Interactive Marketing Agreement - America Online Inc. and Onvia.com Inc.
Execution Copy
Confidential
INTERACTIVE MARKETING AGREEMENT
-------------------------------
This Interactive Marketing Agreement (the "Agreement"), dated as of
February 4, 2000 (the "Effective Date"), is between America Online, Inc.
("AOL"), a Delaware corporation, with offices at 22000 AOL Way, Dulles, Virginia
20166, and Onvia.com, Inc. ("Onvia"), a Washington corporation, with offices at
1000 Dexter Ave. N., 4th Floor, Seattle, WA 98109-3574. AOL and Onvia may be
referred to individually as a "Party" and collectively as the "Parties."
INTRODUCTION
------------
To the extent set forth herein, AOL and Onvia each desires to enter into an
interactive marketing relationship whereby AOL will provide Onvia with
distribution across certain AOL properties via promotion of an interactive site
referred to (and further defined) herein as the Co-Branded Site, and Onvia will
build a web-based buying directory by leveraging Netscape's programming,
services and tools with Onvia's expertise. This Agreement describes the
relationship more fully below and sets forth additional material terms and
conditions. Defined terms used but not defined in the body of the Agreement
will be as defined on Exhibit B attached hereto.
TERMS
-----
1. PROMOTION, DISTRIBUTION AND MARKETING.
-------------------------------------
1.1. AOL Promotion of Co-Branded Site. AOL will provide Onvia with the
--------------------------------
promotions for the Co-Branded Site described on Exhibit A attached
hereto (however, the parties recognize that AOL does not have the
authority to bind AOL Canada, and carriage thereon is subject to AOL
Canada's agreement, provided that AOL will use commercially
reasonable efforts to enter into an agreement with AOL Canada before
Onvia's carriage thereon is scheduled to begin, and if such an
agreement cannot be entered into, AOL will provide Onvia comparable
promotional placements in appropriate alternative areas of the AOL
Network). Subject to Onvia's approval not to be unreasonably
withheld, AOL will have the right to fulfill its promotional
commitments with respect to any of the foregoing by providing Onvia
comparable promotional placements in appropriate alternative areas of
the AOL Network. In addition, if AOL is unable to deliver any
particular Promotion, AOL will work with Onvia to provide Onvia a
mutually agreed comparable promotional placement, which if so
provided shall constitute Onvia's sole remedy. If the Parties cannot
mutually agree on a comparable placement despite good faith efforts
to do so, then the Parties will attempt to resolve any disagreement
in accordance with the provisions of Section 7 hereof. AOL reserves
the right to redesign or modify the organization, structure, "look
and feel," navigation and other elements of the AOL Network at any
time. In the event such redesigns or modifications materially and
adversely affect any specific Promotion, AOL will work with Onvia to
provide Onvia a comparable promotional placement as soon as is
commercially reasonable, and if so provided such comparable placement
shall constitute Onvia's sole remedy. Notwithstanding anything to the
contrary herein, with respect to any Integrated Impressions set forth
on Exhibit A, the Parties expressly acknowledge and agree that any
reference anywhere herein to `comparable placements' for such
Integrated Impressions shall be calculated at a [* * *] rate.
1.2. Impressions Commitment. During the Term, AOL shall deliver [* * *]
----------------------
Impressions to the Co-Branded Site through the Promotions (the
"Impressions Commitment"), except as otherwise set forth herein
(e.g., Section 3.4 hereof with respect to the Integrated
Impressions). With respect to the Impressions targets specified on
Exhibit A, AOL will not be obligated to provide in excess of any
Impressions target amounts in any year, subject to the make-good
commitment set forth below in this Section 1.2. In the event there is
(or
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
will be in AOL's reasonable judgment) a shortfall in Impressions as
of the end of the Initial Term (including with respect to the
Integrated Impressions) (a "Final Shortfall"), AOL will provide
Onvia, as its sole remedy (other than the pro rata refund provided
for later in this Section 1.2), with an extension of its existing
promotional obligations hereunder (i.e. promoting the Co-Branded Site
consistent with the terms hereof, e.g., Exhibit A hereto) until the
Impressions Commitment has been satisfied, up to a maximum of six (6)
months (and Onvia shall not be required to pay additional carriage
fees for such an extension). In the event that the Impressions
Commitment still has not been satisfied at the end of such six month
extension period, AOL will provide Onvia, as its sole remedy, with a
refund of a pro rata percentage of the total Fixed Payment Amount
paid by Onvia pursuant to Section 3.1 hereof, to the extent that AOL
has actually received such payments from Onvia and such payments
remain unearned at the time of refund (i.e., a proportionate
percentage of the Impressions Commitment has not been delivered at
the time of termination). Except as otherwise set forth herein or
otherwise mutually agreed, after the Co-Branded Site has been created
and launched in accordance with this Agreement, AOL will use good
faith efforts, on a quarterly basis, to distribute Impressions to
standard, non-integrated, rotating buttons and banners (excluding any
fixed or permanent placements) reasonably consistently over the
course of the Initial Term, provided that the Parties understand that
such consistency may be affected by such factors as seasonality and
special offers. In addition, with respect to all the Promotions
hereunder (i.e., not only the standard, non-integrated, rotating
buttons and banners discussed in the previous sentence), AOL will use
good faith efforts to deliver approximately [* * *] of the
Impressions Commitment during the first six months of the Term,
approximately [* * *] of the Impressions Commitment during the first
full year of the Term, and one hundred percent (100%) of the
Impressions Commitment during the entire Term; provided that if AOL
fails to achieve any such percentage target despite good faith
efforts to do so, such failure shall not constitute a breach hereof,
but AOL shall use commercially reasonable efforts to make up a
shortfall in either of the first two percentage targets in the
following six month period.
1.3. Content of Promotions. Except as otherwise set forth herein, the
---------------------
Promotions will link only to the Co-Branded Site and will promote
only the Onvia Products described (and to the extent permitted) on
Exhibit D. The specific Onvia Content to be contained within the
Promotions described in Exhibit A (the "Promo Content") will be
determined by Onvia, subject to AOL's technical limitations, the
terms of this Agreement and AOL's then-applicable policies relating
to advertising and promotions. Onvia will submit in advance to AOL
for its review a quarterly online marketing plan with respect to the
Co-Branded Site. The Parties will meet in person or by telephone at
least monthly to review operations and performance hereunder,
including a review of the Promo Content to ensure that it is designed
to maximize performance, and use good faith efforts to attempt to
optimize performance. Onvia will consistently update the Promo
Content no less than twice per week. Except to the extent expressly
described herein, the specific form, placement, duration and nature
of the Promotions will be as determined by AOL in its reasonable
editorial discretion (consistent with the editorial composition of
the applicable screens).
1.4. Onvia Promotion of Co-Branded Site and AOL. To the extent set forth
------------------------------------------
in Exhibit C, Onvia will provide AOL with certain contextually
relevant promotions and placement. Under all circumstances, Onvia
will promote AOL as a preferred access provider to the content and
services as contemplated herein.
2. CO-BRANDED SITE.
---------------
2.1. Creation of Co-Branded Site. Onvia will create a customized,
---------------------------
co-branded version of Onvia's Standard Site as the Co-Branded Site
(to the extent consistent with the terms hereof), including distinct
versions of the Co-Branded Site for each applicable property of the
AOL Network (i.e., each brand in which Onvia has carriage hereunder,
except for AOL Canada) as set forth in Exhibit H hereto (e.g., one
for linking from the AOL Service which
2
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
is co-branded with the AOL brand, one for linking from the CompuServe
Service which is co-branded with the CompuServe brand, etc., except
for AOL Canada, in which case, the site(s) linked to therefrom shall
not include any AOL co-branding, but all other requirements in this
Agreement relating to the Co-Branded Site shall apply to such
site(s)). Onvia will use commercially reasonable efforts to include
certain distinct Content within each such distinct version of the Co-
Branded Site, tailored and targeted to the applicable audience as
mutually agreed (the "Brand Specific Content"). Onvia will comply
with AOL's and its affiliates' then generally applicable
customization standards and design guideline templates for each
property with respect to headers, footers, co-branding and URLs, by
way of example as set forth on Exhibit H attached hereto. Each page
of the Co-Branded Site shall (i) have AOL or AOL affiliate branded
headers and footers, (ii) be located on a co-branded URL with the
appropriate AOL affiliate as the primary domain (e.g.,
www.onvia.aol.com or www.onvia.netscape.com, except as otherwise
----------------- ----------------------
expressly set forth in Section 2.3) such that AOL receives credit for
traffic thereto, in each case in accordance with AOL's (or the
applicable AOL affiliate's) then-current generally applicable
standards, and (c) contain navigational links to the appropriate
property of the AOL Network. AOL agrees to make reasonable efforts to
work with Onvia to enable the two then-most widely quoted,
nationally-recognized third party Internet traffic measurement and
reporting services (such as Media Metrix or Neilson Net Rating) (the
"Ratings Agencies") to attribute secondary credit for traffic to the
Co-Branded Site to Onvia (e.g., through a syndicated report or such
other report developed by the Ratings Agencies) as part of Onvia's
overall network (i.e., so that if and where Onvia is mentioned in any
publicly announced traffic measurements or reports (other than the
Top 50 Reports as defined below) of the Ratings Agencies regarding [*
* *], such measurements or reports will combine as part of a single
total the traffic of [* * *] (as the case may be) to the Standard
Site and Co-Branded Site (collectively, the "Onvia Desired Result"),
by, if and to the extent necessary to achieve such Onvia Desired
Result, (a) issuing a duly authorized letter to the Rating Agencies
requesting such credit for Onvia (the "Traffic Letter"); and (b) if
issuance of the Traffic Letter does not achieve such Onvia Desired
Result in [* * *], as Onvia's sole remedy, locating the one main
home/entry page of the Co-Branded Site on an Onvia owned URL that
includes appropriate AOL branding to the left of the Onvia domain
(e.g., www.aol.onvia.com) (but expressly not any other pages of the
-----------------
Co-Branded Site, which shall all remain on an AOL URL as set forth
above). So long as AOL satisfies the express requirements of this
section, failure to achieve the Onvia Desired Result shall not be
considered a breach of this Agreement by AOL. The Parties acknowledge
and agree that the Onvia Desired Result cannot currently be
accomplished with respect to reports or measurements by the Ratings
Agencies of the top 50 Internet sites (the "Top 50 Reports"), and
that if traffic of unique visitors to the Co-Branded Site and
Standard Site in the aggregate reaches a level which otherwise would
qualify those sites together as a top 50 Internet site, AOL and Onvia
will work in good faith to discuss a mutually acceptable means of
attributing such traffic to Onvia and AOL. AOL shall have the right
to change or modify its design guideline templates and co-branding
requirements during the Term, to conform to general changes made to
the AOL Network or portions thereof, so long as it does not impair
Onvia's ability to receive credit for traffic in accordance with this
Section 2.1. In the event that any such changes result in significant
redesign costs or reduction in placement value, the Parties will work
together in good faith to attempt to minimize such financial impact.
Within a reasonable amount of time following the Effective Date
(Onvia shall make commercially reasonable efforts to ensure that such
amount of time does not exceed sixty (60) days, and in no event shall
it exceed ninety (90) days), Onvia will integrate into the Co-Branded
Site, AOL's tools and technology for Quick Checkout. In addition,
within a reasonable amount of time following the Effective Date
(Onvia shall make commercially reasonable efforts to ensure that such
amount of time does not exceed sixty (60) days, and in no event shall
it exceed ninety (90) days), Onvia shall use commercially reasonable
efforts to integrate into the Co-Branded Site, AOL's tools and
technology for Shopping Cart and Search, if and as applicable and
commercially reasonable in each case, plus such other tools and
technology as the
3
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
Parties may further mutually agree. Notwithstanding the foregoing,
the Parties acknowledge that Onvia shall have a reasonable amount of
time (Onvia shall make commercially reasonable efforts to ensure that
such amount of time does not exceed thirty (30) days, and in no event
shall it exceed sixty (60) days) from and after the execution hereof
to build the Co-Branded Site, including the Co-Branded Site Buying
Directory, during which such time AOL may elect to instead link to
the Standard Site, and during which such time, Onvia will ensure that
the Standard Site does not promote any Interactive Service other than
AOL.
2.2. Content and Programming. Onvia will make available through the Co-
-----------------------
Branded Site (and the AOL Buying Directory and the RFQ/RFI
Promotional Area) the comprehensive offering of Products and related
Content described on Exhibit D in accordance with the terms thereof.
Except as mutually agreed in writing by the Parties, the Co-Branded
Site will contain only Content that is directly related to the Onvia
Products listed on Exhibit D. Notwithstanding the foregoing, Onvia
may promote, sell, offer or otherwise distribute products through its
"Request for Quote" services (by which a business can specify a
request for products or services and obtain responses from merchants
interested in satisfying such requests) existing as of the Effective
Date and as updated from time to time in accordance with this
Agreement (the "RFQ Services") or "Request for Information" services
(by which a business can specify a request for information and obtain
responses from providers interested in satisfying such requests)
existing as of the Effective Date and as updated from time to time in
accordance with this Agreement (the "RFI Services") on any page of
the Co-Branded Site if and to the extent permitted by Exhibit D
hereto. Onvia will review, delete, edit, create, update and otherwise
manage all Content available on or through the Co-Branded Site in
accordance with the terms of this Agreement. Onvia will ensure that
the Content of the Promotions and the Co-Branded Site do not in any
respect promote, advertise, market or distribute the products,
services or content of any other Interactive Service, and that the
Content of the Promotions does not in any respect promote any entity
reasonably construed to be in competition with any third party with
which AOL has an exclusive or premier relationship, as identified by
the Restricted Categories and Prohibited Categories of Exhibit D
hereto. Onvia will provide AOL and the Co-Branded Site with the
programming, content, and services set forth on Exhibit A-1. AOL will
integrate Onvia's content, programming and services in the manner and
areas set forth in Exhibit A-1.
2.3. Production Work. Except as agreed to in writing by the Parties
---------------
pursuant to the "Production Work" section of the Standard Online
Commerce Terms & Conditions attached hereto as Exhibit F, and except
as otherwise expressly set forth herein, Onvia will be responsible
for all hosting and production work associated with the Co-Branded
Site (including the Co-Branded Site Buying Directory), including all
related costs and expenses. Onvia will provide, maintain, and support
all necessary software and hardware. Onvia will modify links within
the Co-Branded Site, where appropriate, to re-circulate users to the
appropriate AOL property. Onvia will ensure that all AOL users in the
Co-Branded Site (including the Co-Branded Site Buying Directory) will
not be able to access any additional links to the Standard Site,
except as expressly stated in this Agreement. Except as otherwise
expressly set forth herein, the AOL Buying Directory shall reside
within the AOL Network (but be provided to AOL and managed in
accordance with the terms hereof by Onvia), such that AOL shall be
responsible for hosting such AOL Buying Directory (except the results
pages thereof, which shall be hosted by Onvia) and the AOL Aggregated
RFQ Area, and Onvia shall be responsible for production and
operation/management thereof, in accordance with the terms hereof. In
addition, for a period of 60 days from and after the Effective Date
hereof, the Parties shall discuss in good faith the possibility of
AOL hosting the results page of the AOL Buying Directory rather than
Onvia, and if so the terms and conditions applicable thereto (e.g.,
the costs and charges Onvia would pay to AOL in return therefor).
4
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
2.4. Technology. Onvia will optimize the performance of the AOL Buying
----------
Directory, Co-Branded Site Buying Directory, RFQ/RFI Promotional
Areas and the Co-Branded Site for integration on the AOL properties
(e.g., without limitation, by taking all commercially reasonable
steps necessary to conform its promotion and sale of Products through
the Co-Branded Site to the then-existing technologies identified by
AOL which are optimized for the AOL Service, provided that Onvia
shall have a reasonable time in which to do so following notice from
AOL). AOL will be entitled to require reasonable changes to the
Content (including, without limitation, the features or
functionality) within any linked pages of the Co-Branded Site to the
extent such Content will, in AOL's reasonable good faith judgment,
adversely affect any operational aspect of any portion of the AOL
Network. AOL reserves the right to review and test the Co-Branded
Site from time to time to determine whether the site is compatible
with AOL's then-available client and host software and the AOL
Network.
2.5. Product Offering. Onvia will ensure that the Products and other
----------------
Content offered on the Co-Branded Site shall, in all material
respects, be substantially equivalent to or better than all of the
Products and other Content (including, without limitation, any
features, offers, contests, functionality or technology) that are
then made available by or on behalf of Onvia through any Additional
Onvia Channel; provided, however, that (i) the inclusion of certain
Products or Content will not be required where it is commercially or
technically impractical to either Party (i.e., inclusion would cause
either Party to incur substantial incremental costs); and (ii) the
specific changes in scope, nature and/or offerings required by such
inclusion will be subject to AOL's review and reasonable approval and
the terms of this Agreement.
2.6. Pricing and Terms. Onvia will ensure that: (i) on the whole, the
-----------------
prices (and any other required consideration) for Products in the Co-
Branded Site do not generally exceed the prices for the Products or
substantially similar Products offered by or on behalf of Onvia
through any Additional Onvia Channel; and (ii) the terms and
conditions related to Products in the Co-Branded Site are generally
no less favorable than the terms and conditions for the Products or
substantially similar Products offered by or on behalf of Onvia
through any Additional Onvia Channel.
2.7. Exclusive Offers/Member Benefits. Onvia will generally promote
--------------------------------
through the Co-Branded Site any program of special or promotional
offers made available by or on behalf of Onvia through any Additional
Onvia Channel. In addition, Onvia shall promote through the Co-
Branded Site on a reasonably regular and consistent basis special
offers exclusively available to AOL Users (the "AOL Exclusive
Offers"). The AOL Exclusive Offers made available by Onvia shall
provide a substantial member benefit to AOL Users (but may be by
means other than price (e.g., product enhancement, free shipping,
unique service benefit or other special feature)). Onvia will use
good faith efforts to provide AOL with reasonable prior notice of AOL
Exclusive Offers so that AOL can market the availability of such AOL
Exclusive Offers in the manner AOL deems appropriate in its editorial
discretion reasonably exercised.
2.8. Operating Standards. Onvia will ensure that the Co-Branded Site
-------------------
complies at all times with the standards set forth in Exhibit E. To
the extent site standards are not established in Exhibit E with
respect to any aspect or portion of the Co-Branded Site (or the
Products or other Content contained therein), Onvia will provide such
aspect or portion at a level of accuracy, quality, completeness, and
timeliness which meets or exceeds prevailing standards in the
business-to-business industry. In the event Onvia fails to comply
with any material terms of this Agreement or any Exhibit attached
hereto, AOL will have the right (in addition to any other remedies
available to AOL hereunder) to decrease the promotion it provides to
Onvia hereunder (and to decrease or cease any other contractual
obligation hereunder) until such time as Onvia corrects its non-
compliance (and in such event, AOL will be relieved of the
proportionate amount of any promotional commitment made to
5
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
Onvia by AOL hereunder corresponding to such decrease in promotion)
and any revenue threshold(s) set forth in Section 3 will each be
adjusted proportionately to correspond to such decrease in promotion
and other obligations during the period of non-compliance.
2.9. Advertising Sales. AOL will own and manage all Co-Branded Site
-----------------
Advertising Inventory. AOL will have the exclusive right to license
and/or sell all Advertisements in the Co-Branded Site Advertising
Inventory. Except for advertising inventory sold in the Co-Branded
Site Buying Directory pages (including any Co-Branded Site Buying
Directory category pages, sub-category pages, or results pages, and
related pages), AOL agrees not to sell such Co-Branded Site
Advertising Inventory to any of the entities listed in Schedule 2.9
hereto. Onvia may not incorporate or link to any Advertisement or
other commercial elements without AOL's prior written approval,
except as otherwise expressly stated herein.
2.10. Traffic Flow. Onvia will take reasonable efforts to ensure that AOL
------------
traffic is either kept within the Co-Branded Site or channeled back
into the AOL Network (with the exception of advertising links sold
and implemented pursuant to the Agreement). The Parties will work
together on implementing mutually acceptable links from the Co-
Branded Site back to the AOL Service. In the event that AOL points to
the Co-Branded Site or any other Onvia Interactive Site or otherwise
delivers traffic to such site hereunder, Onvia will ensure that
navigation back to the AOL Network from such site, whether through a
particular pointer or link, the "back" button on an Internet browser,
the closing of an active window, or any other return mechanism, shall
not be interrupted by Onvia through the use of any intermediate
screen or other device not specifically requested by the user,
including without limitation through the use of any html popup window
or any other similar device. Rather, such AOL traffic shall be
pointed directly back to the AOL Network as designated by AOL. Onvia
will modify links within the co-branded pages, where appropriate, to
re-circulate users to the appropriate AOL property. Onvia will ensure
that all AOL Users in the co-branded areas will not be able to access
any additional links to Onvia's Standard Site, except that links to
certain mutually agreed newsfeed ("Newsfeed"), forms and proprietary
tutorial content areas therein shall be permitted if and only to the
extent that the Content in such areas is provided by third parties
which forbid Onvia to sublicense the right to display such Content
("Permitted Third Party Unbranded Content"); provided, however, that
such links shall link only and directly to the Permitted Third Party
Unbranded Content (e.g., a particular news story) and the pages
containing the Permitted Third Party Unbranded Content shall not
contain any unrelated Content or Advertising preceding or framing
such Permitted Third Party Unbranded Content (and the editorial
content of such pages shall not contain promotions for Interactive
Services other than AOL, it being understood that the editorial
content within any such Newsfeeds (i.e., the text of the news story)
shall not be deemed such a promotion). The number of pages containing
Permitted Third Party Unbranded Content may not exceed five percent
(5%) of the Content of the Co-Branded Site.
3. PAYMENTS.
--------
3.1. Guaranteed Payments. Onvia will pay AOL Eighteen Million One Hundred
-------------------
Sixty Thousand Eight Hundred Four Dollars (US $18,160,804.00) (the
"Fixed Payment Amount"), payable as follows:
(i) Three Million Eighty Seven Thousand Three Hundred
Forty Dollars (US $3,087,340) within five (5) days of execution
hereof; and
(ii) Two Million Five Hundred Twelve Thousand Two
Hundred Forty Four Dollars (US $2,512,244) on the three (3),
six (6), nine (9), twelve (12), fifteen
6
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
(15) and eighteen (18) month anniversaries of the date of
execution hereof, until fully paid;
provided however, if during the Term, Onvia engages in any debt,
----------------
equity, or other financing arrangement or series of arrangements
raising proceeds equal to or in excess of $10,000,000 ("Funding
Event"), then 35% of the then total remaining payments (excluding any
past due amounts, which shall still be fully due and payable) will be
due and payable to AOL on such Funding Event date and any further
payment balance amounts still owing thereafter will be payable to AOL
on a straight-lined basis over the balance of the term in quarterly
payments until the total placement fee has been paid. In addition to
the foregoing, if no such Funding Event occurs within sixty (60) days
of execution hereof, then Onvia shall pay AOL Two Million Five Hundred
Twelve Thousand Two Hundred Forty Four Dollars (US $2,512,244) no
later than five (5) days after that sixtieth day. Such payment shall
take the place of the installment payment which was to have been paid
on the eighteen (18) month anniversary of the date of execution
hereof, and all other terms of this Section 3.1 shall remain
unchanged. The Fixed Payment Amount provided for herein shall be
refundable if and to the extent called for by Sections 1.2 and 5.4
hereof.
3.2. Sharing of Transaction Margins. During the Initial Term, Onvia shall
------------------------------
retain [* * *] of the Transaction Margins generated by Onvia in the
Co-Branded Site.
3.3. Sharing of Advertising Revenues. AOL shall own the rights to
-------------------------------
Advertising Revenues generated through the Co-Branded Site Advertising
Inventory, including without limitation in the Co-Branded Site Buying
Directory, subject to the restrictions set forth in Section 2.9. AOL
will pay to Onvia, [* * *] of Advertising Revenues received by AOL for
such Advertisements in the Co-Branded Site Advertising Inventory,
including without limitation in the Co-Branded Site Buying Directory,
as described herein on a quarterly basis.
3.4. Performance Revenue. Attached as Schedule 3.4 is a list of
-------------------
aspirational quarterly targets ("New Customer Targets") of users
transacting for products or services (including registering for RFQ
Services or RFI Services, entering into transactions in the Co-Branded
Site Buying Directory, or registering for paid enhanced content or
services) via the Co-Branded Site or otherwise directly via any
Promotion hereunder ("New Customers"). For each quarter during the
Term, if the number of New Customers meets or exceeds such quarter's
applicable New Customer Target as so listed on Schedule 3.4, then for
each New Customer beyond such New Customer Target (up to an aggregate
maximum of [* * *] New Customers above such targets during the Term),
Onvia shall pay to AOL an amount equal to [* * *] of the average cost
to Onvia per New Customer, as calculated by dividing [* * *] [* * *]
of the Fixed Payment Amount) by the total number of New Customers for
such quarter (the "Performance Revenue"). The Performance Revenue
attributable to a particular quarter shall be paid to AOL within
thirty (30) days following the close of that quarter. In addition, if
at the time which is eighteen (18) months from and after the Effective
Date, AOL achieves the aggregate New Customer Target amount of New
Customers for such 18 month period, then AOL shall have no more
Impressions or other promotional obligations or commitments with
respect to the AOL Buying Directory and the AOL Aggregated RFQ Area
thereafter. If any New Customer Target is not achieved in any quarter,
such event shall not constitute a breach hereof.
3.5. Late Payments; Wired Payments. All amounts owed hereunder not paid
-----------------------------
when due and payable will bear interest from the date such amounts are
due and payable at the prime rate in effect at such time. All payments
required hereunder will be paid in immediately available, non-
refundable U.S. funds wired to the "America Online" account, Account
Number [* * *] at The Chase Manhattan Bank, 1 Chase Manhattan Plaza,
New York, NY 10081 (ABA: [* * *]).
7
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
3.6. Auditing Rights. (a) Onvia will maintain complete, clear and accurate
---------------
records of all expenses, revenues and fees in connection with the
performance of this Agreement. For the sole purpose of ensuring
compliance with this Agreement, AOL (or its representative) will have
the right to conduct a reasonable and necessary inspection of portions
of the books and records of Onvia which are relevant to Onvia's
performance pursuant to this Agreement. Any such audit may be
conducted after twenty (20) business days prior written notice to
Onvia. AOL shall bear any and all of the reasonable, direct, out-of-
pocket costs and expenses of any audit conducted pursuant to this
Section 3.6 unless such audit shows an error in AOL's favor amounting
to a deficiency to AOL in excess of five percent (5%) of the actual
amounts paid and/or payable to AOL hereunder, in which event Onvia
shall bear the reasonable expenses of the audit. Onvia shall pay AOL
the amount of any deficiency discovered by AOL within thirty (30) days
after receipt of notice thereof from AOL. (b) For the sole purpose of
ensuring compliance with Sections 3.3 and 3.9 of this Agreement, Onvia
will have the right to a reasonable and necessary inspection to be
conducted by an independent third party selected in good faith by AOL,
of portions of the books and records of AOL which are relevant to
AOL's performance pursuant to those sections. Such right may not be
exercised more than two times per year. AOL shall select such third
party auditor within twenty (20) business days of Onvia's written
notice to AOL of its desire for such audit, and the audit shall begin
within a reasonable amount of time following such selection. Onvia
shall bear any and all of the reasonable, direct, out-of-pocket costs
and expenses of any audit conducted pursuant to this Section 3.9
unless such audit shows an error in Onvia's favor amounting to a
deficiency to Onvia in excess of five percent (5%) of the actual
amounts paid and/or payable to Onvia hereunder, in which event AOL
shall bear the reasonable expenses of the audit.
3.7. Taxes. Onvia will collect and pay and indemnify and hold AOL harmless
-----
from, any sales, use, excise, import or export value added or similar
tax or duty not based on AOL's net income, including any penalties and
interest, as well as any costs associated with the collection or
withholding thereof, including reasonable attorneys' fees.
3.8. Reports.
-------
3.8.1 Sales Reports. Onvia will provide AOL in an automated manner
-------------
with reports in an AOL-designated format, detailing the
following activity in such period (and any other information
mutually agreed upon by the Parties or reasonably required for
measuring revenue activity by Onvia through the Co-Branded
Site): (i) summary sales information by day (i.e., date, number
of Products, number of orders, total Transaction Margins); and
(ii) detailed sales information (i.e., e-mail address or
screenname, category of service provided (e.g., RFQ Services,
RFI Services, etc.), and, if and to the extent Onvia
categorizes its services into vertical market segments, then
the applicable vertical market segment) (in information in
clauses (i) and (ii), "Sales Reports"). If and to the extent
required to comply with this section, Onvia shall tailor its
privacy policy for the Standard Site for use with the Co-
Branded Site. Onvia shall use commercially reasonable efforts
to provide such reports monthly or as otherwise requested by
AOL, and shall in any event provide them at least quarterly.
AOL will be entitled to use the Sales Reports in its business
operations, subject to the terms of this Agreement. AOL
acknowledges that such reports may contain Confidential
Information as defined herein. More generally, each payment to
be made by Onvia pursuant to this Section will be accompanied
by a report containing information which supports the payment,
including information identifying (i) gross Transaction Margins
and all items deducted or excluded from gross Transaction
Margins to produce Transaction Margins, including, without
limitation, chargebacks and credits for returned or canceled
goods or services (and, where possible, an explanation of the
type of reason therefor, e.g., bad credit card information,
poor customer service, etc.); (ii) any applicable Advertising
Revenues; and (iii) any Performance
8
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
Revenue, including the basis for the calculation thereof
(including each New Customer, and the means by which such New
Customer was acquired (e.g., nature of transaction). AOL will
ensure that its use of the information obtained from Onvia
users by virtue of their use of the Co-Branded Site as
contemplated under the Agreement complies with the applicable
privacy policy on the Co-Branded Site, provided that AOL shall
have reasonable input as to the privacy policy applicable to
the Co-Branded Site.
3.8.2 Usage Reports. AOL shall provide Onvia with standard usage
-------------
information related to the Promotions (e.g. a schedule of the
Impressions delivered by AOL at such time) which is similar in
substance and form to the reports provided by AOL to other
interactive marketing partners similar to Onvia. Onvia
acknowledges that such information may be Confidential
Information as defined herein.
3.8.3 Fraudulent Transactions. To the extent permitted by applicable
-----------------------
laws, Onvia will provide AOL with monthly reports of all
fraudulent orders, including the date, screenname or email
address and amount associated with such order, following Onvia
obtaining knowledge that such orders are, in fact, fraudulent.
3.9 Integration Revenue. During the Initial Term, AOL shall pay to Onvia
-------------------
[* * *] of the revenue received by it for integration of third parties into
the AOL Buying Directory by Onvia to the extent received by AOL from its
third party merchant partners for such integration into such directory by
Onvia at AOL's request in accordance with Exhibit I hereof (and including
only such portion of the total revenues from such third parties directly
attributable to such integration as set forth in more detail in this
Section 3.9) (the "Integration Revenue"). More specifically, the
Integration Revenue shall consist only of all cash actually paid to (to the
extent actually collected by) AOL by such third parties for integration
into the AOL Buying Directory by Onvia, at such time as such cash is
recognized as revenue attributable to such integration by AOL in accordance
with applicable generally accepted account principles, less (i) actual
third party commissions, (ii) AOL sales expenses not to exceed fifteen
percent (15%) of such aggregate amount, (iii) all other amounts, fees and
revenues received by AOL that are not attributed to third party integration
into the AOL Buying Directory by Onvia, including without limitation,
license fees, web design fees, fees for any other promotions by AOL of the
same third party (e.g., unrelated carriage within the AOL Network other
than in the AOL Buying Directory or for standard (non-integrated)
promotional carriage in the traditional advertising space on the AOL Buying
Directory), and revenues from software sales, and (iv) any amounts not
collected by AOL and/or more than ninety (90) days past due.
4. [Intentionally Omitted]
5. TERM; RENEWAL; TERMINATION.
--------------------------
5.1. Term. Unless earlier terminated as set forth herein, the initial
----
term of this Agreement will be twenty-four (24) months from and after
the Effective Date (the "Initial Term").
5.2. Renewal. (a) Upon conclusion of the Initial Term, AOL will have the
-------
right to renew the Agreement for a one-year renewal term (the
"Renewal Term" and together with the Initial Term, the "Term"),
provided that: (1) during such Renewal Term: (i) there shall be no
Impressions Commitment, (ii) Onvia shall not be obligated to pay an
additional carriage fee, (iii) AOL shall not be obligated to provide
any promotions provided for hereunder (e.g., as set forth in Exhibit
A hereto), (iv) AOL may, at its option, remove any links to, or
promotion or mention of, the RFQ Services and/or RFI Services
(including but not limited to the RFQ/RFI Promotional Area) from the
AOL Network following the expiration of the Term, unless mutually
agreeable terms for retaining such links and promotion can be agreed
upon; and (v) Onvia shall pay AOL the greater of (x) [* * *] of all
Transaction Margins arising from the sale of any products (e.g.,
regardless of whether such products are
9
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
produced by Onvia or are provided to Onvia by a third party merchant)
on the Co-Branded Site during the Renewal Term, but not services
(unless mutually agreed), or (y) the most preferable rates offered
under Onvia's then current affiliate program (in either case, payment
must be made on a quarterly basis within forty-five (45) days
following the end of the quarter in which the Transaction Margins
were generated); and (2) if, during the final quarter of the Initial
Term, Onvia consistently experiences substantial costs of maintaining
and upgrading the Co-Branded Site and AOL Buying Directory due to the
requirements of this Agreement, separate and apart from the costs
incurred by Onvia in maintaining and upgrading the other Onvia
Interactive Sites, the Parties will negotiate in good faith to arrive
at renewal terms which reduce those costs (provided that if
alternative renewal terms cannot be agreed upon, AOL shall have the
right to renew this Agreement as otherwise set forth herein). The
Renewal Term shall automatically commence following the expiration of
the Initial Term (or prior Renewal Term, as the case may be),
provided that AOL shall be entitled to terminate any such Renewal
Term with thirty (30) days prior written notice to Onvia. The Parties
may mutually agree to extend the Agreement for multiple additional
Renewal Terms. (b) In addition to the foregoing, at least sixty (60)
days before the end of the Initial Term, the Parties shall discuss in
good faith the possibility of agreeing on an alternative Impressions
Commitment, carriage plan, carriage fee, and related items which will
control during the Renewal Term instead of the terms set forth in
subpart (a)(1) above. (c) At the end of the Term when the AOL Buying
Directory is to be no longer maintained by Onvia hereunder, there
will be a reasonable transition period (the "Transition Period") of
mutually agreeable duration (not to be less than ninety (90) days)
during which the Parties' rights and obligations with respect to the
AOL Buying Directory shall survive and during which such period the
Parties will cooperate to facilitate the migration of AOL's third
party merchant partners that have been integrated into the AOL Buying
Directory, and AOL's AOL Buying Directory customers obtained during
the Term, to a different tool selected by AOL.
5.3. Continued Links. Upon expiration of the Term, AOL may, at its
---------------
discretion, continue to promote one or more "pointers" or links from
the AOL Network to the Standard Site and continue to use Onvia's
trade names, trade marks and service marks in connection therewith
(collectively, a "Continued Link"). So long as AOL maintains a
Continued Link, (a) Onvia shall pay AOL the most preferable rates
offered under Onvia's then current affiliate program (within thirty
(30) days of the end of each quarter during which the Continued Link
is maintained), or if no such affiliate program is then in effect,
Onvia shall pay AOL [* * *] of all Transaction Margins arising from
the sale of any products (e.g., regardless of whether such products
are produced by Onvia or are provided to Onvia by a third party
merchant) on the Standard Site (on a quarterly basis within forty-
five (45) days following the end of the quarter in which the
Transaction Margins were generated); (b) Sections 3.5, 3.6 and 3.7
along with the terms of Exhibit G hereto shall continue to apply with
respect to the Continued Link and any transactions arising therefrom;
(c) Onvia will continue to promote the Keyword Search Term provided
to it hereunder in accordance with the requirements of this
Agreement; and (d) all of AOL's rights with respect to the area on
which the AOL Buying Directory resides shall continue as they existed
during the Term.
5.4. Termination for Breach. Except as expressly provided elsewhere in
----------------------
this Agreement, either Party may terminate this Agreement at any time
in the event of a material breach of the Agreement by the other Party
which remains uncured after thirty (30) days written notice thereof
to the other Party (or such shorter period as may be specified
elsewhere in this Agreement); provided that AOL will not be required
to provide notice to Onvia in connection with Onvia's failure to make
any payment to AOL required hereunder, and the cure period with
respect to any scheduled payment will be fifteen (15) days from the
date for such payment provided for herein. Notwithstanding the
foregoing, in the event of a material breach of a provision that
expressly requires action to be completed within an express period
shorter than 30 days, either Party may terminate this Agreement if
the breach remains uncured after written notice thereof to the other
Party. In the event of a
10
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
material breach of this Agreement by AOL, AOL may refund a pro rata
percentage of the carriage fee paid by Onvia pursuant to Section 3.1
hereof, to the extent that AOL has actually received such payments
from Onvia and such payments remain unearned at the time of refund
(i.e., a proportionate percentage of the Impressions Commitment has
not yet been delivered).
5.5. Termination for Bankruptcy/Insolvency. Either Party may terminate
-------------------------------------
this Agreement immediately following written notice to the other
Party if the other Party (i) ceases to do business in the normal
course, (ii) becomes or is declared insolvent or bankrupt, (iii) is
the subject of any proceeding related to its liquidation or
insolvency (whether voluntary or involuntary) which is not dismissed
within ninety (90) calendar days or (iv) makes an assignment for the
benefit of creditors.
5.6. Termination on Change of Control.
--------------------------------
(a) (i) Onvia shall promptly notify AOL in writing in the event
that Onvia enters into any agreement with any Interactive Service
intending to consummate or to potentially consummate any Change of
Control of Onvia or which could reasonably result in an Interactive
Service controlling Onvia (other than a Qualifying Investor (as
defined below)), notifying AOL of the existence of such agreement and
the nature of the transaction contemplated thereby (subject to any
applicable confidentiality provisions therein and any applicable
securities laws) (and in any event, such notice shall occur no later
than one (1) day following any press release or other public
announcement thereof by Onvia). For purposes hereof, a "Qualifying
Investor" shall mean any current investor in Onvia which is listed on
Schedule 5.6 hereto, if and to the extent that either, (1) such
investor is not an Interactive Service or (2) if such investor is an
Interactive Service, at any time, then such investor only so
qualifies because of a distinctly operating subsidiary of the same
parent (each, a "Distinct Affiliate"), in which case, such investor
shall be considered a Qualified Investor only if and to the extent
that the Distinct Affiliate(s) which cause it to qualify as an
Interactive Service are (and are planned in the foreseeable future by
such investor to be) held and operated separately from the operations
of Onvia as contemplated by this Agreement (in which case, neither
Onvia nor such investor may cause or permit AOL User data or
Confidential Information to be shared between Onvia and such other
Distinct Affiliate). Such notice shall be referred to herein as the
"Agreement Notice". In negotiating such an agreement, Onvia shall use
commercially reasonable efforts to avoid confidentiality provisions
which would restrict its ability to provide AOL with the Agreement
Notice as described herein. However, if Onvia is restricted from
providing such Agreement Notice immediately upon entering into such
an agreement due to applicable confidentiality restrictions of such
agreement or applicable securities laws, then Onvia shall notify AOL
of the existence and nature of such agreement as soon as such
restrictions no longer prevent it from doing so. (ii) Onvia also
shall provide prompt written notice to AOL of the occurrence of the
Change of Control (such notice to be referred to herein as the
"Consummation Notice"). (iii) In the event that Onvia enters into an
agreement with an Interactive Service as contemplated in this
section, AOL shall have the right to terminate this Agreement on or
after the date that is the earlier of (a) six (6) months after the
date of the Agreement Notice, or (b) the date of the Change of
Control; provided, however, that AOL must give Onvia thirty (30) days
prior written notice of its intent to terminate.
(b) In the event of a Change of Control of AOL (other than the
consummation, in any form, of AOL's planned acquisition of, or merger
or consolidation with, Time Warner Inc., which was announced to the
public on January 10, 2000), AOL may terminate this Agreement by
providing sixty (60) days prior written notice of such intent to
terminate.
5.7. Press Releases. Each Party will submit to the other Party, for its
---------------
prior written approval, which will not be unreasonably withheld or
delayed, any press release or any other public
11
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
statement regarding the transactions contemplated hereunder ("Press
Release"). The Parties shall obey all applicable securities laws
(e.g., governing any applicable "quiet period" relating to any
securities filings). Notwithstanding the foregoing, either Party may
issue Press Releases and other disclosures as required by law without
the consent of the other Party and in such event, the disclosing
Party will provide at least three (3) business days prior written
notice of such disclosure. The failure by one Party to obtain the
prior written approval of the other Party prior to issuing a Press
Release (except as required by law) shall be deemed a material breach
of this Agreement. Because it would be difficult to precisely
ascertain the extent of the injury caused to the non-breaching party,
in the event of such material breach under this Section 5.7, the non-
breach party may elect to either (a) terminate this Agreement
immediately upon notice to the other Party, or (b) as liquidated
damages, elect to modify the Impression commitment hereunder by
fifteen percent (15%) (either an increase in Impressions if AOL has
materially breached the Agreement or a decrease in Impressions if
Onvia has materially breached the Agreement). The Parties agree that
the liquidated damages set forth are a reasonable approximation of
the injury that would be suffered by the non-breaching Party.
6. NETSCAPE TOOLS, UTILITIES & PROGRAMMING.
---------------------------------------
6.1. Netscape Business Directory. Onvia will make commercially reasonable
---------------------------
efforts to integrate the Netscape Business Directory into
contextually relevant areas of its Standard Site. Onvia's business
users shall have access to and use of the Netscape Business Directory
(subject to all generally applicable terms thereof, as available
online). If mutually agreed, Onvia and its business users integrated
into the Netscape Business Directory will qualify for specific
Netscape "members only" reduced-price and/or enhanced value products
and services. In addition, if mutually agreed, Onvia business users
will be able to search for and find buyers and sellers and to
leverage Netscape generally available value-added business-to-
business e-commerce hosted services such as auctions, catalog buying,
and bid-quote. Onvia understands and agrees that the Netscape
Business Directory product may be structured by AOL to be provided by
Netscape or by a third party, and that, if provided by a third party,
AOL shall not be required to force such third party to accept the
terms of this Section 6.1, and Onvia may not be able to so
participate.
6.2. Netscape Business Card. Onvia will evaluate in good faith whether
----------------------
it will agree to its integration into a co-branded Netscape Business
Card (with any such integration to be subject to all generally
applicable terms thereof), enabling Onvia to provide specific photos
and programming related to its products and services and leverage
Netscape generally available value-added business-to-business e-
commerce services. If mutually agreed, Onvia and Netscape will use
good faith efforts to enable Onvia to customize content and
programming into a Netscape Business Card. If mutually agreed, Onvia
will offer to its partners and users accessing Onvia's generally
available web sites, the opportunity to be integrated into a co-
branded Netscape Business Card (subject to all generally applicable
terms thereof).
6.3. Netscape Programming. Netscape will provide Onvia with content and
--------------------
programming targeted at its business users through co-branded areas.
Onvia will use commercially reasonable efforts to integrate
Netscape's content and programming in contextually relevant areas of
the Onvia web based applications, and to provide navigational links
within contextually relevant areas of the Onvia web based
applications to the co-branded areas containing the Netscape
programming. The Parties will mutually agree upon the nature of
Netscape content and programming to be integrated on the Onvia web
based applications and the carriage/integration plan for such content
and programming. Any and all such programming shall appear only in
the Co-Branded Site or, if on the Standard Site, then only on a co-
branded screen or screens thereof (a "Co-Branded Area of the Standard
Site") upon terms to be mutually agreed.
12
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
6.4. AOL Buying Directory. Onvia will build, operate and provide to AOL a
--------------------
best-of-breed, ingredient-branded buying directory in a manner set
forth herein (including without limitation in this Section 6.4,
Exhibit A-1 and Exhibit I) (the "AOL Buying Directory").
6.4.1. Clickstream. Subject to AOL's right to redesign (or modify,
-----------
etc.) elements of the AOL Network pursuant to Section 1.1
hereof, the AOL Buying Directory will be linked to as
follows: (i) the [* * *] page (or substantively similar area)
within Netcenter (initially, and later within the [* * *]),
will contain an [* * *] link to, among other areas, a
Netcenter [* * *] area (or substantively similar area); (ii)
which will contain [* * *] links to, among other areas, the
AOL Buying Directory, and the AOL Aggregated RFQ Area; (iii)
with respect to the AOL Buying Directory, the directory
products and services categories space shall be approximately
[* * *] of the programmable page, with [* * *] placement;
(iv) with respect to the AOL Aggregated RFQ Area page, Onvia
shall have, on the [* * *] of the page, a total of [* * *] of
the aggregate available partner page real estate (including
an area constituting [* * *] of the area above the fold and
an area constituting [* * *] of the area below the fold), to
provide its RFQ/RFI Promotional Area in accordance herewith,
with the exact placement on such page to be mutually agreed;
(v) with respect to the AOL Buying Directory sub-category
page, to the extent such page is deemed advisable by AOL, the
sub-categories space shall be up to [* * *] of the
programmable page, with [* * *] placement; (vi) the results
page of the AOL Buying Directory shall contain an [* * *]
link to the RFQ Services on the Co-Branded Site; (vii) for [*
* *] from and after the date on which the Co-Branded Site
first launches, there shall be [* * *] on the [* * *] to the
[* * *] and [* * *] to the [* * *] (and prior to launch of
such areas, AOL shall instead link directly to the relevant
portion of the [* * *]); and (viii) with respect to the AOL
Buying Directory search results page, the search results
space shall be approximately [* * *] of the programmable
page, and at least one Onvia search result shall be placed [*
* *] (no [* * *] than other general [* * *] merchant partner
search results (standard page type size, font, etc. to be
determined by AOL)) (subject to Onvia's having a directly
relevant product); AOL controls the order of the search
results, but initially, the list of products or services
shall be sorted by the following criteria: default is by [* *
*], and/or by [* * *] (e.g., [* * *] to AOL), but could also
be sorted by, e.g., [* * *]; provided, AOL shall have the
right to (a) add up to [* * *] additional sort criteria and
(b) change the sort order up to [* * *] times during the
Term, unless otherwise agreed to by the Parties. Additional
links also may be integrated throughout the [* * *] (or a
comparable area if the [* * *] is not launched).
Notwithstanding anything to the contrary herein, any
reference in this Agreement to placement on any search and/or
results page or area shall in each case be subject to
qualification under the parameters of such search or result.
6.4.2. Management; Operations. The AOL Buying Directory will
----------------------
enable AOL Users to search across Onvia's inventory of
products and services along with such other third-party
inventory integrated into the AOL Buying Directory in
accordance Exhibit A-1 and Exhibit I hereto. AOL will have
design approval rights for user interface and display
elements of the AOL Buying Directory and results pages (e.g.,
the manner in which results pages will list AOL third party
partner inventory as well as Onvia inventory). As long as
Onvia's products and services are directly relevant to the
queried item or service, AOL will list at least one of
Onvia's products or services [* * *] on the first results
page. Upon AOL's request, Onvia will integrate into the AOL
Buying Directory (including without limitation the results
pages thereof), third-party services and products, in a
manner specified by AOL and in accordance with the schedule
set forth in Exhibit A-1 and Exhibit I hereto. The products
and services of Onvia to be integrated into the AOL Buying
Directory are limited to the categories of products and
services set forth in Exhibit
13
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
D hereto but shall include a comprehensive offering of such
categories as set forth on Exhibit A-1. Although the AOL
Buying Directory may reside within the AOL Network rather than
the Co-Branded Site, all express obligations, representations
and warranties of Onvia herein with respect to the Co-Branded
Site (e.g., management, quality, competitiveness, etc.), shall
apply equally with respect to the AOL Buying Directory (except
as otherwise expressly set forth in this Section 6.4).
Notwithstanding anything to the contrary, AOL owns, operates
and controls all areas on which the AOL Buying Directory
resides, including the Advertising inventory therein; provided
that Onvia retains any existing ownership of (i) any
proprietary underlying technology related to the AOL Buying
Guide as provided by Onvia to AOL, and (ii) the Co-Branded
Site Buying Directory (defined below), subject to the terms
hereof. In addition to the other operational requirements of
this Agreement, Onvia shall ensure that the AOL Buying
Directory performs searches and displays results at least as
quickly as the buying directory then-currently available on
the Standard Site. Such results shall be displayed in a manner
designated by AOL from time to time, which may include two
columns. If and when (in AOL's discretion) AOL launches the
B2B Area, then Onvia shall promptly make the AOL Buying
Directory available to AOL for integration therein as set
forth in Exhibits A-1 and I, and Onvia shall cooperate with
AOL to assist in such integration.
6.4.3. Co-Branded Site Buying Directory. In addition to the AOL
--------------------------------
Buying Directory (which shall incorporate certain AOL merchant
partners and be located within the AOL Network, to the extent
set forth herein, including as set forth in Exhibits A-1 and
I), Onvia shall also provide and operate the same (or a
substantially similar version of the same) or substantially
similar buying directory within the Co-Branded Site (subject
to all requirements applicable to the Co-Branded Site,
including without limitation, co-branding thereof), which such
version of such directory may or may not also incorporate
AOL's merchant partners therein as required for the AOL Buying
Directory (the "Co-Branded Site Buying Directory").
6.4.4. [* * *] Buying Directory. Subject to Onvia's continued
------------------------
compliance with the terms hereof (including without limitation
by supplying a consistently "best-of-breed" buying directory
product and satisfying other performance requirements in
compliance with the terms of Exhibit A-1, E and J as to the
AOL Buying Directory), AOL shall not [* * *] buying directory
as the [* * *] buying directory in the [* * *] during the [* *
*]. Notwithstanding anything to the contrary herein, AOL may,
even within the [* * *], (i) sell Advertisements to, and
otherwise promote, any providers of similar directories, (ii)
promote any [* * *] related buying guides and any [* * *]
buying guide, and (iii) promote any [* * *] directory in any
[* * *] communities (e.g., a [* * *] industry [* * *]
directory or an [* * *] industry [* * *] directory) in the [*
* *] (even if such [* * *] directory includes traditional [* *
*] products (e.g., a printer, even if sold within a [* * *]
industry [* * *] directory)).
6.5 RFQ Services and RFI Services. Onvia will build, operate and provide
-----------------------------
to AOL best-of-breed areas for the RFQ Services and RFI Services in a
manner set forth herein, to be operated via the Co-Branded Site, but
promoted via links and related promotional and/or explanatory content
in the AOL Network (such promotional areas, linking to such services
in the Co-Branded Site, the "RFQ/RFI Promotional Areas"), for AOL to
incorporate non-exclusively into the AOL Network (including without
limitation in any B2B Area (including without limitation in any AOL
owned and operated RFQ and RFI area(s) programmed by AOL in its
discretion) aggregating third party RFQ and/or RFI partners of AOL)
(the "AOL Aggregated RFQ Area")). AOL will have design approval
rights for user interface and display elements of the entire AOL
Aggregated RFQ Area, including without limitation in the RFQ/RFI
Promotional Areas. Although the RFQ/RFI Promotional Areas may reside
14
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
within the AOL Network rather than the Co-Branded Site, all express
obligations, representations and warranties of Onvia herein with
respect to the Co-Branded Site (e.g., management, quality,
competitiveness, etc.) shall apply equally with respect to the RFQ/RFI
Promotional Areas (except as otherwise expressly set forth in this
Section 6.5). In addition to the other operational requirements of
this Agreement, Onvia shall ensure that the RFQ/RFI Promotional Areas
perform at least as quickly as the comparable areas then-currently
available on the Standard Site and such results are displayed in a
manner reasonably designated by AOL from time to time. If and when
AOL launches the B2B Area, then Onvia shall promptly make the RFQ/RFI
Promotional Areas available to AOL for integration therein as set
forth on Exhibits A-1 and I, and Onvia shall cooperate with AOL to
assist in such integration. Onvia will provide data for AOL's then-
standard API (e.g., an HTTP application interface which accepts as
input the user's screenname and returns the following data items in
XML encoded form: user ID, RFQ (or RFI) number, number of bids, low
bid, high bid, and any other applicable information) within the
RFQ/RFI Promotional Area, with Onvia's consent (not to be unreasonably
withheld or delayed), and any other mutually agreeable location.
7. MANAGEMENT COMMITTEE/ARBITRATION.
--------------------------------
7.1. Management Committee. The Parties will act in good faith and use
---------------------
commercially reasonable efforts to promptly resolve any claim,
dispute, claim, controversy or disagreement (each a "Dispute") between
the Parties or any of their respective subsidiaries, affiliates,
successors and assigns under or related to this Agreement or any
document executed pursuant to this Agreement or any of the
transactions contemplated hereby. If the Parties cannot resolve the
Dispute within such time frame, the Dispute will be submitted to the
Management Committee for resolution. For ten (10) days following
submission of the Dispute to the Management Committee, the Management
Committee will have the exclusive right to resolve such Dispute;
provided further that the Management Committee will have the final and
exclusive right to resolve Disputes arising from any provision of the
Agreement which expressly or implicitly provides for the Parties to
reach mutual agreement as to certain terms. If the Management
Committee is unable to amicably resolve the Dispute during the ten-day
period, then the Management Committee will consider in good faith the
possibility of retaining a third party mediator to facilitate
resolution of the Dispute. In the event the Management Committee
elects not to retain a mediator, the dispute will be subject to the
resolution mechanisms described below. "Management Committee" will
mean a committee made up of a senior executive from each of the
Parties for the purpose of resolving Disputes under this Section 7 and
generally overseeing the relationship between the Parties contemplated
by this Agreement. Neither Party will seek, nor will be entitled to
seek, binding outside resolution of the Dispute unless and until the
Parties have been unable amicably to resolve the Dispute as set forth
in this Section 7 and then, only in compliance with the procedures set
forth in this Section 7.
7.2. Arbitration. Except for Disputes relating to issues of (i)
------------
proprietary rights, including but not limited to intellectual property
and confidentiality, and (ii) any provision of the Agreement which
expressly or implicitly provides for the Parties to reach mutual
agreement as to certain terms (which will be resolved by the Parties
solely and exclusively through amicable resolution as set forth in
Section 7.1), any Dispute not resolved by amicable resolution as set
forth in Section 7.1 will be governed exclusively and finally by
arbitration. Such arbitration will be conducted by the American
Arbitration Association ("AAA") in Washington, D.C. and will be
initiated and conducted in accordance with the Commercial Arbitration
Rules ("Commercial Rules") of the AAA, including the AAA Supplementary
Procedures for Large Complex Commercial Disputes ("Complex
Procedures"), as such rules will be in effect on the date of delivery
of a demand for arbitration ("Demand"), except to the extent that such
rules are inconsistent with the provisions set forth herein.
Notwithstanding the foregoing, the Parties may agree in good faith
that the Complex
15
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
Procedures will not apply in order to promote the efficient
arbitration of Disputes where the nature of the Dispute, including
without limitation the amount in controversy, does not justify the
application of such procedures.
7.3. Selection of Arbitrators. The arbitration panel will consist of three
-------------------------
arbitrators. Each Party will name an arbitrator within ten (10) days
after the delivery of the Demand. The two arbitrators named by the
Parties may have prior relationships with the naming Party, which in a
judicial setting would be considered a conflict of interest. The third
arbitrator, selected by the first two, should be a neutral
participant, with no prior working relationship with either Party. If
the two arbitrators are unable to select a third arbitrator within ten
(10) days, a third neutral arbitrator will be appointed by the AAA
from the panel of commercial arbitrators of any of the AAA Large and
Complex Resolution Programs. If a vacancy in the arbitration panel
occurs after the hearings have commenced, the remaining arbitrator or
arbitrators may not continue with the hearing and determination of the
controversy, unless the Parties agree otherwise.
7.4. Governing Law. The Federal Arbitration Act, 9 U.S.C. Secs. 1-16, and
--------------
not state law, will govern the arbitrability of all Disputes. The
arbitrators will allow such discovery as is appropriate to the
purposes of arbitration in accomplishing a fair, speedy and cost-
effective resolution of the Disputes. The arbitrators will reference
the Federal Rules of Civil Procedure then in effect in setting the
scope and timing of discovery. The Federal Rules of Evidence will
apply in toto. The arbitrators may enter a default decision against
any Party who fails to participate in the arbitration proceedings.
7.5. Arbitration Awards. The arbitrators will have the authority to award
-------------------
compensatory damages only. Any award by the arbitrators will be
accompanied by a written opinion setting forth the findings of fact
and conclusions of law relied upon in reaching the decision. The award
rendered by the arbitrators will be final, binding and non-appealable,
and judgment upon such award may be entered by any court of competent
jurisdiction. The Parties agree that the existence, conduct and
content of any arbitration will be kept confidential and no Party will
disclose to any person any information about such arbitration, except
as may be required by law or by any governmental authority or for
financial reporting purposes in each Party's financial statements.
7.6. Fees. Each Party will pay the fees of its own attorneys, expenses of
----
witnesses and all other expenses and costs in connection with the
presentation of such Party's case (collectively, "Attorneys' Fees").
The remaining costs of the arbitration, including without limitation,
fees of the arbitrators, costs of records or transcripts and
administrative fees (collectively, "Arbitration Costs") will be borne
equally by the Parties. Notwithstanding the foregoing, the arbitrators
may modify the allocation of Arbitration Costs and award reasonable
Attorneys' Fees in those cases where fairness dictates a different
allocation of Arbitration Costs between the Parties and an award of
reasonable Attorneys' Fees to the prevailing Party as determined by
the arbitrators.
7.7. Non Arbitratable Disputes. Any Dispute that is not subject to final
--------------------------
resolution by the Management Committee or to arbitration under this
Section 7 or by law (collectively, "Non-Arbitration Claims") will be
brought in a court of competent jurisdiction in the Commonwealth of
Virginia. Each Party irrevocably consents to the exclusive
jurisdiction of the courts of the Commonwealth of Virginia and the
federal courts situated in the Commonwealth of Virginia, over any and
all Non-Arbitration Claims and any and all actions to enforce such
claims or to recover damages or other relief in connection with such
claims.
8. iPLANET. Netscape and Onvia will use good faith efforts to evaluate a
-------
relationship with iPlanet for transaction and commerce related applications
and enterprise software on terms to be mutually agreed upon by the Parties.
The Parties will use good faith efforts to develop a
16
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
specifications requirements document. Netscape will dedicate sufficient
resources to develop and customize such a solution in accordance with the
terms hereof.
9. MISCELLANEOUS. Onvia will approach AOL and allow AOL to commence timely,
-------------
meaningful, mutual discussions regarding the opportunity for AOL to
participate in future small business, SOHO, vertical trading community
activities provided by Onvia, including, without limitation, access,
vertical trading community platforms, and trading systems, before having
extensive discussions or entering into agreements or commitments with any
Interactive Service other than AOL regarding the same. If Onvia approaches
AOL regarding the possibility of a reasonably potential business
relationship with respect to a new business-to-business product or service
to be offered by AOL on the AOL Network, AOL will use good faith efforts to
discuss the possibility of such a relationship with Onvia.
10. STANDARD TERMS. The Standard Online Commerce Terms & Conditions set forth
--------------
on Exhibit F attached hereto and Standard Legal Terms & Conditions set
forth on Exhibit G attached hereto are each hereby made a part of this
Agreement.
[SIGNATURE PAGE FOLLOWS]
17
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
Effective Date.
AMERICA ONLINE, INC. ONVIA.COM, INC.
By: /s/ By: /s/
------------------------------- -------------------------------
Name Name:
Title: Title:
18
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
EXHIBIT A
Placement/Promotion
-------------------
I. Carriage Plan
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------
AREA DESCRIPTION
-----------------------------------------------------------------------------------------------------
<S> <C> <C>
Level 1 Promotions [* * *] Impressions
-----------------------------------------------------------------------------------------------------
1 Netscape Netcenter - Business/Business Rotational Banners
Toolkit Articles
-----------------------------------------------------------------------------------------------------
2 Netscape Netcenter - Business/Business Rotational Banners
Toolkit Articles
-----------------------------------------------------------------------------------------------------
3 Netscape Netcenter - Business /Small Rotational Banners and text links
Business - Main
-----------------------------------------------------------------------------------------------------
4 Netscape Netcenter - Small Business Rotational Banners
/Office Supplies - Sponsorship
-----------------------------------------------------------------------------------------------------
5 Netscape Netcenter - Business/Business - Rotational Text
Daily News
-----------------------------------------------------------------------------------------------------
6 Netscape Netcenter - Web Site Garage Tune Rotational Banners
- Up
-----------------------------------------------------------------------------------------------------
7 Netscape Netcenter - Business/E Business: Rotational Banners
Online Essentials Step 5 (improve your
site) Sponsorship
-----------------------------------------------------------------------------------------------------
8 Netscape Netcenter - Site Central - Rotational Text
Business
-----------------------------------------------------------------------------------------------------
9 AOL Service - Business News Center Rotational Banners
-----------------------------------------------------------------------------------------------------
10 AOL Service - Industry - Computers & Rotational Banners
Technology
-----------------------------------------------------------------------------------------------------
11 AOL Service - AOL Workplace Rotational Banners
-----------------------------------------------------------------------------------------------------
12 AOL.com - Business & Careers/ Office Rotational Banners
Supplies Directory
-----------------------------------------------------------------------------------------------------
13 CompuServe - Business/Business - Main Rotational Banners
-----------------------------------------------------------------------------------------------------
14 CompuServe - Business/Forum - Business Rotational Banners
-----------------------------------------------------------------------------------------------------
3 Cross Brands - Classifieds Plus - AOL.com Rotational Banners
- Business Services
-----------------------------------------------------------------------------------------------------
4 Cross Brands - Search 2000: Business Main Rotational Banners
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
</TABLE>
19
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
Level 2 Promotions [* * *] Impressions
-----------------------------------------------------------------------------------------------------
<S> <C> <C>
1 Netscape Netcenter - Tech/Computing - Run Rotational Banner and text links
of Netscape Channel
-----------------------------------------------------------------------------------------------------
2 Netscape Netcenter - Tech/Computing - Rotational Banners
Computing - Smart Update
-----------------------------------------------------------------------------------------------------
3 Netscape Netcenter - Tech/Computing - Run Rotational Banners and text links
of Computing and Internet
-----------------------------------------------------------------------------------------------------
4 Netscape Netcenter - Site Central Rotational Banners
Business - Run of Site Central: Computing
-----------------------------------------------------------------------------------------------------
5 Netscape Netcenter - Tech/Computing - Rotational Banners
DevEdge sponsorship
-----------------------------------------------------------------------------------------------------
6 AOL Service - Business/Business Newswire Rotational Banners
Press Release
-----------------------------------------------------------------------------------------------------
7 AOL Service - Business Newswire Press Rotational Banners
Release
-----------------------------------------------------------------------------------------------------
8 AOL Service - Business News / News Feeds Rotational Banners
-----------------------------------------------------------------------------------------------------
9 AOL Service - Business/Market Day Report Rotational Banners
-----------------------------------------------------------------------------------------------------
10 AOL Service - Business Week / Cover Story Rotational Banners
-----------------------------------------------------------------------------------------------------
11 AOL Service - Market Player Sponsorship/ Rotational Banners
Market Player Button
-----------------------------------------------------------------------------------------------------
12 AOL Service - Market Player Sponsorship/ Rotational Banners
Market Player Badge
-----------------------------------------------------------------------------------------------------
13 AOL Service - Computing/Search & Explore Rotational Banners
AOL Computing Permanent Sponsorship
-----------------------------------------------------------------------------------------------------
14 AOL Service - Computing/ Run of Computing Rotational Banners
-----------------------------------------------------------------------------------------------------
15 AOL.com - Business & Careers/ Yellow Rotational Banners
Pages - Computers/Software
-----------------------------------------------------------------------------------------------------
16 CompuServe - Business/Forum - Computing Rotational Banners
Support
-----------------------------------------------------------------------------------------------------
17 CompuServe - Run of Computing Rotational Banners
-----------------------------------------------------------------------------------------------------
18 [* * *] Rotational Banners
-----------------------------------------------------------------------------------------------------
19 [* * *] Rotational Banners
-----------------------------------------------------------------------------------------------------
20 [* * *] Rotational Banners
-----------------------------------------------------------------------------------------------------
</TABLE>
20
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
Level 3 Promotions: [* * *] Impressions
-----------------------------------------------------------------------------------------------------
<S> <C> <C>
1 Netscape Netcenter - Run of Personal Rotational Banners and Text links
Finance
-----------------------------------------------------------------------------------------------------
2 Netscape Netcenter - Site Central/Run of Rotational Banners and Text links
Site Central
-----------------------------------------------------------------------------------------------------
3 AOL Service - Market Player Rotational Banners
Sponsorship/Personal Finance Stock Quotes
-----------------------------------------------------------------------------------------------------
4 AOL Service - Market Player Rotational Banners
Sponsorship/Run of Personal Finance
-----------------------------------------------------------------------------------------------------
5 AOL.com - Computing/Run of Computing Rotational Banners
-----------------------------------------------------------------------------------------------------
6 CompuServe - Run of Personal Finance Rotational Banners
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
Level 4 Promotions: [* * *] Impressions
-----------------------------------------------------------------------------------------------------
1 Netscape Netcenter - Homepage integration Integrated Banner
-----------------------------------------------------------------------------------------------------
2 Netscape Netcenter - Homepage Rotational Banners
-----------------------------------------------------------------------------------------------------
3 AOL.com - Run of Yellow Pages Rotational Banners
-----------------------------------------------------------------------------------------------------
4 [* * *] Rotational Banners
-----------------------------------------------------------------------------------------------------
5 Cross Brands - Run of Calendar Rotational Banners
-----------------------------------------------------------------------------------------------------
6 Cross Brands - Run of Classifieds Plus Rotational Banners
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
Level 5 Promotions: [* * *] Impressions
-----------------------------------------------------------------------------------------------------
1 Netscape Netcenter - Run of Service Rotational Textlinks
textlinks
-----------------------------------------------------------------------------------------------------
2 AOL Service - Run of Service Rotational Banners
-----------------------------------------------------------------------------------------------------
3 AOL Service - Run of Email in-box Rotational Banners
-----------------------------------------------------------------------------------------------------
4 CompuServe - Run of Compuserve.com Rotational Banners
-----------------------------------------------------------------------------------------------------
5 CompuServe - Run of CompuServe
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
Level 6 Promotions: [* * *] Impressions
-----------------------------------------------------------------------------------------------------
1 [* * *] Rotational Banners
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
</TABLE>
21
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
Integrated Impressions:
<TABLE>
<CAPTION>
Integrated Impressions per Section 3.4: [* * *] Impressions (over 18 months)
-----------------------------------------------------------------------------------------------------
<S> <C> <C>
1 AOL Buying Directory* Fixed Placement on [* * *] page as [* *
*] by [* * *]
-----------------------------------------------------------------------------------------------------
2 AOL Aggregated RFQ Area* Fixed Placement
-----------------------------------------------------------------------------------------------------
</TABLE>
* Prior to launch of the AOL Buying Directory or the AOL Aggregated RFQ Area,
Impressions linking to the Co-Branded Site Buying Directory, or to the RFQ
Services or RFI Services within the Co-Branded Site, shall count as such
Integrated Impressions.
22
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
AOL Canada Carriage:
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------
AREA DESCRIPTION
----------------------------------------------------------------------------------------------------------
Netscape.ca Promotions [* * *] Impressions
----------------------------------------------------------------------------------------------------------
<S> <C>
1 Netscape.ca - Founding Co-Sponsor: Small Rotational Banners
Business Channel
----------------------------------------------------------------------------------------------------------
2 Netscape.ca - Small Business/Main page - Permanent Placement
Tip of the Day - Permanent placement
----------------------------------------------------------------------------------------------------------
3 Netscape.ca - Small Business/Business Rotational Banners
Finance - Banner rotation
----------------------------------------------------------------------------------------------------------
4 Netscape.ca - Small Business/ Best of Rotational Banners
E-commerce for small business - banner
rotation
----------------------------------------------------------------------------------------------------------
5 Netscape.ca - Homepage Rotational Banners & Text links
----------------------------------------------------------------------------------------------------------
6 Netscape.ca - Smart Update Rotational Banners
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
AOL.ca Promotions [* * *] Impressions
----------------------------------------------------------------------------------------------------------
1 AOL.ca - Homepage: Branded Button - Permanent Placement
Permanent Placement
----------------------------------------------------------------------------------------------------------
2 AOL.ca/Onvia - Co-branded Small Business Onvia creating separate linking URL for
Channel - AOL.ca members that leads directly to
Oniva's Canadian content. This will be
linked to from AOL.ca homepage and
provide Onvia with permanent, integrated
placement.
----------------------------------------------------------------------------------------------------------
</TABLE>
23
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
Tier Exchange. Except for any Promotions identified as permanent
-------------
placements (e.g., Anchor Tenancies), Onvia may elect to redistribute
Promotions among the tier levels listed herein in accordance with the
procedures set forth herein and AOL's then-current guidelines for re-
allocating promotions. The exchange value of a new Promotion (with respect
to the number of Impressions received by Onvia for such new Promotion)
shall be based upon AOL's then current rate card rate for such new
Promotion in comparison to AOL's then-current rate card rate for the
replaced Promotion. All redistribution of Promotions shall be subject to
availability (including without limitation, availability limited by AOL
exclusivity and other preferential commitments) as reasonably determined by
AOL. Unless AOL otherwise consents in writing, in no event may Onvia: (i)
exchange Level 2, Level 3, Level 4 or Level 5 Impressions for Level 1 or
Level 6 Impressions; (ii) exchange Impressions within the AOL Canada
Carriage for other Impressions, or vice versa; or (iii) exchange Integrated
Impressions for other Impressions, or vice versa. Impressions may be
exchanged in blocks of a minimum of [* * *] Impressions. All exchanges of
Promotions and Impressions shall be permitted only for Promotions or
Impressions within the same AOL property (e.g., exchanges of Promotions
within the AOL Service may be made only for other Promotions within the AOL
Service). Requests by Advertiser to redistribute Impressions may be placed
no more frequently than twice per quarter, unless AOL otherwise agrees in
writing. No such request may be made until more than forty five (45) days
have elapsed since the commercial launch of the Co-Branded Site in
accordance with Section 2.1. For any reallocation of Impressions between
or among Levels which Onvia chooses to make pursuant hereto, Onvia agrees
and acknowledges that the reallocated Impressions may be delivered
differently than as originally described herein.
II. During the Term, subject to the terms and conditions hereof, Onvia shall
have the right to use the following Keyword Search Term on the AOL Service
(and the "Go Word" on CompuServe): "Onvia", linking to the Co-Branded Site.
24
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
EXHIBIT A-1
Products, Services, Programming, Applications and Integration Plan
------------------------------------------------------------------
A. Programming. Onvia shall deliver, update on a regular and consistent basis
-----------
(e.g., at least twice per day), and keep accurate and reasonably
competitive, the following products, services, programming and other
Content (the "Programming"), for use in the Co-Branded Site, or, upon AOL's
reasonable request, for promotion (e.g., promotions of special offers (as
described in Section 2.7) from time to time as determined by AOL) in whole
or in part, in the AOL Network (including without limitation in the B2B
Area), as determined by AOL in its reasonable discretion (except to the
extent otherwise set forth herein):
1. Tools. The best-of-breed (i) AOL Buying Directory, and (ii) RFQ/RFI
-----
Promotional Area (including the RFQ Services and RFI Services);
2. RFQ Service. a comprehensive offering of RFQ Service products,
-----------
services, programming and other Content, including the following:
Seller Activity, Seller Inbox Description, How to become a Seller, How
the system works, Buyer Activity, View Buyer Inbox, Submit Quote
Request, Billing Information, Shipping Information, Order Tracking,
View Past Orders;
3. RFI Service. a comprehensive offering of RFI Service products,
-----------
services, programming and other Content, including the following:
Seller Activity, Seller Inbox Description, How to become a Seller, How
the system works, Buyer Activity, View Buyer Inbox, Submit Quote
Request, Billing Information, Order Tracking, View Past Orders;
4. Other B2B Products and Services. a comprehensive offering of
-------------------------------
additional small business or business-to-business targeted products,
services, programming and other Content, including the following: The
Onvia Community, Success Toolkit, Road To Success, Expert Advice,
Forms, Worksheets, & How-To's, Networking, Finance, Marketing,
Management, Human Resources, Office Technology, Legal, Training,
Databank, Links, Databases, Cover Story, Charting small-business
success in the new economy, Breaking News, Up-to-the-minute reporting
of major business events, SOHO Corner, Small Business Today,
Washington Wire, Quick Clicks, and any other products and services
offered on the Standard Site as reasonably requested by AOL from time
to time; and
5. AOL Buying Directory Listings. the following additional products,
-----------------------------
services, programming and other Content with respect to the AOL Buying
Directory: Access to Onvia's approximately 25,000 business products,
including computer hardware, software, office supplies, business
machines, and best in class business services.
B. The AOL Buying Directory. The AOL Buying Directory (including without
------------------------
limitation, the category page, any sub-category pages, any results pages,
and any pages related thereto) shall reside within the AOL Network
(including without limitation in the B2B Area), except as otherwise
expressly set forth herein, and not in the Co-Branded Site. Onvia shall
use commercially reasonable efforts to build the AOL Buying Directory
within ninety (90) days from and after the execution hereof (and in no
event shall such period exceed one hundred twenty (120) days). Until the
AOL Buying Directory has been completed and is operational, including but
not limited to the integration of AOL's third party merchant partners
according to the schedule set forth herein, AOL may elect to link to the
Co-Branded Site Buying Directory (or, if the Co-Branded Site Buying
Directory is not completed and operational in accordance with the terms
hereof, to the corresponding buying directory on the Standard Site, which
shall appear to AOL Users with the branded headers and footers described in
Section 2.1 hereof). Onvia shall program the AOL Buying Directory such
that, if a user of the AOL Buying Directory clicks on an AOL merchant
25
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
partner's result on a search results page, such user shall be linked
directly to such AOL merchant partner's Interactive Site and the relevant
product detail page therein. The Parties expressly acknowledge and agree
that, as set forth in further detail in Section 6.4 (and subject to Onvia's
ownership rights expressly set forth in such Section 6.4), as between AOL
and Onvia, AOL owns and controls the AOL Network (and all portions thereof,
including without limitation the areas on which the AOL Buying Directory
and the AOL Aggregated RFQ Area reside), and AOL shall have editorial
discretion over the content on the AOL Buying Directory (including without
limitation, the category page, any sub-category pages and any results
pages) and shall own the advertising inventory therein.
1. Clickstream and Placement. AOL and Onvia further agree that a
-------------------------
`clickstream' path to access the AOL Buying Directory or the AOL
Aggregated RFQ Area shall be as set forth in Section 6.4 hereof.
2. Ingredient Branding. The AOL Buying Directory shall be branded as AOL
-------------------
determines in its reasonable discretion (but may only include
secondary "ingredient branding" of Onvia, which such secondary
attribution may be significantly less prominent than AOL's primary
branding (e.g. "AOL's Buying Directory -- powered by Onvia.com"),
e.g., in a relative level of prominence similar to PersonaLogic's
ingredient branding AOL Auto Center New Car Guide area or AOL Cats for
Kids areas as of the Effective Date, as available at:
http://www021.personalogic.aol.com/pl/system/pl.qanda?pl sid=c46q
-----------------------------------------------------------------
4sgv-1l31mwx-5480k&info=aol%2CSILVER%2Cautocenter&product=
----------------------------------------------------------
cars%2Caol%2Cautocenter
-----------------------
or
http://www025.personalogic.aol.com/pl/system/pl.qanda?pl sid=c46q
-----------------------------------------------------------------
6gv0-1l31mwy-60xlq&info=aol%2CSILVER%2Ckids&product=
----------------------------------------------------
cats%2Caol%2Ckids
-----------------
respectively (and as also shown on the following pages).
26
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
[NOTE: replace this page with print-out of following site]
http://www021.personalogic.aol.com/pl/system/pl.qanda?pl sid=c46q4sgv-1l31mwx-
-----------------------------------------------------------------------------
5480k&info=aol%2CSILVER%2Cautocenter&product=cars%2Caol%2Cautocenter
--------------------------------------------------------------------
27
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
[NOTE: replace this page with print-out of following site]
http://www025.personalogic.aol.com/pl/system/pl.qanda?pl sid=c46q6gv0-1l31mwy-
-----------------------------------------------------------------------------
60xlq&info=aol%2CSILVER%2Ckids&product=cats%2Caol%2Ckids
--------------------------------------------------------
28
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
EXHIBIT B
Definitions
-----------
The following definitions will apply to this Agreement:
Additional Onvia Channel. Any other distribution channel (e.g., an Interactive
------------------------
Service other than AOL) through which Onvia makes available an offering
comparable in nature to the Co-Branded Site.
Advertising Revenues. Aggregate amounts collected by AOL or its agents, as the
--------------------
case may be, arising from the license or sale of Advertisements that appear
within the Co-Branded Site Advertising Inventory in accordance with Section 2.9
of this Agreement, less AOL's Advertising Sales Commissions. Advertising
Revenues do not include amounts arising from Advertisements on any screens or
forms preceding, framing or otherwise directly associated with the Co-Branded
Site, which such screens and forms are owned and controlled exclusively by AOL.
Advertising Sales Commission. (i) Actual amounts paid as commission to third
----------------------------
party agencies by either buyer or seller in connection with sale of the
Advertisement or (ii) [* * *], in the event the Party has sold the Advertisement
directly and will not be deducting any third party agency commissions.
Advertisements. (a) Any advertisements, links, pointers, sponsorships, buttons,
--------------
banners, navigation, or any other placements or promotions; or (b) any other
services or rights to the extent generally recognized and used as a medium for
advertisements (including without limitation `affiliate programs' or referral
sales), in each case, whether for a fixed placement fee or a bounty based on
sales.
AOL Aggregated RFQ Areas. As defined in Section 6.5.
------------------------
AOL Buying Directory. As defined in Section 6.4.
--------------------
AOL Canada. The standard AOL Canada branded Canadian version of the AOL
----------
Service, which is optimized for narrow-band distribution, specifically excluding
(a) AOL.com, Netcenter or any other AOL Interactive Site, (b) the America Online
brand service and the international versions of the America Online service
(other than the Canadian version thereof) (e.g., AOL Japan), (c) the
CompuServe(R) brand service and any other CompuServe products or services (d)
"Driveway," "ICQ(TM)," "AOL NetFind(TM)," "AOL Instant Messenger(TM)," "Digital
City," "NetMail(TM)," "Electra," "Thrive," "Real Fans", "Love@AOL",
"Entertainment Asylum," "AOL Hometown," "My News" or any similar independent
product, service or property which may be offered by, through or with the
Canadian version of the America Online(R) brand service, (e) any programming or
Content area offered by or through the Canadian version of the America Online(R)
brand service over which AOL does not exercise complete operational control
(including, without limitation, Content areas controlled by other parties and
member-created Content areas), (f) any yellow pages, white pages, classifieds or
other search, directory or review services or Content offered by or through the
Canadian version of the America Online(R) brand service, and (g) any other
version of an America Online service which is materially different from the
standard narrow-band Canadian version of the America Online(R) brand service, by
virtue of its branding, distribution, functionality, Content or services,
including, without limitation, any co-branded version of the service or any
version distributed through any broadband distribution platform or through any
platform or device other than a desktop personal computer, provided, however,
that Onvia's rights herein, if any, in relation to any property, feature,
product or service which AOL or its affiliates may acquire subsequent to the
Effective Date and which then become part of AOL Canada, will be subject to
preexisting agreements to which AOL or any of its affiliates is bound as a
result of such acquisition
AOL Interactive Site. Any Interactive Site which is managed, maintained, owned
--------------------
or controlled by AOL or its agents.
29
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
AOL Look and Feel. The elements of graphics, design, organization,
------------------
presentation, layout, user interface, navigation and stylistic convention
(including the digital implementations thereof) which are generally associated
with AOL Interactive Sites.
AOL Member. Any authorized user of the AOL Service or CompuServe, including any
----------
sub-accounts using the AOL Service under an authorized master account.
AOL Network. (i) The AOL Service, (ii) AOL.com, (iii) CompuServe, (iv) Digital
-----------
City, (v) Netcenter, (vi) the B2B Area, (vii) AOL Canada, and (viii) any other
product or service owned, operated, distributed or authorized to be distributed
by or through AOL or its affiliates worldwide (and including those properties
excluded from the definitions of the AOL Service or AOL.com), and including the
AOL Buying Directory and the AOL Aggregated RFQ Area (including the RFQ/RFI
Promotional Area therein), but excluding the Co-Branded Site (including the Co-
Branded Site Buying Directory). It is understood and agreed that the rights of
Onvia relate only to the AOL properties to the extent expressly set forth herein
and not generally to the AOL Network.
AOL Purchaser. Any person or entity who enters the Co-Branded Site from the AOL
-------------
Network including, without limitation, from any third party area therein (to the
extent entry from such third party area is traceable through both Parties'
commercially reasonable efforts), and generates Transaction Margins (regardless
of whether such person or entity provides an e-mail address during registration
or entrance to the Co-Branded Site which includes a domain other than an
"AOL.com" domain), and provided that any person or entity who has previously
satisfied the definition of AOL Purchaser will remain an AOL Purchaser, and any
subsequent purchases by such person or entity (e.g., as a result of e-mail
solicitations or any off-line means for receiving orders requiring purchasers to
reference a specific promotional identifier or tracking code) will also give
rise to Transaction Margins hereunder (and will not be conditioned on the person
or entity's satisfaction of clauses (i) or (ii) above).
AOL Service. The standard narrow-band U.S. version of the America Online brand
-----------
service, specifically excluding (a) AOL.com, Netcenter or any other AOL
Interactive Site, (b) the international versions of an America Online service
(e.g., AOL Japan), (c) the CompuServe(R) brand service and any other CompuServe
products or services (d) "Driveway," "ICQ(TM)," "AOL NetFind(TM)," "AOL Instant
Messenger(TM)," "Digital City," "NetMail(TM)," "Electra", "Thrive", "Real Fans",
"Love@AOL", "Entertainment Asylum," "AOL Hometown," "My News" or any similar
independent product, service or property which may be offered by, through or
with the U.S. version of the America Online(R) brand service, (e) any
programming or Content area offered by or through the U.S. version of the
America Online(R) brand service over which AOL does not exercise complete
operational control (including, without limitation, Content areas controlled by
other parties and member-created Content areas), (f) any yellow pages, white
pages, classifieds or other search, directory or review services or Content
offered by or through the U.S. version of the America Online(R) brand service,
and (g) any other version of an America Online service which is materially
different from the standard narrow-band U.S. version of the America Online brand
service, by virtue of its branding, distribution, functionality, Content or
services, including, without limitation, any co-branded version of the service
or any version distributed through any broadband distribution platform or
through any platform or device other than a desktop personal computer; provided,
however, that Onvia's rights herein, if any, in relation to any property,
feature, product or service which AOL or its affiliates may acquire subsequent
to the Effective Date and which then become part of the AOL Service, will be
subject to preexisting agreements to which AOL or any of its affiliates is bound
as a result of such acquisition.
AOL User. Any user of the AOL Service, AOL.com, CompuServe, Digital City,
--------
Netcenter, or the AOL Network.
AOL.com. AOL's primary Internet-based AOL Interactive Site marketed under the
-------
"AOL.COM(TM)" brand, specifically excluding (a) the AOL Service, (b) Netcenter,
(c) any international versions of such site, (d) "ICQ," "AOL NetFind(TM)," "AOL
Instant Messenger(TM)," "NetMail(TM)," "AOL Hometown," "My News" or any similar
independent product or service offered by or through such site or any other AOL
Interactive Site, (e) any programming or Content area offered by or through such
site over which AOL does not exercise
30
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
complete operational control (including, without limitation, Content areas
controlled by other parties and member-created Content areas), (f) any
programming or Content area offered by or through such site which was operated,
maintained or controlled by the former AOL Studios division (e.g., Electra), (g)
any yellow pages, white pages, classifieds or other search, directory or review
services or Content offered by or through such site or any other AOL Interactive
Site, and (h) any other version of an AOL Interactive Site which is materially
different from AOL's primary Internet-based Interactive Site marketed under the
"AOL.COM(TM)" brand, by virtue of its branding, distribution, functionality,
Content or services, including, without limitation, any co-branded versions or
any version distributed through any broadband distribution platform or through
any platform or device other than a desktop personal computer; provided,
however, that Onvia's rights herein, if any, in relation to any property,
feature, product or service which AOL or its affiliates may acquire subsequent
to the Effective Date and which then become part of AOL.com, will be subject to
preexisting agreements to which AOL or any of its affiliates is bound as a
result of such acquisition.
B2B Area. The targeted, special purpose, business-to-business area, owned and
--------
controlled by AOL (which may be linked to from other areas of the AOL Network in
AOL's sole discretion), and which is the area expected to initially be a sub-
channel within the Small Business channel of Netcenter (and, at a later point,
possibly may, at AOL's option, form the entirety of the content of the Small
Business channel or be made into a Netcenter channel separate from the Small
Business channel, or may be an independently [* * *] area). The term "B2B Area"
specifically excludes: (a) the AOL Service, (b) other areas within Netcenter,
(c) any international versions of such site, (d) "ICQ," "AOL NetFind(TM)," "AOL
Instant Messenger(TM)," "NetMail(TM)," "AOL Hometown," "My News" or any similar
independent product or service offered by or through such site or any other AOL
Interactive Site, (e) any programming or Content area offered by or through such
site over which AOL does not exercise complete operational control (including,
without limitation, Content areas controlled by other parties and member-created
Content areas), (f) any programming or Content area offered by or through such
site which was operated, maintained or controlled by the former AOL Studios
division (e.g., Electra), (g) any yellow pages, white pages, classifieds or
other search, directory or review services or Content offered by or through such
site or any other AOL Interactive Site, and (h) any other version of an AOL
Interactive Site which is materially different from AOL's primary Internet-based
Interactive Site marketed under the "AOL.COM(TM)" brand, by virtue of its
branding, distribution, functionality, Content or services, including, without
limitation, any co-branded versions or any version distributed through any
broadband distribution platform or through any platform or device other than a
desktop personal computer; provided, however, that Onvia's rights herein, if
any, in relation to any property, feature, product or service which AOL or its
affiliates may acquire subsequent to the Effective Date and which then become
part of the B2B Area, will be subject to preexisting agreements to which AOL or
any of its affiliates is bound as a result of such acquisition.
Co-Branded Site. The specific customized area or web site to be promoted and
---------------
distributed by AOL hereunder through which Onvia will market and complete
transactions regarding its Products or services, as more fully described in
Section 2.
Co-Branded Site Advertising Inventory. Traditional advertising space
-------------------------------------
(including standard banners, buttons, text links, pointers, and sponsorships) in
the Co-Branded Site (including in the Co-Branded Site Buying Directory). Co-
Branded Site Advertising Inventory expressly excludes (i) any fully integrated
promotions (e.g., not banners or buttons), and (ii) any promotions for Onvia's
merchant partners which link to other areas within the Co-Branded Site (rather
than to a third party site) (e.g., where Onvia grants "premiere" status to
certain merchants). Co-Branded Site Advertising Inventory also shall be deemed
to exclude any and all advertising inventory on the AOL Network (which such
inventory is owned by AOL), including without limitation the B2B Area, AOL
Buying Directory (including the category pages, subcategory pages, and results
pages therein), and the AOL Aggregated RFQ Area (including the RFQ/RFI
Promotional Area).
Co-Branded Site Buying Directory. As defined in Section 6.4.
--------------------------------
Change of Control. (a) The consummation of a reorganization, merger,
-----------------
consolidation, sale or other disposition of substantially all of the assets of a
party (other than for the sole purpose of changing the
31
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
party's jurisdiction of incorporation) or (b) the acquisition by any
individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2)
of the Securities Exchange Act of 1933, as amended) of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under such Act) of more than 50%
of either (i) the then outstanding shares of common stock of such party; or (ii)
the combined voting power of the then outstanding voting securities of such
party entitled to vote generally in the election of directors.
CompuServe. The standard, narrow-band U.S. version of the CompuServe brand
-----------
service, specifically excluding (a) any international versions of such service,
(b) any web-based service including "compuserve.com", "cserve.com" and "cs.com",
or any similar product or service offered by or through the U.S. version of the
CompuServe brand service, (c) Content areas owned, maintained or controlled by
CompuServe affiliates or any similar "sub-service," (d) any programming or
Content area offered by or through the U.S. version of the CompuServe brand
service over which CompuServe does not exercise complete or substantially
complete operational control (e.g., third-party Content areas), (e) any yellow
pages, white pages, classifieds or other search, directory or review services or
Content and (f) any co-branded or private label branded version of the U.S.
version of the CompuServe brand service, and (g) any version of the U.S. version
of the CompuServe brand service which offers Content, distribution, services
and/or functionality materially different from the Content, distribution,
services and/or functionality associated with the standard, narrow-band U.S.
version of the CompuServe brand service, including, without limitation, any
version of such service distributed through any platform or device other than a
desktop personal computer; provided, however, that Onvia's rights herein, if
any, in relation to any property, feature, product or service which AOL or its
affiliates may acquire subsequent to the Effective Date and which then become
part of CompuServe, will be subject to preexisting agreements to which AOL or
any of its affiliates is bound as a result of such acquisition.
Confidential Information. Any information relating to or disclosed in the
------------------------
course of the Agreement, which is or should be reasonably understood to be
confidential or proprietary to the disclosing Party, including, but not limited
to, the material terms of this Agreement, information about AOL Members, AOL
Users, AOL Purchasers and Onvia users, technical processes and formulas, source
codes, product designs, sales, cost and other unpublished financial information,
product and business plans, projections, and marketing data. "Confidential
Information" will not include information (a) already lawfully known to or
independently developed by the receiving Party, (b) disclosed in published
materials consistent with this Agreement, (c) generally known to the public, or
(d) lawfully obtained from any third party.
Content. Text, images, video, audio (including, without limitation, music used
-------
in synchronism or timed relation with visual displays) and other data, products,
services, advertisements, promotions, URLs, links, pointers and software,
including any modifications, upgrades, updates, enhancements and related
documentation.
Digital City. The standard, narrow-band U.S. version of Digital City's local
-------------
content offerings marketed under the Digital City(R) brand name, specifically
excluding (a) the AOL Service, AOL.com, Netcenter, or any other AOL Interactive
Site, (b) any international versions of such local content offerings, (c) the
CompuServe(R) brand service and any other CompuServe products or services (d)
"Driveway," "ICQ(TM)," "AOL NetFind(TM)," "AOL Instant Messenger(TM)," "Digital
City," "NetMail(TM)," "Electra", "Thrive", "Real Fans", "Love@AOL",
"Entertainment Asylum," "AOL Hometown," "My News" or any similar independent
product, service or property which may be offered by, through or with the
standard narrow band version of Digital City's local content offerings, (e) any
programming or Content area offered by or through such local content offerings
over which AOL does not exercise complete operational control (including,
without limitation, Content areas controlled by other parties and member-created
Content areas), (f) any yellow pages, white pages, classifieds or other search,
directory or review services or Content offered by or through such local content
offerings, (g) any other version of a Digital City local content offering which
is materially different from the narrow-band U.S. version of Digital City's
local content offerings marketed under the Digital City(R) brand name, by virtue
of its branding, distribution, functionality, Content or services, including,
without limitation, any co-branded version of the offerings or any version
distributed through any broadband distribution platform or through any platform
or device other than a desktop personal computer, and (i) Digital City- branded
offerings in any local area where such offerings are not owned or operationally
controlled by America Online, Inc. or DCI (e.g., Chicago, Orlando, South
Florida,
32
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
and Hampton Roads); provided, however, that Onvia's rights herein, if any, in
relation to any property, feature, product or service which AOL or its
affiliates may acquire subsequent to the Effective Date and which then become
part of Digital City, will be subject to preexisting agreements to which AOL or
any of its affiliates is bound as a result of such acquisition.
Impression. User exposure to the applicable Promotion, as such exposure may be
----------
reasonably determined and measured by AOL in accordance with its standard
methodologies and protocols.
Interactive Service. An entity, other than Onvia (subject to the product and
-------------------
services restrictions in this Agreement), which is or offers one or more of the
following: (i) online or Internet connectivity services (e.g., an Internet
service provider ("ISP")); (ii) any Portal; and (iii) communications software
capable of serving as the principal means through which a user creates, sends
and receives electronic mail or real time online messages; provided, however,
that an entity otherwise satisfying one or more of these criteria shall not be
considered an Interactive Service if and to the extent that major divisions or
subsidiaries of such entity offer products and services which, if offered by an
unrelated entity, would not make such entity an Interactive Service (e.g., an
entity which offers an ISP service or which serves as a Portal would not be
considered an Interactive Service if and only to the extent that separate major
divisions or subsidiaries thereof offer products and services unrelated to the
ISP service (e.g., such that the Co-Branded Site could promote laser printers
offered by a separate division or subsidiary of such ISP or Portal, but not the
ISP or Portal services themselves)), provided, however, that any entity which is
primarily an Interactive Service (e.g., a reasonably significant portion of its
products or services satisfy one or more of the three criteria above) shall not
be excluded from the definition of Interactive Service regardless of the product
or service in question (e.g., even laser printers from Yahoo! would fall outside
the scope of this exception, and may not be promoted in the Co-Branded Site).
Interactive Site. Any interactive site or area, including, by way of example and
----------------
without limitation, (i) a site on the World Wide Web portion of the Internet or
(ii) a channel or area delivered through a "push" product such as the Pointcast
Network or interactive environment such as Microsoft's Active Desktop.
Keyword Search Terms. (a) The Keyword(TM) online search terms made available
---------------------
on the AOL Service, combining AOL's Keyword(TM) online search modifier with a
term or phrase specifically related to Onvia (and determined in accordance with
the terms of this Agreement), and (b) the Go Word online search terms made
available on CompuServe, combining CompuServe's Go Word online search modifier
with a term or phrase specifically related to Onvia and determined in accordance
with the terms of this Agreement).
Licensed Content. All Content offered through the Co-Branded Site, plus the AOL
----------------
Buying Directory, the RFQ/RFI Promotional Areas (including the the RFQ Services
and the RFI Services), and the Programming, pursuant to this Agreement or
otherwise provided by Onvia or its agents in connection herewith (e.g., offline
or online promotional Content, Promotions, AOL "slideshows" , etc.), including
in each case, any modifications, upgrades, updates, enhancements, and related
documentation.
Netcenter. Netscape Communications Corporation's primary Internet-based
---------
Interactive Site marketed under the "Netscape Netcenter(TM)" brand, specifically
excluding (a) the AOL Service, (b) AOL.com, (c) any international versions of
such site, (d) "ICQ," "AOL Netfind(TM)," "AOL Instant Messenger(TM),"
"NetMail(TM)," "AOL Hometown," "My News," "Digital City(TM)," or any similar
independent product or service offered by or through such site or any other AOL
Interactive Site, (e) any programming or Content area offered by or through such
site over which AOL does not exercise complete operational control (including,
without limitation, Content areas controlled by other parties and member-created
Content areas), (f) any programming or Content area offered by or through the
U.S. version of the America Online(R) brand service which was operated,
maintained or controlled by the former AOL Studios division (e.g., Electra), (g)
any yellow pages, white pages, classifieds or other search, directory or review
services or Content offered by or through such site or any other AOL Interactive
Site, and (h) any other version of an AOL or Netscape Communications Corporation
Interactive Site which is materially different from Netscape Communications
Corporation's primary Internet-based Interactive Site marketed under the
"Netscape
33
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
Netcenter-TM" brand, by virtue of its branding, distribution, functionality,
Content or services, including, without limitation, any co-branded versions and
any version distributed through any broadband distribution platform or through
any platform or device other than a desktop personal computer (e.g. Custom
NetCenters built specifically for third parties); provided, however, that
Onvia's rights herein, if any, in relation to any property, feature, product or
service which AOL or its affiliates may acquire subsequent to the Effective Date
and which then become part of Netcenter, will be subject to preexisting
agreements to which AOL or any of its affiliates is bound as a result of such
acquisition.
Portal. Any interactive site or service, other than Onvia (subject to the
------
product and services restrictions in this Agreement), providing links to or
aggregation of (e.g., a portal such as Yahoo! or MSN.com), or search or
navigation of (e.g., a search engine such as Excite or Lycos), interactive sites
or services, in each case consolidating a broad selection of aggregated third
party interactive content or marketing a broad selection of multiple third party
product lines and/or services across numerous industries (e.g., by way of
example only, a commerce site which sells or promotes books, flowers, candy,
music and t-shirts from various third parties). However, the term "Portal"
shall not include a commerce or content provider, no matter how large, if only
in one vertical industry and market (e.g., by way of example only: (1) a news
content provider, such as Reuters, whose focus is just to provide news reports,
even though such reports may be numerous and far reaching across a variety of
topics (e.g., financial news, technology news, and international news; or (2) an
online bookstore, whose focus is just to sell books, even though such books may
be numerous and far reaching across a variety of topics (e.g., children's books,
reference books, and mystery books)).
Product. Any product, good or service which Onvia (or others acting on its
-------
behalf or as distributors) offers, sells, provides, distributes or licenses to
AOL Users directly or indirectly through (i) the Co-Branded Site (including
through any Interactive Site linked thereto), (ii) any Onvia Interactive Site
(including through any Interactive Site linked thereto), (iii) any other
electronic means directed at AOL Users (e.g., e-mail offers), or (iv) an
"offline" means (e.g., toll-free number) for receiving orders related to
specific offers within the Co-Branded Site or any Onvia Interactive Site
requiring purchasers to reference a specific promotional identifier or tracking
code, including, without limitation, products sold through surcharged downloads
(to the extent expressly permitted hereunder).
Promotions. The promotions described on Exhibit A, any comparable promotions
-----------
delivered by AOL in accordance with Section 1.1, and any additional promotions
of the Co-Branded Site provided by AOL (including, without limitation,
additional Keyword Search Terms and other navigational tools).
Remnant Inventory. Advertising inventory which is unsold at the end of the
------------------
business day prior to the day on which that inventory will run. If Onvia has
purchased Remnant Inventory, Onvia's creative will be slotted into such unsold
inventory by AOL from time to time in accordance with internal AOL policies.
AOL does not guarantee that Remnant Inventory Impressions will be delivered on
any particular day(s) or that such Impressions will be delivered evenly over the
Term. Further, AOL does not guarantee placement on any particular screen or
group of screens (except that Channel level Remnant Inventory will be run only
within the specified Channel).
RFI Services. As defined in Section 2.2.
------------
RFQ/RFI Promotional Areas. As defined in Section 6.5.
-------------------------
RFQ Services. As defined in Section 2.2.
------------
Run of Service Inventory or ROS. A collection of inventory made up of all areas
------------------------ ---
of the relevant AOL property or service. If Advertiser has purchased Run of
Service Inventory, AOL will place Advertiser's creative in different locations
throughout the relevant property or service in accordance with AOL internal
policies. Advertiser may not control placement within a Run of Service
Inventory purchase and AOL does not guarantee placement on any particular screen
or group of screens (except that run of channel Inventory will be run only in
the specified channel).
34
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
Standard Site. Onvia's generally available web site, currently located at URL
-------------
http://www.onvia.com, or any successor thereto or replacement thereof.
--------------------
Transaction Margins. Aggregate amounts paid by AOL Purchasers in connection
-------------------
with the sale, licensing, distribution or provision of any products, including,
in each case, handling, shipping, service charges (except to the extent that
such handling, shipping and service charges reflect Onvia's actual costs), and
excluding, in each case, (a) amounts collected for sales or use taxes or duties,
(b) credits and chargebacks for returned or canceled goods or services, and (c)
cost of goods sold and similar costs or expenses directly related thereto.
35
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
EXHIBIT C
Onvia Cross-Promotion
---------------------
A. Within the Standard Site, Onvia shall include the following (the "AOL
Promos"): a continuous promotional banner, button or text link (with such
banner or button to be at least 90 x 30 pixels or 70 x 70 pixels in size, or
other size if mutually agreed) appearing prominently within any areas
promoting internet access or connectivity products or services , to promote
AOL Internet access or connectivity products or services as AOL may
designate (for example, the America Online (R) brand service, the CompuServe
(R) brand service, etc.) and, at AOL's option, download or order the then-
current version of client software for such products or services. AOL will
provide the creative content to be used in the AOL Promos (including
designation of links from such content to other content pages), subject to
Onvia's reasonable approval, not to be unreasonably withheld or delayed.
Onvia shall use commercially reasonable efforts to post (or update, as the
case may be) the creative content supplied by AOL within the spaces for the
AOL Promos within five days of its receipt of such content from AOL. Without
limiting any other reporting obligations of the Parties contained herein,
Onvia shall use commercially reasonable efforts to provide AOL with monthly
written reports specifying the number of impressions to the pages containing
the AOL Promos during the prior month, and in any event shall provide such
reports no less frequently than quarterly. In the event that AOL elects to
serve the AOL Promos in accordance with this paragraph to the Standard Site
from an ad server controlled by AOL or its agent, Onvia shall take all
reasonable operational steps necessary to facilitate such ad serving
arrangement including, without limitation, inserting HTML code designated by
AOL on the pages of the Standard Site on which the AOL Promos will appear.
In addition, within the Standard Site, Onvia shall provide prominent
promotion for the keywords granted to Onvia hereunder. Onvia may participate
in the standard, generally applicable `Affiliate Program', if any exists
from the corresponding AOL brand. Onvia will need to comply with any general
program guidelines relating to any such Affiliate Program as set forth by
the applicable AOL brand. Information about AOL's generally applicable
Affiliate Program is currently located at:
http://affiliate.aol.com/affiliate/welcome.html. When promoting AOL as
-----------------------------------------------
contemplated herein, Onvia will promote AOL as the preferred access provider
through which a user can access the Standard Site, and Onvia shall not
implement or authorize any other promotions on behalf of any third parties
which are inconsistent herewith.
B. In Onvia's television advertisements, radio advertisements of at least 30
seconds in length, print advertisements and outdoor advertisements (e.g.,
buses and billboards), and in any publications, programs, features or other
forms of media over which Onvia exercises at least partial editorial
control, except (1) when promoting a Prohibited Category (as set forth in
Exhibit D) and (2) to the extent otherwise permitted by this Agreement where
Onvia is promoting an Interactive Service other than AOL (which promotions
will not account for more than five percent (5%) of the total advertising
covered by this section), Onvia will include specific references or mentions
(verbally where possible) of the availability of the Co-Branded Site through
the AOL Network, which are at least as prominent as any references that
Onvia makes to the Standard Site (by way of site name, related company name,
URL or otherwise), and will promote AOL as a preferred access provider
content aggregator. Without limiting the generality of the foregoing,
Onvia's listing of the "URL" for the Standard Site (other than any
customized or co-branded sites tailored for use with a third party
Interactive Service) will be accompanied by an equally prominent listing of
the "keyword" term on AOL for the Co-Branded Site. This will be done with
the following treatment: "America Online Keyword: Onvia" or another AOL
approved method.
C. In any area on the Standard Site promoting internet connectivity services
(including without limitation connectivity via ISP or DSL), Onvia will
integrate all of AOL's connectivity services (e.g., AOL TV, AOL Service, and
CompuServe) to an extent no less favorable than that for other providers of
such services on the same site. To the extent that Onvia offers or promotes
any products or services for sale which are similar to any Component
Products (as defined herein), Onvia will use commercially reasonable efforts
to provide equal or greater promotions for such AOL-designated products. In
addition to the above, Onvia will include links to other AOL products or
services from the Standard Site. Moreover, to the extent that Onvia
integrates functionality similar to a Component Product in its Standard
Site, Onvia shall discuss in good faith the possibility of using AOL's
version of such
36
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
Component Product. For purposes of this Agreement, the term "Component
Products" shall mean any of the following products or services: Internet
connectivity (e.g., dial-up or DSL), instant messaging, chat, voice-
activated chat, voice message, IP telephony, e-mail, search engines,
navigation services, homesteading/personal web publishing, calendar
functions, or "You've Got Pictures" or other similar photographic services.
D. The Parties will discuss in good faith the possibility of expanding the
cross-promotional relationships and programs contemplated in this Exhibit C,
on terms to be mutually agreed.
37
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
EXHIBIT D
Description of Products and Other Content
-----------------------------------------
Permitted Categories:
--------------------
Onvia Products and Content on the Co-Branded Site will include only items
falling within the following categories of small business targeted products,
services, or content available via the Internet, to the extent that such
products, services or content actually are targeted to small business users (the
"Permitted Categories"):
. RFQ Services
. RFI Services
. The Co-Branded Site Buying Directory
. News and advice
Restricted Categories:
---------------------
If and to the extent that any of the above Permitted Categories include any
products, services or content pertaining to the following categories (as may be
updated by AOL no more than once per quarter during the Term (but any such
additions shall not retroactively affect Onvia's then existing promotions and
services)) (the "Restricted Categories"), then Onvia shall ensure that such
products, services or content pertaining to the Restricted Categories shall not
be permitted to appear within the Promo Content or the first page of the Co-
Branded Site directly linked to from the AOL Network (i.e., not within one
"click" of the AOL Network):
. [* * *]
. [* * *]
. [* * *]
. [* * *]
. [* * *]
. [* * *]
. [* * *]
. [* * *]
. [* * *]
. [* * *]
. [* * *]
. [* * *]
. [* * *]
. [* * *]
. [* * *]
. [* * *]
. [* * *]
. [* * *]
. [* * *]
. [* * *]
. [* * *]
. [* * *]
. [* * *]
. [* * *]
. [* * *]
38
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
Prohibited Categories:
---------------------
Notwithstanding anything to the contrary herein, products, services and content
pertaining to the following categories (as may be updated by AOL no more than
once per quarter during the Term (but any such additions shall not retroactively
affect Onvia's then existing promotions and services)) shall be excluded from
the Promo Content and all pages of the Co-Branded Site:
. [* * *]
. [* * *]
. [* * *]
. [* * *]
. [* * *]
. [* * *]
. [* * *]
. [* * *]
. [* * *]; provided that, for a period of 120 days from and after the Effective
Date, the Parties shall discuss in good faith their respective plans for barter
activities.
Additional Functionality:
------------------------
Onvia may add individual new products, services and content at any time without
AOL's prior written consent to the extent that such products, services and
content generally fall within the categories listed in and are consistent with
the terms and scope of this Exhibit D. If Onvia wants to add products, services
or content which do not fall within the categories listed in this Exhibit D, the
Parties will, on a case-by-case basis, work together in good faith to discuss
the terms and conditions, if any, upon which such products, services or content
may be permitted, if and to the extent mutually agreed.
39
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
EXHIBIT E
Operations
----------
1. General. Onvia will use commercially reasonable best efforts to ensure that
-------
the Co-Branded Site (including the Products and other Content contained therein)
is in the top three (3) in the business-to-business industry, as determined by
each of the following methods: (a) based on a cross-section of third-party
reviewers who are recognized authorities in such industry and (b) with respect
to all material quality averages or standards in such industry, including each
of the following: (i) pricing of Products, (ii) scope and selection of Products
(except to the extent that Onvia is limited to offering certain Products
pursuant to the terms of this Agreement), (iii) quality of Products, (iv)
customer service and fulfillment associated with the marketing and sale of
Products and (v) ease of use. In addition, the Co-Branded Site will, with
respect to each of the measures listed above, be competitive in all respects
with that which is offered by any Onvia competitors.
2. Co-Branded Site Infrastructure. Onvia will be responsible for all
------------------------------
communications, hosting and connectivity costs and expenses associated with the
Co-Branded Site. Onvia will provide all hardware, software, telecommunications
lines and other infrastructure necessary to meet traffic demands on the Co-
Branded Site from the AOL Network. Onvia will design and implement the network
between the AOL Service and Co-Branded Site such that (i) no single component
failure will have a materially adverse impact on AOL Members seeking to reach
the Co-Branded Site from the AOL Network and (ii) no single line under material
control by Onvia will run at more than 70% average utilization for a 5-minute
peak in a daily period. In this regard, Onvia will provide AOL, upon request,
with a detailed network diagram regarding the architecture and network
infrastructure supporting the Co-Branded Site. In the event that Onvia elects
to create a custom version of the Co-Branded Site in order to comply with the
terms of this Agreement, Onvia will bear responsibility for all aspects of the
implementation, management and cost of such customized site.
3. Optimization; Speed. Onvia will use commercially reasonable efforts to
-------------------
ensure that: (a) the functionality and features within the Co-Branded Site are
optimized for the client software then in use by AOL Members; and (b) the Co-
Branded Site is designed and populated in a manner that minimizes delays when
AOL Users attempt to access such site. At a minimum, Onvia will ensure that the
Co-Branded Site's data transfers initiate within fewer than fifteen (15) seconds
on average on a typical day. Prior to commercial launch of any material
promotions described herein, Onvia will permit AOL to conduct performance and
load testing of the Co-Branded Site (in person or through remote
communications), with such commercial launch not to commence until such time as
AOL is reasonably satisfied with the results of any such testing.
4. User Interface. Onvia will maintain a graphical user interface within the
--------------
Co-Branded Site that is reasonably competitive in all material respects with
interfaces of other similar sites based on similar form technology. AOL
reserves the right to review and reasonably approve the user interface and site
design prior to launch of the Promotions and to conduct focus group testing to
assess compliance with respect to such consultation and with respect to Onvia's
compliance with the preceding sentence.
5. Technical Problems. Onvia agrees to use commercially reasonable efforts to
------------------
address material technical problems (over which Onvia exercises control)
affecting use by AOL Users of the Co-Branded Site (a "Onvia Technical Problem")
promptly following notice thereof. In the event that Onvia is unable to
promptly resolve an Onvia Technical Problem following notice thereof from AOL
(including, without limitation, infrastructure deficiencies producing user
delays), AOL will have the right to regulate the promotions it provides to Onvia
hereunder until such time as Onvia corrects the Onvia Technical Problem at
issue.
6. Monitoring. Onvia will ensure that the performance and availability of the
----------
Co-Branded Site is monitored on a continuous basis. Onvia will provide AOL with
contact information (including e-mail, phone, pager and fax information, as
applicable, for both during and after business hours) for Onvia's principal
business and technical representatives, for use in cases when issues or problems
arise with respect to the Co-Branded Site.
7. Telecommunications. Where applicable Onvia will utilize encryption
------------------
methodology to secure data communications between the Parties' data centers.
The network between the Parties will be configured such that no single component
failure will significantly impact AOL Users. The network will be sized such
that no single line over which the Onvia has material control runs at more than
70% average utilization for a 5-minute peak in a daily period.
8. Security. Onvia will utilize Internet standard encryption technologies
--------
(e.g., Secure Socket Layer - SSL) to provide a secure environment for conducting
transactions and/or transferring private member information (e.g. credit card
numbers, banking/financial information, and member address information) to and
from the Co-Branded Site. Onvia will facilitate periodic reviews of the Co-
Branded Site by AOL in order to evaluate the security risks of such site. Onvia
will promptly remedy any security risks or breaches of security as may be
identified by AOL's Operations Security team.
9. Technical Performance.
---------------------
i. Onvia will design the Co-Branded Site to support the AOL-client
embedded versions of the Microsoft Internet Explorer 3.XX and 4.XX browsers
(Windows and Macintosh) (and above) and the Netscape Browser 4.XX (and
above) and make commercially reasonable efforts to support all other AOL
browsers listed at: "http://webmaster.info.aol.com."
ii. To the extent Onvia creates customized pages on the Co-Branded Site
for AOL Members, Onvia will develop and employ a methodology to detect AOL
Members (e.g. examine the HTTP User-Agent field in order to identify the
"AOL Member-Agents" listed at: "http://webmaster. info.aol.com)."
40
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
iii. Onvia will periodically review the technical information made
available by AOL at http://webmaster.info.aol.com.
iv. Onvia will design its site to support HTTP 1.0 or later protocol as
defined in RFC 1945 and to adhere to AOL's parameters for refreshing or
preventing the caching of information in AOL's proxy system as outlined in
the document provided at the following URL: http://webmaster.info.aol.com.
Onvia is responsible for the manipulation of these parameters in web-based
objects so as to allow them to be cached or not cached as outlined in RFC
1945.
v. Prior to releasing material, new functionality or features through
the Co-Branded Site ("New Functionality"), Onvia will use commercially
reasonable efforts to (i) test the New Functionality to confirm its
compatibility with AOL Service browser/client software and (ii) provide AOL
with written notice of the New Functionality so that AOL can perform tests
of the New Functionality to confirm its compatibility with the AOL Service
client software; provided that if Onvia's notice specifies a commercially
reasonable amount of time in which to perform such tests and AOL fails to do
so within the specified time, then Onvia shall have the right to release the
New Functionality provided that it is in compliance with the other
requirements hereof. Should any new material, new functionality or features
through the Co-Branded Site be released without notification to AOL, AOL
will not be responsible for any adverse member experience until such time
that compatibility tests can be performed and the new material,
functionality or features is qualified for the AOL Service.
10. AOL Internet Services Onvia Support. AOL will provide Onvia with access to
-----------------------------------
the standard online resources, standards and guidelines documentation, technical
phone support, monitoring and after-hours assistance that AOL makes generally
available to similarly situated web-based partners. AOL support will not, in
any case, be involved with content creation on behalf of Onvia or support for
any technologies, databases, software or other applications which are not
supported by AOL or are related to any Onvia area other than the Co-Branded
Site. Support to be provided by AOL is contingent on Onvia providing to AOL
demo account information (where applicable), a detailed description of the Co-
Branded Site's software, hardware and network architecture and access to the Co-
Branded Site for purposes of such performance and load testing as AOL elects to
conduct.
41
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
EXHIBIT F
Standard Online Commerce Terms & Conditions
-------------------------------------------
1. AOL Network Distribution. Onvia will not authorize or permit any third
------------------------
party to distribute or promote the Products or any Onvia Interactive Site other
than the Co-Branded Site through the AOL Network absent AOL's prior written
approval. The Promotions and any other promotions or advertisements purchased
from or provided by AOL will link only to the Co-Branded Site, will be used by
Onvia solely for its own benefit and will not be resold, traded, exchanged,
bartered, brokered or otherwise offered to any third party.
2. Provision of Other Content. In the event that AOL notifies Onvia that (i) as
--------------------------
reasonably determined by AOL, any Content within the Co-Branded Site violates
AOL's then-standard Terms of Service (as set forth on the America Online brand
service at Keyword term "TOS"), for the AOL Service or any other AOL property
through which the Co-Branded Site is promoted, the terms of this Agreement or
any other standard, written AOL policy or (ii) AOL reasonably objects to the
inclusion of any Content within the Co-Branded Site (provided, however, that any
specific items of Content (e.g., Products) which are expressly identified in
this Agreement as provided by Onvia (e.g., as listed in Exhibits A-1 and D) may
not be objected to by AOL pursuant to this section if such Content otherwise
complies with the terms of this Agreement), then Onvia will take commercially
reasonable steps to block access by AOL Users to such Content using Onvia's
then-available technology. In the event that Onvia cannot, through its
commercially reasonable efforts, block access by AOL Users to the Content in
question, then Onvia will provide AOL prompt written notice of such fact. AOL
may then, at its option, restrict access from the AOL Network to the Content in
question using technology available to AOL. Onvia will use commercially
reasonable best efforts to cooperate with AOL's reasonable requests to the
extent AOL elects to implement any such access restrictions.
3. Contests. Onvia will take all steps necessary to ensure that any contest,
--------
sweepstakes or similar promotion conducted or promoted through the Co-Branded
Site (a "Contest") complies with all applicable federal, state and local laws
and regulations.
4. Navigation. AOL will be entitled to establish navigational icons, links and
----------
pointers connecting the Co-Branded Site (or portions thereof) with other content
areas on or outside of the AOL Network (e.g., as set forth in Section 2.1 of the
main body of this Agreement). Additionally, in cases where an AOL User performs
a search for Onvia through any search or navigational tool or mechanism that is
accessible or available through the AOL Network (e.g., Promotions, Keyword
Search Terms, or any other promotions or navigational tools), AOL shall have the
right to direct such AOL User to the Co-Branded Site, or the Standard Site
determined by AOL in its reasonable discretion.
5. Disclaimers. Upon AOL's request, Onvia agrees to include within the Co-
-----------
Branded Site a product disclaimer (the specific form and substance to be
mutually agreed upon by the Parties) indicating that transactions are solely
between Onvia and AOL Users purchasing Products from Onvia.
6. AOL Look and Feel. Onvia acknowledges and agrees that AOL will own all
-----------------
right, title and interest in and design, organization, presentation, layout,
user interface, navigation and stylistic convention (including the digital
implementations thereof) which are generally associated with online areas
contained within the AOL Network, subject to Onvia's ownership or other rights
in any of Onvia trademarks or copyrighted material within the Co-Branded Site or
the Licensed Content.
7. Management of the Co-Branded Site. Onvia will manage, review, delete, edit,
create, update and otherwise manage all Content available on or through the Co-
Branded Site, in a timely and professional manner and in accordance with the
terms of this Agreement. Onvia will use commercially reasonable best efforts to
ensure that the Co-Branded Site is current, accurate and well-organized at all
times. Onvia warrants that the Products and other Licensed Content : (i) will
not infringe on or violate any copyright, trademark, U.S. patent or any other
third party right, including without limitation, any music performance or other
music-related rights; (ii) will not violate AOL's then-applicable Terms of
Service for the AOL Service and any other AOL property through which the Co-
Branded Site will be promoted or any other standard, written AOL policy which
has been delivered to Onvia; and (iii) will not violate any applicable law or
regulation, including those relating to contests, sweepstakes or similar
promotions. Additionally, Onvia represents and warrants that it owns or has a
valid license to all rights to any Licensed Content used in AOL "slideshow" or
other formats embodying elements such as graphics, animation and sound, free and
clear of all encumbrances and without violating the rights of any other person
or entity. Onvia also warrants that a reasonable basis exists for all Product
performance or comparison claims appearing through the Co-Branded Site. Except
as otherwise set forth in this Agreement, Onvia shall not in any manner,
including, without limitation in any Promotion, the Licensed Content or the
Promotional Materials state or imply that AOL recommends or endorses Onvia or
Onvia's Products (e.g., no statements that Onvia is an "official" or "preferred"
provider of products or services for AOL). AOL will have no obligations with
respect to the Products available on or through the Co-Branded Site, including,
but not limited to, any duty to review or monitor any such Products.
8. Duty to Inform. Onvia will promptly inform AOL of any information
--------------
related to the Co-Branded Site which could reasonably lead to a material claim,
demand, or liability of or against AOL and/or its affiliates by any third party.
9. Customer Service. It is the sole responsibility of Onvia to provide customer
----------------
service to persons or entities purchasing Products through the Co-Branded Site
or Standard Site ("Customers"). Onvia will bear full responsibility for all
customer service, including without limitation, order processing, billing,
fulfillment, shipment, collection and other customer service associated with any
Products offered, sold or
42
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
licensed through the Co-Branded Site, and AOL will have no obligations
whatsoever with respect thereto. Onvia will receive all emails from Customers
via a computer available to Onvia's customer service staff and generally respond
to such emails within one business day of receipt. Onvia will receive all orders
electronically and generally process all orders within one business day of
receipt, provided Products ordered are not advance order items. Onvia will
ensure that all orders of Products are received, processed, fulfilled and
delivered on a timely and professional basis. Onvia will offer AOL Users who
purchase Products through such Co-Branded Site a satisfaction guarantee. Onvia
will bear all responsibility for compliance with federal, state and local laws
in the event that Products are out of stock or are no longer available at the
time an order is received. Onvia will also comply with the requirements of any
federal, state or local consumer protection or disclosure law. Payment for
Products will be collected by Onvia directly from customers. Onvia's order
fulfillment operation will be subject to AOL's reasonable review.
10. Production Work. In the event that Onvia requests AOL's additional
---------------
production assistance (other than as expressly set forth herein) in connection
with (i) ongoing programming and maintenance related to the Co-Branded Site,
(ii) a redesign of or addition to the Co-Branded Site (e.g., a change to an
existing screen format or construction of a new custom form), (iii) production
to modify work performed by a third party provider or (iv) any other type of
production work, Onvia will work with AOL to develop a detailed production plan
for the requested production assistance (the "Production Plan"). Following
receipt of the final Production Plan, AOL will notify Onvia of (i) AOL's
availability to perform the requested production work, (ii) the proposed fee or
fee structure for the requested production and maintenance work and (iii) the
estimated development schedule for such work. To the extent the Parties reach
agreement regarding implementation of the agreed-upon Production Plan, such
agreement will be reflected in a separate work order signed by the Parties. To
the extent Onvia elects to retain a third party provider to perform any such
production work, work produced by such third party provider must generally
conform to AOL's standards & practices (as provided on the America Online brand
service at Keyword term "styleguide"). The specific production resources which
AOL allocates to any production work to be performed on behalf of Onvia will be
as determined by AOL in its sole discretion. With respect to any routine
production, maintenance or related services which AOL reasonably determines are
necessary for AOL to perform in order to support the proper functioning and
integration of the Co-Branded Site ("Routine Services"), Onvia will pay the
then-standard fees charged by AOL for such Routine Services.
11. Overhead Accounts. To the extent AOL has granted Onvia any overhead
------------------
accounts on the AOL Service, Onvia will be responsible for the actions taken
under or through its overhead accounts, which actions are subject to AOL's
applicable Terms of Service and for any surcharges, including, without
limitation, all premium charges, transaction charges, and any applicable
communication surcharges incurred by any overhead Account issued to Onvia, but
Onvia will not be liable for charges incurred by any overhead account relating
to AOL's standard monthly usage fees and standard hourly charges, which charges
AOL will bear. Upon the termination of this Agreement, all overhead accounts,
related screen names and any associated usage credits or similar rights, will
automatically terminate. AOL will have no liability for loss of any data or
content related to the proper termination of any overhead account.
12. Navigation Tools. Any Keyword Search Terms to be directed to the Co-
----------------
Branded Site shall be (i) subject to availability for use by Onvia and (ii)
limited to the combination of the Keyword(TM) search modifier combined with a
registered trademark of Onvia (e.g. "AOL keyword: XYZ Company Name"). AOL
reserves the right to revoke at any time Onvia's use of any Keyword Search Terms
which do not incorporate registered trademarks of Onvia. Onvia acknowledges that
its utilization of a Keyword Search Term will not create in it, nor will it
represent it has, any right, title or interest in or to such Keyword Search
Term, other than the right, title and interest Onvia holds in Onvia's registered
trademark independent of the Keyword Search Term. Without limiting the
generality of the foregoing, Onvia will not: (a) attempt to register or
otherwise obtain trademark or copyright protection in the Keyword Search Term;
or (b) use the Keyword Search Term, except for the purposes expressly required
or permitted under this Agreement. To the extent AOL allows AOL Users to
"bookmark" the URL or other locator for the Co-Branded Site, such bookmarks will
be subject to AOL's control at all times. Upon the termination of this
Agreement, Onvia's rights to any Keyword Search Terms and bookmarking will
terminate.
13. Merchant Certification Program. Onvia will participate in any generally
------------------------------
applicable "Certified Merchant" program operated by AOL or its authorized agents
or contractors. Such program may require merchant participants on an ongoing
basis to meet certain reasonable, generally applicable standards relating to
provision of electronic commerce through the AOL Network (including, as a
minimum, use of 40-bit SSL encryption and if requested by AOL, 128-bit
encryption) and may also require the payment of certain reasonable certification
fees to the applicable entity operating the program. Each Certified Merchant in
good standing will be entitled to place on its affiliated Interactive Site an
AOL designed and approved button promoting the merchant's status as an AOL
Certified Merchant.
14. Reward Programs. On the Co-Branded Site, Onvia shall not offer, provide,
---------------
implement or otherwise make available any promotional programs or plans that are
intended to provide customers with rewards or benefits in exchange for, or on
account of, their past or continued loyalty to, or patronage or purchase of, the
products or services of Onvia or any third party (e.g., a promotional program
similar to a "frequent flier" program), unless such promotional program or plan
is provided exclusively through AOL's "AOL Rewards" program, accessible on the
AOL Service at Keyword: "AOL Rewards." Notwithstanding the foregoing, on the Co-
Branded Site Onvia may have its own loyalty program for discounts on products
and services. In such event, Onvia shall use commercially reasonable efforts to
also use AOL's rewards program.
43
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
15. Search Terms. To the extent this Agreement sets forth any mechanism by
------------
which the Co-Branded Site will be promoted in connection with specified search
terms within any AOL product or service, Onvia hereby represents and warrants
that Onvia has all consents, authorizations, approvals, licenses, permits or
other rights necessary for Onvia to use such specified search terms.
Notwithstanding the foregoing, AOL shall have the right to suspend the use of
any search term if AOL has a reasonable belief that continued use may subject
AOL to liability or other adverse consequences.
44
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
EXHIBIT G
Standard Legal Terms & Conditions
---------------------------------
11. Promotional Materials. In addition to the requirements of Section 5.7 of
---------------------
the main body of this Agreement (relating to Press Releases), each Party will
submit to the other Party, for its prior written approval, which will not be
unreasonably withheld or delayed, any marketing, advertising, or other
promotional materials (excluding Press Releases) related to the Co-Branded Site
and/or referencing the other Party and/or its trade names, trademarks, and
service marks (the "Promotional Materials"); provided, however, that either
Party's use of screen shots of the Co-Branded Site for promotional purposes will
not require the approval of the other Party so long as America Online(R) is
clearly identified as the source of such screen shots; and provided further,
however, that, following the initial public announcement of the business
relationship between the Parties in accordance with the approval and other
requirements contained herein, either Party's subsequent factual reference to
the existence of a business relationship between the Parties in Promotional
Materials, will not require the approval of the other Party. Each Party will
solicit and reasonably consider the views of the other Party in designing and
implementing such Promotional Materials. Once approved, the Promotional
Materials may be used by a Party and its affiliates for the purpose of promoting
the Co-Branded Site and the content contained therein and reused for such
purpose until such approval is withdrawn with reasonable prior notice. In the
event such approval is withdrawn, existing inventories of Promotional Materials
may be depleted.
12. License. Onvia hereby grants AOL a non-exclusive worldwide license to
-------
market, license, distribute, reproduce, display, perform, transmit and promote
(but not to sublicense or reverse engineer any software) the Licensed Content
(or any portion thereof, except the source code of any software) through such
areas or features of the AOL Network as AOL deems appropriate. Onvia
acknowledges and agrees that the foregoing license permits AOL to distribute
portions of the Licensed Content in synchronism or timed relation with visual
displays prepared by Onvia or AOL (e.g., as part of an AOL "slideshow"). In
addition, AOL Users will have the right to access and use the Co-Branded Site.
Onvia reserves any rights not expressly granted to AOL hereunder.
13. Trademark License. In designing and implementing the Materials and subject
-----------------
to the other provisions contained herein, Onvia will be entitled to use the
following trade names, trademarks, and service marks of AOL: the "America
Online(R)" brand service, "AOL(TM)" service/software and AOL's triangle logo;
and AOL and its affiliates will be entitled to use the trade names, trademarks,
and service marks of Onvia for which Onvia holds all rights necessary for use in
connection with this Agreement (collectively, together with the AOL marks listed
above, the "Marks"); provided that each Party: (i) does not create a unitary
composite mark involving a Mark of the other Party without the prior written
approval of such other Party; and (ii) displays symbols and notices clearly and
sufficiently indicating the trademark status and ownership of the other Party's
Marks in accordance with applicable trademark law and practice.
14. Ownership of Trademarks. Each Party acknowledges the ownership right of
-----------------------
the other Party in the Marks of the other Party and agrees that all use of the
other Party's Marks will inure to the benefit, and be on behalf, of the other
Party. Each Party acknowledges that its utilization of the other Party's Marks
will not create in it, nor will it represent it has, any right, title, or
interest in or to such Marks other than the licenses expressly granted herein.
Each Party agrees not to do anything contesting or impairing the trademark
rights of the other Party.
15. Quality Standards. Each Party agrees that the nature and quality of its
-----------------
products and services supplied in connection with the other Party's Marks will
conform to reasonable quality standards set by the other Party. Each Party
agrees to supply the other Party, upon reasonable request, with a reasonable
number of samples of any Materials publicly disseminated by such Party which
utilize the other Party's Marks. Each Party will comply with all applicable
laws, regulations, and customs and obtain any required government approvals
pertaining to use of the other Party's marks.
16. Infringement Proceedings. Each Party agrees to promptly notify the other
------------------------
Party of any unauthorized use of the other Party's Marks of which it has actual
knowledge. Each Party will have the sole right and discretion to bring
proceedings alleging infringement of its Marks or unfair competition related
thereto; provided, however, that each Party agrees to provide the other Party
with its reasonable cooperation and assistance with respect to any such
infringement proceedings.
17. Representations and Warranties. Each Party represents and warrants to the
------------------------------
other Party that: (i) such Party has the full corporate right, power and
authority to enter into this Agreement and to perform the acts required of it
hereunder; (ii) the execution of this Agreement by such Party, and the
performance by such Party of its obligations and duties hereunder, do not and
will not violate any agreement to which such Party is a party or by which it is
otherwise bound; (iii) when executed and delivered by such Party, this Agreement
will constitute the legal, valid and binding obligation of such Party,
enforceable against such Party in accordance with its terms; and (iv) such Party
acknowledges that the other Party makes no representations, warranties or
agreements related to the subject matter hereof that are not expressly provided
for in this Agreement. Onvia hereby represents and warrants that it possesses
all authorizations, approvals, consents, licenses, permits, certificates or
other rights and permissions necessary to sell the Products.
45
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
18. Confidentiality. Each Party acknowledges that Confidential Information may
---------------
be disclosed to the other Party during the course of this Agreement. Each Party
agrees that it will take reasonable steps, at least substantially equivalent to
the steps it takes to protect its own proprietary information, during the term
of this Agreement, and for a period of three years following expiration or
termination of this Agreement, to prevent the duplication or disclosure of
Confidential Information of the other Party, other than by or to its employees
or agents who must have access to such Confidential Information to perform such
Party's obligations hereunder, who will each agree to comply with this section.
Notwithstanding the foregoing, either Party may issue a press release or other
disclosure containing Confidential Information without the consent of the other
Party, to the extent such disclosure is required by law, rule, regulation or
government or court order. In such event, the disclosing Party will provide at
least five (5) business days prior written notice of such proposed disclosure to
the other Party. Further, in the event such disclosure is required of either
Party under the laws, rules or regulations of the Securities and Exchange
Commission or any other applicable governing body, such Party will (i) redact
mutually agreed-upon portions of this Agreement to the fullest extent permitted
under applicable laws, rules and regulations and (ii) submit a request to such
governing body that such portions and other provisions of this Agreement receive
confidential treatment under the laws, rules and regulations of the Securities
and Exchange Commission or otherwise be held in the strictest confidence to the
fullest extent permitted under the laws, rules or regulations of any other
applicable governing body.
19. Limitation of Liability; Disclaimer; Indemnification.
----------------------------------------------------
9.1 Liability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE
---------------
OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY
DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, THE SALE OF PRODUCTS, THE USE OR
INABILITY TO USE THE AOL NETWORK, THE AOL SERVICE, AOL.COM OR THE CO-BRANDED
SITE, OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT
LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS
(COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY WILL REMAIN
LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A
THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO SECTION 9.3. EXCEPT
AS PROVIDED IN SECTION 9.3 OF THIS EXHIBIT G OR SECTION 5.7 OF THE MAIN BODY OF
THIS AGREEMENT, (I) LIABILITY ARISING UNDER THIS AGREEMENT WILL BE LIMITED TO
DIRECT, OBJECTIVELY MEASURABLE DAMAGES, AND (II) THE MAXIMUM LIABILITY OF ONE
PARTY TO THE OTHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS
AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT OF FIXED GUARANTEED PAYMENT
OBLIGATIONS OWED BY ONVIA HEREUNDER IN THE YEAR IN WHICH THE EVENT GIVING RISE
TO LIABILITY OCCURS; PROVIDED THAT EACH PARTY WILL REMAIN LIABLE FOR THE
AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY PURSUANT TO
THE AGREEMENT.
9.2 No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS
-----------------------------
AGREEMENT, NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS
ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AOL
NETWORK, THE AOL SERVICE, AOL.COM OR THE CO-BRANDED SITE, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED
WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, AOL SPECIFICALLY DISCLAIMS ANY
WARRANTY REGARDING THE PROFITABILITY OF THE CO-BRANDED SITE.
9.3 Indemnity. Either Party will defend, indemnify, save and hold harmless
--------------
the other Party and the officers, directors, agents, affiliates, distributors,
franchisees and employees of the other Party from any and all third party
claims, demands, liabilities, costs or expenses, including reasonable attorneys'
fees ("Liabilities"), resulting from the indemnifying Party's material breach of
any duty, representation, or warranty of this Agreement.
9.4 Claims. If a Party entitled to indemnification hereunder (the "Indemnified
-----------
Party") becomes aware of any matter it believes is indemnifiable hereunder
involving any claim, action, suit, investigation, arbitration or other
proceeding against the Indemnified Party by any third party (each an "Action"),
the Indemnified Party will give the other Party (the "Indemnifying Party")
prompt written notice of such Action. Such notice will (i) provide the basis on
which indemnification is being asserted and (ii) be accompanied by copies of all
relevant pleadings, demands, and other papers related to the Action and in the
possession of the Indemnified Party. The Indemnifying Party will have a period
of ten (10) days after delivery of such notice to respond. If the Indemnifying
Party elects to defend the Action or does not respond within the requisite ten
(10) day period, the Indemnifying Party will be obligated to defend the Action,
at its own expense, and by counsel reasonably satisfactory to the Indemnified
Party. The Indemnified Party will cooperate, at the expense of the Indemnifying
Party, with the Indemnifying Party and its counsel in the defense and the
Indemnified Party will have the right to participate fully, at its own expense,
in the
46
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
defense of such Action. If the Indemnifying Party responds within the required
ten (10) day period and elects not to defend such Action, the Indemnified Party
will be free, without prejudice to any of the Indemnified Party's rights
hereunder, to compromise or defend (and control the defense of) such Action. In
such case, the Indemnifying Party will cooperate, at its own expense, with the
Indemnified Party and its counsel in the defense against such Action and the
Indemnifying Party will have the right to participate fully, at its own expense,
in the defense of such Action. Any compromise or settlement of an Action will
require the prior written consent of both Parties hereunder, such consent not to
be unreasonably withheld or delayed.
10. Acknowledgment. AOL and Onvia each acknowledges that the provisions of
-------------------
this Agreement were negotiated to reflect an informed, voluntary allocation
between them of all risks (both known and unknown) associated with the
transactions contemplated hereunder. The limitations and disclaimers related to
warranties and liability contained in this Agreement are intended to limit the
circumstances and extent of liability. The provisions of this Section 10 will be
enforceable independent of and severable from any other enforceable or
unenforceable provision of this Agreement.
20. Solicitation of AOL Users. During the term of the Agreement and for a
-----------------------------
eighteen month period thereafter, Onvia will not use the AOL Network (including,
without limitation, the e-mail network contained therein) to solicit AOL Users
on behalf of another Interactive Service. More generally, Onvia will not send
unsolicited, commercial e-mail (i.e., "spam") or other online communications
through or into AOL's products or services, absent a Prior Business
Relationship. For purposes of this Agreement, a "Prior Business Relationship"
will mean that the AOL User to whom commercial e-mail or other online
communication is being sent has voluntarily either (i) engaged in a transaction
with Onvia or (ii) provided information to Onvia through a contest,
registration, or other communication, which included clear notice to the AOL
User that the information provided could result in commercial e-mail or other
online communication being sent to that AOL User by Onvia or its agents. Any
commercial e-mail or other online communications to AOL Users which are
otherwise permitted hereunder, will (a) include a prominent and easy means to
"opt-out" of receiving any future commercial communications from Onvia, and (b)
shall also be subject to AOL's then-standard restrictions on distribution of
bulk e-mail (e.g., related to the time and manner in which such e-mail can be
distributed through or into the AOL product or service in question), subject to
paragraph 12, clause (b)(i), of this Exhibit G. Any e-mail or other online
communications permitted under this paragraph may inform AOL Users of areas
within the Co-Branded Site which may be of interest to them, in order to provide
for a better user experience.
21. AOL User Communications. To the extent that Onvia is permitted to
-----------------------
communicate with AOL Users under this Exhibit G, in any such communications to
AOL Users on or off the Co-Branded Site (including, without limitation, e-mail
solicitations), Onvia will not encourage AOL Users who have visited the Co-
Branded Site during the Term (but excluding such AOL Users who have transacted
with Onvia prior to the Term) to take any action inconsistent with the scope and
purpose of this Agreement. Further, Onvia shall not encourage AOL Users to (i)
bookmark Interactive Sites, or (ii) change the default home page on the AOL
browser. Further still Onvia shall not encourage AOL Users who have visited the
Co-Branded Site during the Term (but excluding such AOL Users who have
transacted with Onvia prior to the Term), to (a) use any Interactive Site other
than the Co-Branded Site for the purchase of Products, or (b) use Content other
than the Licensed Content. Additionally, with respect to such AOL User
communications, in the event that Onvia encourages an AOL User to purchase
products through such communications, Onvia shall ensure that, during the Term,
(x) the AOL Network is promoted as the primary means through which the AOL User
can access the Co-Branded Site and (y) any link to the Co-Branded Site will link
to a page which indicates to the AOL User that such user is in a site which is
affiliated with the AOL Network.
22. Collection and Use of User Information. Onvia shall ensure that its
--------------------------------------
collection, use and disclosure of information obtained from AOL Users under this
Agreement ("User Information") complies with (i) all applicable laws and
regulations and (ii) AOL's standard privacy policies, available on the AOL
Service at the keyword term "Privacy" (or, in the case of the Co-Branded Site,
Onvia's standard privacy policies so long as such policies are prominently
published on the site and provide adequate notice, disclosure and choice to
users regarding Onvia's collection, use and disclosure of user information).
Onvia will not disclose User Information collected hereunder to any third party
in a manner that identifies AOL Users as end users of an AOL product or service
or use Member Information collected under this Agreement to market another
Interactive Service. Notwithstanding anything to the contrary herein, (a) if
end users are required to register to access certain features within the Co-
Branded Site (including the Co-Branded Site Buying Directory), or the AOL Buying
Directory, the Parties will use commercially reasonable best efforts to ensure
that such registration processes will be seamlessly integrated with Netscape's
"Universal Registration" or AOL's "SNAP" system (or such other registration
system developed by AOL) and be consistent with the respective brand's then-
current privacy policy; (b) AOL will continue to own all end user data
previously owned by it which is passed on to Onvia via universal registration or
any other means in conjunction with the use of the Co-Branded Site and the AOL
Buying Directory, and (c) that in cases where a user registers or transacts for
Onvia's products and services on the Co-Branded Site, the User Information
collected therefrom will be jointly
47
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
owned by AOL and Onvia, subject to any express limitations herein. AOL and Onvia
may promote products and services to the user base shared by them, provided that
such promotions may not be for any Interactive Service and may not be
inconsistent with the scope and terms of this Agreement.
23. Excuse. Neither Party will be liable for, or be considered in breach of or
------
default under this Agreement on account of, any delay or failure to perform as
required by this Agreement as a result of any causes or conditions which are
beyond such Party's reasonable control and which such Party is unable to
overcome by the exercise of reasonable diligence.
24. Independent Contractors. The Parties to this Agreement are independent
-----------------------
contractors. Neither Party is an agent, representative or employee of the other
Party. Neither Party will have any right, power or authority to enter into any
agreement for or on behalf of, or incur any obligation or liability of, or to
otherwise bind, the other Party. This Agreement will not be interpreted or
construed to create an association, agency, joint venture or partnership between
the Parties or to impose any liability attributable to such a relationship upon
either Party.
25. Notice. Any notice, approval, request, authorization, direction or other
------
communication under this Agreement will be given in writing and will be deemed
to have been delivered and given for all purposes (i) on the delivery date if
delivered by electronic mail on the AOL Network (to screenname
"AOLNotice@AOL.com" in the case of AOL) or by confirmed facsimile; (ii) on the
delivery date if delivered personally to the Party to whom the same is directed;
(iii) one business day after deposit with a commercial overnight carrier, with
written verification of receipt; or (iv) five business days after the mailing
date, whether or not actually received, if sent by U.S. mail, return receipt
requested, postage and charges prepaid, or any other means of rapid mail
delivery for which a receipt is available. In the case of AOL, such notice will
be provided to both the Senior Vice President for Business Affairs (fax no. 703-
265-1206) and the Deputy General Counsel (fax no. 703-265-1105), each at the
address of AOL set forth in the first paragraph of this Agreement. In the case
of Onvia, except as otherwise specified herein, the notice address will be the
address for Onvia set forth in the first paragraph of this Agreement, with the
other relevant notice information, including the recipient for notice and, as
applicable, such recipient's fax number or AOL e-mail address, to be as
reasonably identified by AOL.
26. Launch Dates. In the event that any terms contained herein relate to or
------------
depend on the commercial launch date of the Co-Branded Site contemplated by this
Agreement (the "Launch Date"), then it is the intention of the Parties to record
such Launch Date in a written instrument signed by both Parties promptly
following such Launch Date; provided that, in the absence of such a written
instrument, the Launch Date will be as reasonably determined by AOL based on the
information available to AOL.
27. No Waiver. The failure of either Party to insist upon or enforce strict
---------
performance by the other Party of any provision of this Agreement or to exercise
any right under this Agreement will not be construed as a waiver or
relinquishment to any extent of such Party's right to assert or rely upon any
such provision or right in that or any other instance; rather, the same will be
and remain in full force and effect.
28. Return of Information. Upon the expiration or termination of this
---------------------
Agreement, each Party will, upon the written request of the other Party, return
or destroy (at the option of the Party receiving the request) all Confidential
Information, documents, manuals and other materials specified the other Party.
29. Survival. Section 5.3 of the body of the Agreement, Sections 8 through 30
--------
of this Exhibit, and any payment obligations accrued prior to termination or
expiration will survive the completion, expiration, termination or cancellation
of this Agreement.
30. Entire Agreement. This Agreement sets forth the entire agreement and
----------------
supersedes any and all prior agreements of the Parties with respect to the
transactions set forth herein. Neither Party will be bound by, and each Party
specifically objects to, any term, condition or other provision which is
different from or in addition to the provisions of this Agreement (whether or
not it would materially alter this Agreement) and which is proffered by the
other Party in any correspondence or other document, unless the Party to be
bound thereby specifically agrees to such provision in writing.
31. Amendment. No change, amendment or modification of any provision of this
---------
Agreement will be valid unless set forth in a written instrument signed by the
Party subject to enforcement of such amendment, and in the case of AOL, by an
executive of at least the same standing to the executive who signed the
Agreement.
32. Further Assurances. Each Party will take such action (including, but not
------------------
limited to, the execution, acknowledgment and delivery of documents) as may
reasonably be requested by any other Party for the implementation or continuing
performance of this Agreement.
33. Assignment. With the exception of (a) an assignment or succession of
----------
interest relating solely to a change in jurisdiction of incorporation, or (b) of
a Change of Control (other than a Change of Control of Onvia to an Interactive
Service, which shall be governed by Section 5.6 of the main body of this
Agreement): Onvia will not assign this Agreement or any right, interest or
benefit under this Agreement, without the prior written consent of AOL. In
either instance, AOL's consent shall not be unreasonably withheld or delayed.
Subject to the foregoing, this Agreement will be fully binding upon, inure to
the benefit of and be enforceable by the Parties hereto and their respective
successors and assigns.
48
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
34. Construction; Severability. In the event that any provision of this
--------------------------
Agreement conflicts with the law under which this Agreement is to be construed
or if any such provision is held invalid by a court with jurisdiction over the
Parties to this Agreement, (i) such provision will be deemed to be restated to
reflect as nearly as possible the original intentions of the Parties in
accordance with applicable law, and (ii) the remaining terms, provisions,
covenants and restrictions of this Agreement will remain in full force and
effect.
35. Remedies. Except where otherwise specified, the rights and remedies
--------
granted to a Party under this Agreement are cumulative and in addition to, and
not in lieu of, any other rights or remedies which the Party may possess at law
or in equity; provided that, in connection with any dispute hereunder, Onvia
will be not entitled to offset any amounts that it claims to be due and payable
from AOL against amounts otherwise payable by Onvia to AOL.
36. Applicable Law. Except as otherwise expressly provided herein, this
--------------
Agreement will be interpreted, construed and enforced in all respects in
accordance with the laws of the Commonwealth of Virginia except for its
conflicts of laws principles.
37. Export Controls. Both Parties will adhere to all applicable laws,
---------------
regulations and rules relating to the export of technical data and will not
export or re-export any technical data, any products received from the other
Party or the direct product of such technical data to any proscribed country
listed in such applicable laws, regulations and rules unless properly
authorized.
38. Headings. The captions and headings used in this Agreement are inserted
--------
for convenience only and will not affect the meaning or interpretation of this
Agreement.
39. Counterparts. This Agreement may be executed in counterparts, each of
------------
which will be deemed an original and all of which together will constitute one
and the same document.
49
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
EXHIBIT H
Co-Branding
-----------
Except as otherwise expressly stated in this Agreement or otherwise mutually
agreed by the Parties in writing, each distinct version of the Co-Branded Site
shall be designed as a "cul de sac" site containing no links outside of the Co-
Branded Site other than to (a) the applicable AOL business brand, (b) other AOL
or third party Content determined by AOL, or (c) advertisements permitted under
this Agreement. Except as otherwise expressly stated in this Agreement or as
otherwise mutually agreed, Onvia shall eliminate the use of "pop-up" windows,
screens and similar types of functionality in connection with the display of
advertising, promotions or sponsorships on the Co-Branded Site. Except as
expressly set forth in this Agreement, AOL shall have the right to change or
modify its generally applicable design guideline templates and co-branding
requirements during the Term, to conform to general changes made to the AOL
Network or portions thereof. Such customization may, at AOL's discretion,
further include, without limitation:
(i) the inclusion of an AOL (or its applicable
affiliated business brand, e.g., CompuServe) co-branded
toolbar, running the full width of the page, at the top and
bottom of each page of the Co-Branded Site, which, among
other things, will provide navigation back to the AOL
Network, and which shall contain an AOL search box (e.g.,
Netfind) and two (2) promotional spaces to be programmed by
AOL (the parameters, specifications and format of which such
toolbars are further displayed on the mock-up below);
(ii) various additional co-branding elements to be
specified, as reasonably required for consistency throughout
the AOL Network and throughout AOL's network of merchant
partners in light of changes to or modifications of the AOL
Network (or portions thereof) or AOL's design guideline
templates or co-branding requirements during the Term; and
(iii) the creation of links in connection with
communication services on the Co-Branded Site to the
corresponding or equivalent communication services or areas
of the Co-Branded Site of the appropriate AOL Property
(e.g., chat from the Co-Branded Site of the AOL Service will
link to the chat area on the AOL Service).
50
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
EXHIBIT I
Third party integration schedule and standards
General:
As set forth in more detail in this Agreement (e.g., in Section 6.4 and Exhibit
A-1), AOL may require Onvia to integrate up to [* * *] additional of AOL's
selected merchant partners and their products and services into the AOL Buying
Directory per month (provided that the Parties initially shall cooperate to
integrate one such merchant partner as a test case).
Schedule:
Onvia shall use commercially reasonable efforts to integrate any third party as
reasonably requested by AOL (and to the extent consistent with the terms hereof,
e.g., with respect to such third party's data exchange standards) within 30 days
of the date of such request, and in any event shall integrate any complying
third party within 60 days of such request. Onvia shall initially so integrate
(upon AOL's request) [* * *] (e.g., procurement engine, catalog, or similar
functionality), as well as any other complying entities as set forth in more
detail under "Data Exchange" below.
Taxonomy:
Onvia and AOL will mutually agree upon an initial product category taxonomy,
using taxonomy in existence on the Standard Site as of the Effective Date as an
initial starting point, within 30 days of the Effective Date, and shall
cooperate to update such taxonomy on a regular and consistent basis, as mutually
agreed. Third parties will map from such third parties' proprietary taxonomy to
Onvia taxonomy prior to being integrated into the AOL Buying Directory. Onvia
will extend taxonomy to incorporate additional items and product types not in
current taxonomy within a reasonable time frame.
Data Exchange:
Third parties which AOL wishes to have integrated into the AOL Buying Directory
shall (it being acknowledged and agreed that this is outside the control of AOL)
meet XML (eXtensible Markup Language), or any other mutually agreed standard
data exchange standards published by Onvia (and the Parties shall so mutually
agree on at least one standard prior to the completion of the AOL Buying
Directory); provided that, in the event they do not meet such standards, Onvia
shall use commercially reasonable efforts to integrate them based on other
reasonable and applicable standards. Third parties also shall (it being
acknowledged and agreed that this is outside the control of AOL) maintain
appropriate XML (or other applicable) data quality standards as established
through generally applicable standard policy by Onvia; provided that, in the
event they do not meet such standards, Onvia shall use commercially reasonable
efforts to work with such party based on other reasonable and applicable
standards. Third Parties will retain QA responsibility for all data transferred
for use in the AOL Buying Directory. Any additional items and product types
will require expanded data to be provided to Onvia by third parties in formats
to be defined based on requirements. Any data transmissions by third parties to
Onvia should be delivered via FTP and, if mutually agreed, shall meet currently
available compression and encryption standards; provided that, in each case, in
the event they do not meet such standards (FTP, or compression and encryption),
Onvia shall use commercially reasonable efforts to work with such party based on
other reasonable and applicable standards.
Merchant Data Ownership:
Onvia shall be entitled to use any information provided by AOL's merchant
partners in connection herewith only to the extent required for Onvia's
compliance with the terms hereof, and only during the Term. Notwithstanding
anything to the contrary herein, AOL (and not Onvia) shall own all data and
other information provided by AOL's merchant partners (including without
limitation, any product databases, product information, taxonomy, exchange
information and technology), whether or not used by Onvia during the Term,
subject to any applicable confidentiality provisions herein, and, at the end of
the Term, Onvia shall return any and all such AOL merchant information to AOL
and shall no longer retain any rights to use such AOL merchant information.
51
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
Schedule 2.9
Competitive Entities*
---------------------
The Parties expressly acknowledge and agree that this schedule only applies to
Section 2.9 and only with respect to Advertising sold by AOL to be served into
the Co-Branded Site, and does not in any way limit AOL's ability to sell
Advertising to any entity, including any competitor of Onvia, anywhere within
the AOL Network (or to any other third party areas, e.g., dr koop).
Notwithstanding anything to the contrary herein, AOL may, on the AOL Network
(including without limitation the B2B Area, the AOL Buying Directory and the AOL
Aggregated RFQ Area), sell Advertisements to, or otherwise promote, any of the
entities listed on this Schedule 2.9 or added hereto from time to time in
accordance with the terms hereof.
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
[* * *]
52
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
*Each of the listed entities shall be considered competitive to Onvia only to
the extent that it maintains an online, small-business targeted presence and
continues to predominantly focus on business-to-business products and services.
Onvia may add a Qualifying Entity (or Qualifying Entities) (as defined below) to
this list once per quarter (to a maximum of [* * *] additional Qualifying
Entities per year during the Term) with thirty (30) days' advance written notice
to AOL, provided, however, that the restrictions applicable to each Qualifying
Entity shall be subject to contractual commitments of AOL in existence as of the
date on which such Qualifying Entity is named by Onvia. For purposes hereof, a
"Qualifying Entity" shall mean any other company to the extent they primarily
offer products, services and content falling within the Permitted Categories
listed in Exhibit D.
53
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
Schedule 3.4
New Customer Targets
(listed by each quarter of Term)
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C>
q1 q2 q3 q4 q5 q6 q7 q8
-- -- -- -- -- -- -- --
[* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *] [* * *]
----------- ----------- ---------- ----------- ----------- ----------- ----------- -----------
</TABLE>
54
CONFIDENTIAL
[* * *] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
<PAGE>
Execution Copy
Schedule 5.6
Onvia Investors
Shareholder
-----------
Glenn Ballman
Rob Ayer
VLG Investments 99
Mohr, Davidow Ventures, L.P.
Mohr, Davidow Ventures V, L.P., as nominee for MDV Entrepreneurs'Network Fund
II(A), L.P. and MDV Entrepreneurs' Network Fund II(B), L.P.
Stanford University
Internet Capital Group, Inc.
GE Capital Equity Investments Inc.
RIT Ventures I LLC
ATGF II (Amerindo)
Vertex Capital II (Amerindo)
Van Wagoner (Funds + Partners)
Aman Ventures
Credit Suisse First Boston
Robertson Stephens (Bayview I)
Robertson Stephens (Bayview II)
Hambrech & Quist - California
Hambrech & Quist - California
H&Q Employee Venture Fund
Access Technology Partners Fund
Access Technology Partners Brokers Fund
William Blair & Company
E-Offering
Comdisco, Inc.
Madrona Investment Group
Oki Enterprises
Grosvernor Select LP
Jumpstart Group
55
CONFIDENTIAL