conducted by a
single arbitrator who shall be a lawyer familiar with Internet business. The
decision of the arbitrator shall be final and binding upon the parties and may
be enforced by either party in any court of competent jurisdiction. Each party
shall bear the cost of preparing and presenting its case. The costs of the
arbitration, including the fees and expenses of the arbitrator, will be shared
equally by the parties unless the award otherwise provides. This provision shall
not be construed to prohibit either party from seeking preliminary or permanent
injunctive relief in any court of competent jurisdiction to the extent not
prohibited by this Agreement.
15.2 AT&T Licensed I.P. may be controlled for export purposes by the
U.S. Government. iVillage will not export, either directly or indirectly, AT&T
Licensed I.P. without AT&T's prior consent and without first obtaining any
required license or other approval from the U.S. Department of Commerce or any
other agency or department of the United States Government as required.
15.3 This is the entire agreement between AT&T and relating to the
subject matter hereof and supersede all previous communications, representations
or understandings, either oral or written, between the parties relating to the
subject matter hereof. No amendments will be
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effective unless in a writing signed by both parties. AT&T and iVillage may from
time to time amend the AIC Trial Plan or the Promotion Plan upon mutual
agreement signed by both parties.
15.4 A waiver of a breach of any term of this Agreement will not be
construed as a waiver of any succeeding breach of that term or as a waiver of
the term itself. A party's performance after the other's breach will not be
construed as a waiver of that breach.
15.5 iVillage acknowledges that any disclosure, commercialization, or
public use of the AT&T Licensed I.P. would cause irreparable injury to AT&T and
AT&T may seek the grant of an injunction by any court of competent jurisdiction
in the event of a threatened or actual breach.
15.6 This Agreement may be executed in counterparts, each of which will
be deemed an original and together will serve to evidence the parties' binding
agreement.
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EXHIBIT A
PROMOTED AT&T SERVICES
--------------------------------------------------------------------------------
Service Bounty Criteria for Delivered Customers/
Other Compensation
--------------------------------------------------------------------------------
One Rate Online o $[*] for each new Approved LD Account,
plus $[*] for each new Approved LD
Account active for at least 6 months,
plus $[*] if such new Approved LD
Account generates > $[*] of LD Revenue
(excludes taxes, refunds, etc.) on
average per month over such 6 month
period.
o $[*] for each existing AT&T LD
customer who switches to One Rate
Online and is active for at least [*]
months.
--------------------------------------------------------------------------------
Pre-Paid Calls [*]% of the retail value of cards
sold.
--------------------------------------------------------------------------------
AT&T Wireless $[*] for each new Approved Delivered
Wireless Customer, whose account is
active for at least [*] months, and who
did not terminate a separate wireless
services account with AWS at any time [*]
months prior to activation.
--------------------------------------------------------------------------------
AIC Services Bounty specifics to be agreed upon for
Controlled Introduction and General
Availability phases of the project and
will be based on learning from Market
Trial. Bounties will not be paid in the
Market Trial
--------------------------------------------------------------------------------
Co-Branded AnyWho Net Ad Revenues split [*]% to iVillage
and [*]% to AT&T, based on mutually
agreed upon rate cards. AT&T will receive
all Unsold Inventory in the Co-Branded
AnyWho.
--------------------------------------------------------------------------------
AT&T WorldNet(R) Service o $[*] for each Delivered Customer, plus
$[*] for each Delivered Customer that
remains with the service for [*]
months.
--------------------------------------------------------------------------------
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EXHIBIT B
PROMOTION PLAN
o iVillage will provide the following minimum "Anchor Positions":
o iVillage will provide an above the fold, persistent graphical,
AT&T-branded, promotional service area for the Promoted AT&T Services on
the following channel pages of the iVillage Sites.
--------------------------------------------------------------------------------
iVillage Channel Placement within Channel
--------------------------------------------------------------------------------
Parents Soup Sponsor Specials
Parents of Teens
Parents of School Age Children
Expecting Parents
--------------------------------------------------------------------------------
Parents Place Sponsor Specials
--------------------------------------------------------------------------------
Career Front Page
Job Listings
--------------------------------------------------------------------------------
Member Center Front Page
E-Mail Main Page
Instant Messenger
--------------------------------------------------------------------------------
Money Channel Main page - below the fold
--------------------------------------------------------------------------------
o iVillage will provide AT&T with an above the fold, persistent top level
home page graphical promotion lasting for one week, at least once per
Contract Quarter.
o AT&T will also have at least 100% of the top level, standard-size, banner
space on all search result pages from all Key Words (defined in Exhibit F)
input by users on iVillage Sites.
o Prominent, above the fold placement for an exclusive AT&T Communications
Area for Telecommunications Services in the iVillage Chat area.
o On the "top level" home page of the Work From Home and Shopping Channels
(and other areas to be mutually agreed) on the on the iVillage Sites as
follows: (a) an above the fold, graphical, category exclusive, AT&T
branded link for the Co-branded Communications Center.
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o The graphical representation of the Click2Dial icons and other icons for
the AIC Services to be developed by AT&T and provided to iVillage will be
placed in the following locations: in the AT&T Communications Area (as
provided above), in the Co-Branded Communications Center, in prominent
locations, above the fold in the instant messaging and chat areas of the
iVillage Sites (specifically Parents Soup, Parents Place, Career, Work
from Home, and Relationships) and in other areas to be jointly determined
by AT&T and iVillage. AT&T shall have the right to recommend certain
positioning based on its own learnings regarding the AIC Services and to
target specific customer segments, and iVillage shall implement such
positioning provided shall recommendation is reasonable and consistent
with this Agreement.
o A link for the Co-Branded AnyWho labeled "Find a Person" or another name
that is mutually agreed to, will be present, (a) on the Co-Branded
Communications Center and (b) in the Tools section of the Relationship
Channel and in the Quick Click tool (above the fold within the scroll box)
on the top level home page of the iVillage Sites. On any intermediate page
between the main directory link and the Co-Branded AnyWho, AT&T will have
a brand presence on such page and the search form for the Co-Branded
AnyWho will reside on that page. In accordance with the AIC Trial Plan,
iVillage will integrate the Clickable Directory feature into the
Co-Branded AnyWho. Links to AnyWho will not be counted towards the
Guaranteed Impression levels below.
o If and when AT&T makes a yellow page service available to iVillage in
accordance with Section 2.5, a co-branded "yellow pages" will be directly
linked from the top level home pages of each of the iVillage Sites. If
iVillage implements a query page which incorporates both the White and
Yellow pages then only one link will be required.
o iVillage will provide "Promotional Positions" for AT&T's Telecommunication
Services at locations mutually determined by iVillage and AT&T based on the
results of the learnings derived from marketing the Promoted AT&T Services on
the iVillage Sites during the Term.
o iVillage will integrate AT&T marketing messages in its newsletters and email
campaigns at a minimum of once per month during the Term. The details of such
campaigns shall be worked out jointly by the parties and approved by each
party.
o iVillage will develop and implement, at its sole expense, at least [*]
AT&T-specific promotions per Contract Year. The details of such promotions
shall be worked out jointly by the parties and approved by each party.
o Except as provided in the following paragraph, iVillage guarantees [*] Pages
Views for combined Anchor Positions and Promotional Positions in the each
Contract Year ("Guaranteed Impression Levels"). The following shall not be
counted towards these Guaranteed Impression Levels: (1) promotion of the AT&T
sweepstakes pursuant to Section 1.4, (2) promotion of AnyWho White and Yellow
pages, (3) promotions of and links to the Co-Branded Communications Center.
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o If iVillage does not achieve [*] Clickthrus during the first Contract Year or
the Make Good Period, then the Guaranteed Impression Levels will be increased
in the second Contract Year based on the following schedule:
--------------------------------------------------------------------------------
Year Two Guaranteed Year Two Guaranteed
Impressions Levels Impressions Levels
if Annual Minimum is if Annual Minimum is
Year One Clickthrus $[*] under Section 3.2 $[*] under Section 3.2
--------------------------------------------------------------------------------
[*] [*] [*]
--------------------------------------------------------------------------------
[*] [*] [*]
--------------------------------------------------------------------------------
[*] [*] [*]
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o iVillage will provide AT&T with specifications (i.e., pixel size and byte
size) for all Promotional Positions, Anchor Positions; and other uses of the
AT&T Marks on the iVillage Sites; provided that, unless the parties agree
otherwise, (1) no graphical representation of an AT&T Mark shall be less than
22 pixel height by 20 pixel width (if vertical) and 45 pixel width by 20
pixel height (if horizontal) and no text representation of an AT&T Mark shall
be smaller than the surrounding text for similar content and/or offers on the
page (and in no event less than 16 pixels)and (ii) all representations of the
AT&T Marks shall otherwise conform to the reasonable AT&T Marcom Guidelines
as provided to iVillage by AT&T from time to time.
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EXHIBIT C
AIC TRIAL PLAN
1. The following trial plan, as amended from time to time by mutual
agreement of the parties ("AIC Trial Plan") sets forth additional terms under
which AT&T and iVillage will cooperate in a trial (the "AIC Trial") whose goals
are to integrate, test and promote on the iVillage Sites certain existing and
future AT&T services, such as "AT&T Click2Dial", "AT&T Chat 'N Talk" and "AT&T
Click2Dial Directories" (or their successors) that combine web-based services,
with both traditional and non-traditional (e.g., Internet Protocol )
communication services ("AIC Services").
2. Introduction of AIC Services on the iVillage Site will be
facilitated through a joint learning and highly controlled trial environment
involving a targeted and limited number of users at the iVillage Sites. The
Parties will work together to control access to these AIC Services during all
Trial phases based upon the usage projections/results and capacity limitations
of the AIC Services.
3. AT&T will accept iVillage, and iVillage agrees to participate as, a
Market Trial participant for AT&T Chat 'N Talk, AT&T Click2Dial, and AT&T
Click2Dial Directories that is expected to commence during the fourth quarter of
1998.
4. In addition to its commitments in the Promotion Plan in Exhibit B,
iVillage will provide the following in conjunction with the AIC Services:
o iVillage will integrate AT&T's Chat 'N Talk functionality within the
iVillage chat service.
o Placement of Click2Dial icons at prominent locations, above the
fold, on the iVillage Sites and other areas to be jointly determined
by AT&T and iVillage.
o iVillage will integrate the Click2Dial feature within all applicable
iVillage directories used to display telephone numbers, including
Yellow Pages and White Pages.
o The Click2Dial Icons and Chat 'N Talk Icons that iVillage displays
on the iVillage Site shall be at least 120WX60H pixel size. AT&T
shall provide the banner ad or button in a "jpeg" or "gif" file
ready for posting.
o iVillage will, at its expense, develop code to embed AT&T's
Click2Dial functionality in the iVillage Instant Messenger, when
available, or in other locations on the iVillage site to be jointly
determined by AT&T and iVillage.
5. AIC may, at its discretion, provide AT&T AIC software on the AT&T
WorldNet Gold master disk for manufacture and distribution by iVillage.
6. iVillage will serve as Tier 1 customer support via email for AIC
Services on the iVillage Sites, with a maximum response time of 24 hours. The
parties will work together to
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develop a customer care program that provides response times and other customer
care support that is "best in class", considering both the type of AIC Service
involved, the nature of the iVillage Site and both parties' concerns over
protecting their respective brands.
7. iVillage will provide relevant monthly usage reports for the AIC
Services on the iVillage Sites. Reports from iVillage will include information
on (i) the page from which the use of the AIC Service originated, (ii) which
feature on the page was used, (iii) the number of impressions on that page, (iv)
notice of any schedule downtime of the AIC Services on the iVillage Sites, and
(V) other information reasonably requested by AT&T. AT&T shall provide iVillage
with information at "a summary level" concerning the number of customers who
signed up for each AIC Service and the usage patterns of such customers.
8. Locations for iVillage's Use of Licensed AT&T I.P. are: New York or
other locations as mutually agreed to by the parties.
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EXHIBIT D
EDITORIAL STANDARDS
Subject to the last sentence of this Exhibit, neither the iVillage
Sites nor any product or service offered at the iVillage Sites shall contain:
1. Any matter which is libelous, defamatory or which discloses private
or personal matters concerning any person, including home phone numbers and
addresses, credit card information, and/or user account information.
2. Any messages, data, images, programs, or other matter which are
obscene or which contain racial, ethnic or religious slurs or similar epithets,
or advocating violence, hate or other language that is deeply and widely
offensive.
3. Any messages, data, images, programs, or other matter that would
violate the property fights of others, including unauthorized copyrighted text,
images or programs, trade secrets or other confidential proprietary information
or trademarks or service marks used in an infringing fashion.
The foregoing shall not apply to third party information or materials
that may be located through end user queries on the iVillage Sites or materials
posted on the iVillage Sites (including without limitation chat and bulletin
board areas of the iVillage Sites) by third parties for which iVillage receives
no consideration.
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EXHIBIT E
DEFINITIONS
Capitalized terms used and not defined in the body of the Agreement
shall have the following meaning:
"Affiliate" means a corporation or other entity that controls, is
controlled by or is under common control with another corporation or entity,
where "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management policies of a person or entity,
whether through the ownership of voting securities, by contract or credit
arrangement, as trustee or executor, or otherwise. In the case of AT&T,
Affiliates shall include any venture in which AT&T has an equity stake or any
other contractual venture formed for the purpose of offering an AT&T product or
service covered under this Agreement.
"AIC Trial" is defined in Exhibit C.
"AIC Trial Plan" is defined in Exhibit C.
"AIC Services" is defined In Exhibit C.
"Anchor Positions" is defined in Exhibit B.
"AT&T Licensed I.P." means (1) Intellectual Property embodied in AT&T's
CallBroker client libraries and APIs, including the modules and specifications
that: (i) define the basic programming interface exposed to CallBroker clients
and provides for control of voice calls from a client via a Java APIs and/or
HTTP APIs; (ii) implement the authentication methods used by CallBroker (CB)
clients; and (iii) provide support for the ASCII message protocol used for CB
client to CB server communications; and (2) documentation (including information
provided orally or in other intangible forms) related to the Call Broker client
libraries, including: API definitions; and software installation and
administration guides; and (3) any derivative works (including Object Code
derived from modified or unmodified Source Code), modifications or improvements
of any of the above provided by AT&T to iVillage from time to time.
"AT&T Marks" means the names, trademarks. services marks, text, logos
or other insignia of AT&T and its Affiliates that iVillage uses on the iVillage
Sites in accordance with Section 8.1.
"Change in Control" means the direct or indirect acquisition of 25% or
more of the outstanding voting shares of iVillage or the acquisition of the
ability, by contract or otherwise, to direct or control the management of
iVillage.
"Clickthrus" means that a user has clicked on an AT&T Anchor or
Promotional Position and received a full Page View from an AT&T Site. The
following shall not be counted as Clickthrus: (1) promotion of the AT&T
sweepstakes pursuant to Section 1.4, (2) promotion of AnyWho White and Yellow
pages, and (3) promotions of and links to the Co-Branded Communications Center.
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"Co-Branded AnyWho" is defined in Section 1.3.
"Co-Branded Communications Center" is defined in Section 1.2.
"Confidential Information" means (a) the terms and conditions of this
Agreement; (b) each party's trade secrets, business plans, strategies, methods
and/or practices; (c) any and all information governed by any now-existing or
future non-disclosure agreement between the parties; and (d) any other
information relating to either party that is not generally known to the public,
including information about either party's personnel, products, customers,
marketing strategies, services or future business plans and any learning
concerning the other party's customers, products or services generated as a
result of the promotional activities on the iVillage Sites or the AIC Trial.
Notwithstanding the foregoing, the term "Confidential Information" specifically
excludes (i) information that is now in the public domain or subsequently enters
the public domain by publication or otherwise through no action or fault of the
other party; (ii) information that is known to either party without restriction,
prior to receipt from the other party under this Agreement, from its own
independent sources and which was not acquired from the other party or as a
result of the activities under this Agreement; (iii) information that either
party receives from any third party having a legal right to transmit such
information, and not under any obligation to keep such information confidential;
and (iv) information independently developed by either party's employees or
agents provided that either party can show that those same employees or agents
had no access to the Confidential Information received hereunder.
"Contract Quarter" means, for the first Contract Quarter, the calendar
quarter beginning on the Deployment Date and ending 3 calendar months following
the Deployment Date (on the same day of the month as the Deployment Date); each
subsequent Contract Quarter shall end on that same day of the month in the
subsequent calendar quarter, adjusted as required pursuant to Section 3.4 and
adjustments to the Contract Year.
"Contract Year" means, for the first Contract Year, the calendar year
beginning on the Deployment Date and ending on the one year anniversary of the
Deployment Date (on the same day of the month as the Deployment Date). If there
is a Make Good Period in accordance with Section 3.4, the second Contract Year
shall begin on the expiration or termination, as the case may be, of the Make
Good Period and shall end on the 1 year anniversary thereof or as extended
pursuant to Section 3.4. If there is no Make Good Period in the first Contract
Year, then the second Contract Year shall begin on the 1 year anniversary of the
Deployment Date and shall end on the 1 year anniversary thereof or as extended
pursuant to Section 3.4.
"Damages" means any loss, debt, liability, damage, obligation, claim,
demand, judgment or settlement of any nature or kind, known or unknown,
liquidated or unliquidated, including without limitation all reasonable costs
and expenses incurred (legal, accounting or otherwise).
"Delivered Customer" means an approved AT&T customer (a) who
electronically links directly from the tracking URLs established for the Anchor
Positions and Promotional Positions on the iVillage Sites to an AT&T website (b)
who electronically registers to become a customer of the Promoted AT&T Services
on such AT&T website (c) whose order is processed and accepted by AT&T and (d)
who meets the relevant criteria established in Exhibit A. In the event of a
dispute as to whether an AT&T customer meets the conditions of the preceding
sentence and
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of Exhibit A or was the result of another marketing effort, the confirmed
customer enrollment that Is first in time to be received by AT&T shall determine
the eligibility for compensation. For purposes of bounties for AT&T WorldNet
Service, "Delivered Customer" means, in addition to the above, a person or
entity who (I) has registered, and has been billed, for iVillage Online; and
(II) has paid at least [*] of Subscriber Revenue to AT&T using the iVillage
Online during the first three months after registration. "Subscriber Revenue"
means any revenue derived from iVillage Online that is received by AT&T from a
Delivered Customer, less rebates and refunds, and less any federal, state or
local taxes based on such fees (except taxes based an AT&T's net income). In no
event shall Subscriber Revenue be deemed to Include unbundled charges for
transport, tarriffed services not bundled with iVillage Online, or value added
Internet-related services (e.g., hosting, security, directory, content services,
products, etc.). No bounties shall be payable for subscribers to iVillage Online
who register for the service through AT&T WorldNet Alliance Marketing Program.
"Delivered Wireless Customer" means a customer who meets the definition
of a Delivered Customer and (i) who places an order with AT&T Wireless Services
for Service on an authorized rate plan in an area served by AT&T Wireless
Services, (ii) who is accepted by AT&T Wireless Services, (iii) for whom
wireless voice service is activated and a wireless telephone number assigned,
(iv) whose wireless voice service has not been terminated prior to [*] months
after such subscribers activation date and whose account has remained in good
standing throughout this period, and (v) who did not terminate a separate
wireless services account with AT&T Wireless Services at any time within [*]
days prior to such subscriber's activation date, when an individual or entity
places more than one order and each order is for a different wireless telephone
number to be assigned to a separate wireless telephone and electronic; serial
number, each order will be treated as a separate Delivered Wireless Customer.
"Deployment Date" is defined in Section 1 0.
"Guaranteed Impressions Levels" is defined in Exhibit B.
"Insolvent" means a party is unable to pay its debts as they become
due, files or has filed against it a petition under any bankruptcy law (which.
if involuntary, is not dismissed within 60 calendar days), proposes any
dissolution, liquidation, composition, financial reorganization, or
recapitalization with creditors, makes an assignment or trust mortgage for the
benefit of creditors, or that a receiver, manager trustee, custodian, or similar
agent is appointed or takes possession with respect to any major property or
business of that party.
"Intellectual Property" means all intellectual property protectible by
law throughout the world, including all copyrights (including the exclusive
right to reproduce, distribute copies of, display, and perform the copyrighted
work and to prepare derivative works), copyright registrations and applications,
trademark rights (including trade dress), trademark registrations and
applications. patent rights (including the right to apply therefor), patent
applications therefor (including the right to claim priority under applicable
international conventions) and all patents issuing thereon, and inventions,
whether or not patentable, together with all utility and design, know-how,
specifications, trade names, mask-work rights, trade secrets, moral rights,
author's rights, algorithms, rights In packaging, goodwill, and other
intellectual property rights, as may exist now and hereafter come into
existence, and all renewals and extensions thereof, regardless
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of whether any of such rights arise under the laws of the United States or of
any other state, country, or jurisdiction.
"iVillage Sites" is defined in Recital B.
"iVillage Marks" means the names, trademarks, services marks, text,
logos or other insignia of iVillage and its Affiliates that iVillage provides to
AT&T for use in accordance with Section 8.2
"Key Words" are attached as Exhibit F.
"Net Advertising Revenues" means gross consideration actually received
by iVillage derived from advertising, which consideration is paid or credited at
any time to iVillage or to any Affiliate of iVillage, without deductions except
reasonable and actual commissions for which iVillage has satisfactory
documentation and which shall not exceed 20 percent of such gross consideration.
"Page View" means a full page viewed by a user, Multiple AT&T Marks on
a page shall count as one Page View. Cached pages shall not count as Page Views.
"Promotional Positions" is defined In Exhibit B.
"Telecommunication Service(s)" means, for both residential and
business, (1) outbound and inbound local and long distance service, including
intralata, interstate, intrastate, international and toll-free services; (2)
calling cards and prepaid cards, including those for use both domestically and
internationally, and credit and debit cards whose primary purpose is calling
charges, (3) operator services, including collect calling, billed to third
parties and other operator handled services, (4) directory assistance; (5)
conference calling; (6) private line and dedicated services; (7) online billing
and paper billing services for all telecommunication services; (except as part
of a general utility for bill presentment where billing for telecommunication
services is one of many billing options presented to the users), (8) analog,
digital, PCS and other wireless services; (9) telephony or any other
voice-enabled service using Internet Protocol or any other packet-switching
protocol; (10) internet-enhanced telecommunication services or any other service
using Internet Protocol or any other packet-switching protocol to interact with
the circuit-switched network, such as the AIC Services; (11) unified messaging
(i.e., a service that incorporates voice messaging with other messaging such as
email or fax, (12) directories (such as yellow page directories, white pages,
governmental listings, and email directories), (13) Internet access or online
services, and (14) any other communication service offered by AT&T (other than
Unavailable Communication Services as defined in Section 2).
"Unsold Inventory" means all inventory for advertisement or promotional
space other than inventory that iVillage sells to third parties.
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EXHIBIT F
KEY WORDS
*Available to AT&T unless and until the party owning such mark enters into an
agreement with iVillage to use such keyword (upon expiration of such agreement
the keyword will revert back to AT&T).
**AT&T will not have exclusive rights to such keyword, but will have a
meaningful percentage of the rotation for such keyword.
***AT&T will have exclusive rights unless and until iVillage has an agreement
with a provider of an Unavailable Telecommunication Service to provide such
keyword.
*Alltel Truevoice Phone service
**Voice Long distance
*Ameritech *USWest phone card
AT&T Wireless toll free
AT&Twireless 1888 true voice
ATT 1-888 call att
*BellAtlantic 800 telephone service
*BellSouth 888 digital pcs
Call(s) 1-800 one rate
CallATT 1800 wireless service(s)
Calling collect call(s)(ing)
Callingcard wireless phone
Carrier wireless messaging
Cellphone(s) Telecommunications
Cellular Teleconferencing mobile phone
Cellulartelephone Telephone(s) ***IP telephony
Collect Tollfree ***Internet telephony
Directory Conferencing
*GTE Conferencing calls
Isdn Communications
Local
LCI Anonymous chat
LD Voice chat
Long Distance Carrier(s)
Long Distance telephone
*MCI
Mobile
**Moving
Phone number
Onerate
PCS
Phone(s)
Prepaid
*Qwest
*SBC
*SNET
*Sprint
Telecom
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