Interactive Services Agreement - America Online Inc. and SportsLine USA Inc.
CONFlDENTlAL
INTERACTIVE SERVICES AGREEMENT
This agreement (the "AGREEMENT"), effective as of July 1, 1997 (the
"Effective Date"), is made and entered into by and between America Online, Inc.
("AOL"), a Delaware corporation, with its principal offices at 22000 AOL Way,
Dulles, Virginia 20166, and SportsLine USA, Inc. ("INTERACTIVE CONTENT PROVIDER"
or "ICP"), a Delaware corporation, with its principal offices at 6340 N.W. 5th
Way, Fort Lauderdale, Florida 33309 (each a "PARTY" and collectively the
"PARTIES").
INTRODUCTION
The Parties desire to work together to provide AOL Members (as defined
below) with access to the Licensed Content (as defined below) through the AOL
Network (as defined below), subject to the terms and conditions set forth in
this Agreement. Defined terms used but not defined in the body of this Agreement
or in Exhibit C shall be as defined on Exhibit B attached hereto.
TERMS
1. DISTRIBUTION: PROGRAMMING
1.1 ANCHOR TENANCY. During the term, ICP shall receive anchor tenant
distribution within the AOL Brand Service, as follows: AOL shall:
(a) continuously and prominently place a mutually agreed upon ICP
logo, ***** as determined by ICP but subject to the guidelines set
forth in Exhibit "A-1" (provided that AOL shall have the right to
amend Exhibit A-1 in good faith to incorporate additional
reasonable guidelines) on the main Sports Channel screen (or any
specific successor thereof) on the AOL Brand Service (the "MAIN
SPORTS SCREEN"), with prominent placement to be mutually
agreed-upon, provided that ICP shall have a first right to choose
placement from the available options (such right to extend to any
subsequent substantial interface redesigns to the Main Sports
Screen made by AOL during the Term) and ***** during the Term;
(b) continuously include the Licensed Content (as defined in section
1.2 below) adjacent to attribution to ICP as the source of such
content *****; provided, however, that the inclusion of Licensed
Content with respect to any of the foregoing screens not launched
as of the Effective Date shall be applicable as of the date of
launch of such screen(s); and provided, further, that the Licensed
Content included in the screens specified in this Section l.l(b)
shall generally be Content drawn (as determined by AOL based on
the quality and relevance of such Content) from an area of the ICP
Interactive Site designated by ICP which shall contain the
Licensed Content, or, if not from such designated area, then such
other Licensed Content as determined by AOL in consultation with
ICP.
(c) program certain other Licensed Content on other appropriate
screens in the Sports Channel, as determined by AOL in its
discretion;
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(d) provide ICP with the keywords "CBS SportsLine," "SportsLine" and
"Vegas Insider" which shall Link to the Template Forms (as defined
below in section 5.1);
(e) list ICP in **** on the AOL Brand Service (***** to be accessible
through keywords "Odds," "Sports Book," "Handicapping" and
"Lines"); and
(f) list ICP in AOL's "Directory of Services" and "Find" features.
Each area on an ICP Interactive Site linked from the AOL Network shall be
accessed by AOL Members through the Hybrid Browser (as defined below in
Section 5.1).
1.1.1 COMMUNITY PROGRAMMING; FANTASY GAMES. In addition to ICP's anchor
tenant distribution as provided in section 1.1 above, AOL shall
also include: (a) ***** provided that AOL shall provide carriage
over the Term of **** except to the extent not feasible as a result
of AOL's space and technical limitations, and shall contain Links
to the ICP Interactive Site via the Hybrid Browser); and (b) *****
area of the Sports Channel, provided that such carriage shall
commence on or about the launch of the ***** and shall, except as
otherwise mutually agreed upon, consist of prominent branded Links
to the appropriate pages of the ICP Interactive Site.
1.1.2 "ODDS" INFORMATION. AOL and ICP shall discuss in good faith the
provision by ICP of more detailed odds and analysis information to
enhance the content present on the "Sports Odds" screen including
ICP "pick packs".
1.1.3 CHANEES TO AOL SERUCE. AOL reserves the right to redesign or modify
the organization, structure, "look and feel," navigation and other
elements of the AOL Service. In the event such modifications
materially affect the placements for ICP described above, AOL will
work with ICP in good faith to provide ICP with a comparable
package of placements which are reasonably satisfactory to ICP
("MAKE-GOOD PLACEMENTS"). To the extent AOL is unable or refuses to
provide ICP with acceptable Make-Good Placements within a
reasonable period of time, ICP's sole remedy shall be ***** as
determined in ICP's sole discretion; provided; however, that, if
ICP elects *****.
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1.2 LICENSED CONTENT. ICP Content shall consist solely of the Content
described on Exhibit "A" hereto (the "LICENSED CONTENT") which ICP shall
have the right to change from time to time, subject to the provisions of
this Agreement (including but not limited to this section 1.2). ICP shall
not authorize or permit any third party to distribute any other Content
of ICP through the AOL Network absent AOL's prior written approval.
Further, ICP agrees that it is and will remain primarily a provider of
sports-oriented content, and agrees that the Licensed Content shall not
include information that is not directly related to sports nor will the
features, functionality, or technology of the Licensed Content impose a
material adverse effect upon the technical operations of the AOL Network.
1.3 LICENSE. ICP hereby grants AOL a worldwide non-exclusive,
non-transferable, license to (a) use, market, store, distribute, display,
communicate, perform, transmit, and promote the Licensed Content (or any
portion thereof) through the AOL Network within such areas or features of
the AOL Network as expressly provided herein, and (b) integrate the
Licensed Content within the AOL Network by including links to ICP
Interactive Sites. Subject to such right and license, ICP retains all
right, title to and interest in the Licensed Content. Subject to the
first sentence of this section 1.3, the foregoing license is solely for
the purpose of permitting AOL to promote the Licensed Content on ICP's
Interactive Site in accordance with AOL's obligations hereunder, and
shall not be construed to grant a license to use, market, store,
distribute, display, communicate, perform, transmit, or promote the
Licensed Content generally or for any other purpose (including but not
limited to AOL branding of any Licensed Content). All uses of the
Licensed Content shall only be as expressly provided herein.
1.4 MANAGEMENT. ICP shall design, create, edit, manage, update, and maintain
the Licensed Content ("MANAGEMENT RESPONSIBILITIES"). AOL shall have no
Management Responsibilities of any kind with respect to any ICP
Interactive Site or any other Linked Interactive Site. ICP shall be
responsible for any hosting or communication costs associated with any
Linked Interactive Sites, except that AOL shall be responsible for the
costs associated with (i) any mutually agreed-upon direct connections
between the AOL Network and a Linked Interactive Site or (ii) any
mutually agreed upon mirrored version of a Linked Interactive Site. AOL
Members shall not be required to go through a registration process (or
any similar process) in order to access and use the non subscription or
non-premium areas of an ICP Interactive Site. In addition, ICP shall make
all of its existing premium services, including fantasy games,
commissioners, and utilities, available to AOL Members for purchase at a
10% discount off ICP's ordinary retail price.
1.5 CARRIAGE FEE. ICP shall pay AOL a carriage fee of ***** as follows:
1.5.1 BASE CARRIAGE FEE. ICP shall pay AOL ***** over the term, payable
in equal monthly installments on the 15th day of each month
beginning with July 15, 1997; and
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1.5.2 IN-KIND PROGRAMMING AND PROMOTION. ICP shall provide AOL with the
equivalent of ***** made up of the in-kind commitments specified in
the agreement between AOL, ICP and CBS, Inc., attached hereto as
Exhibit E (the "ICP IN-KIND COMMITMENTS"). Without limiting any
other rights or remedies available to AOL, AOL's anchor tenant and
impressions commitments specified in Sections 1.1 and 1.6 herein
are and will be contingent upon provision of the ICP In-Kind
Commitments in accordance with Exhibit E.
1.6 IMPRESSIONS GUARANTEE. AOL shall provide ICP with at least *****
Impressions from ICP's Presence on the AOL Network hereunder (the
"Impressions Guarantee") as follows: (a) a minimum of ***** Impressions
shall be generated from ***** as specified in Section l.l(a); (b) a
minimum of ***** Impressions shall be generated from ***** as specified
in Sections l.l(b)-(c); and (c) ***** Impressions as specified in
section 2.6 below. For the purposes of this Agreement, the term
"Presence" means any ICP trademark or logo, Licensed Content, headline,
picture, story, teaser, icon, link or any other Content or service which
originates from, describes or promotes ICP or ICP's Licensed Content,
provided that only screens that contain a Link to ICP's Interactive Site
or a Welcome Mat (as defined below) via the Hybrid Browser will count
against the Impressions Guarantee. The Term shall be extended without
any additional Carriage Fees or other additional consideration of any
kind whatsoever payable by ICP until the Impressions Guarantee is met,
provided that in any event the Impressions Guarantee shall be met within
***** after the Effe,ctive Date.
2. PROMOTION
2.1 COOPERATION. Each Party shall cooperate with and reasonably assist the
other Party in supplying material for marketing and promotional
activities.
2.2 INTERACTIVE SITE. ICP shall include the following promotions within each
ICP Interactive Site during the Term: (i) a continuous promotional
button for AOL appearing "above the fold" on the first screen of such
site; (ii) a Link to a location of AOL's choosing where users can obtain
promotional information about AOL products and services and/or download
or order AOL's the-current version of the AOL client software (for which
ICP shall earn bounties for New Members as specified on Exhibit F);
and (iii) include mutually agreed upon promotional banners describing
AOL as a preferred access provider in such a way as to encourage
download of AOL clients software (for which ICP shall earn bounties for
New Members as specified on Exhibit F) utilizing unsold inventory on
the "Top News" and "Scoreboard" sections within ICP's Microsoft "Active
Desktop" and Netscape "Netcaster" channels.
2.3 KEYWORD. When ICP makes promotional reference to an ICP Interactive Site
in any off line (e.g., not Internet or online) media, *****, which
includes a listing of the
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applicable "URL(s)" for such site (each a "WEB REFERENCE"), ICP shall
include a favorable mention, in an agreed-upon form, of the applicable
AOL "keyword" of comparable prominence to the Web Reference.
2.4 DIRECT MARKETING. In addition to the promotion described in section 2.2
above, the Parties agree to execute the New Member acquisition program
described on Exhibit F and for which ICP shall earn bounties as
described in Exhibit F, and such other New Member acquisition programs
as the parties may mutually agree upon.
2.5 ONLINE PROMOTIONS. During the Term AOL shall (a) include *****
(except that any obligation to ***** shall be subject to any contractual
commitments of AOL), and (b) provide ICP with at least ***** In
addition, AOL shall link from the Template Forms and the Hybrid Browser
(both as defined below in Section 5.1) to the merchandise area on the
main ICP Interactive Site and other mutually agreed upon areas of the
Interactive Site. AOL shall use commercially reasonable efforts to
include ICP in *****
3. REPORTING. On no less than a monthly basis, each Party shall supply or make
available to the other Party reports containing the following information:
3.1 USAGE AND OTHER DATA. AOL shall make available to ICP a monthly report
with respect to ICP's presence on the AOL Network hereunder specifying
for the prior month (a) the number of Impressions generated within the
AOL Network, and (b) ***** In addition to the number of Impressions, to
the extent AOL makes commercially available to any third parties *****,
AOL shall provide to ICP a monthly report of the ***** with respect to
ICP's presence on the AOL Network.
For each Linked ICP Interactive Site, ICP will supply AOL with monthly
reports which reflect total impressions by AOL Members to the Linked ICP
Interactive Site during the prior month, total impressions by all users
to the Linked ICP Interactive Site during the prior month and any
transactions involving AOL Members at the ICP Interactive Site during
the period in question, in a detailed format reasonably requested by
AOL.
3.2 PROMOTIONAL COMMITMENTS. ICP shall provide to AOL a monthly report, in
the form attached hereto as Exhibit G, documenting its compliance with
any promotional commitments it has undertaken as required hereunder.
3.3 PAYMENT SCHEDULE. Except as otherwise specified herein, each Party
agrees to pay the other Party all amounts received and owed to such
other Party as described herein on a monthly basis within thirty (30)
days of the end of the month in which such amounts were collected by
such Party. Each such payment shall be accompanied by a statement
showing in reasonable detail how such payment was computed.
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ASTERISKS DENOTE SUCH OMISSION
3.4 SURVIVAL. This section 3 shall survive any expiration or earlier
termination of this Agreement.
4. ADVERTISING AND MERCHANDISING
4.1 ADVERTISING. AOL owns all right, title and interest in and to the
advertising and promotional spaces within the AOL Network. The specific
advertising inventory within any such AOL forms or pages shall be as
reasonably determined by AOL.
4.2 AOL PROGRAMMING ADVERTISEMENTS. With respect to any exclusive to AOL or
differentiated (e.g., from programming available outside of the AOL
Network) online programming, any Template Forms (as specified in Section
5.1) or the Hybrid Browser (as specified in Section 5.1) (collectively,
the "AOL PROGRAMMING"), AOL shall grant ICP the ***** promotions,
advertisements, links, pointers or similar services or rights in or
through the area for any AOL Programming ("AOL PROGRAMMING
ADVERTISEMENTS") subject to (i) AOL's approval (it being understood that
such policies shall not apply to ICP Interactive Sites or any portion
thereof other than Welcome Mats), and (ii) the ***** shall be shared by
the Parties as follows: (a) ICP shall retain ***** of all ***** (the
"*****"); and (b) ICP shall pay AOL ***** . Additionally, when AOL makes
its ad server technology generally available to third parties, AOL shall
make such technology available for use by ICP with respect to the AOL
Programming Advertisements on AOL's then-standards terms and conditions.
4.3 WELCOME MAT ADVERTISEMENTS. With respect to any Welcome Mat(s) (as
defined in Section 5.5.3.1), ICP shall retain the ***** promotions,
advertisements, links, pointers or similar services or rights in or
through the Welcome Mats ("WELCOME MAT ADVERTISEMENTS"), subject to (a)
AOL's approval for each Welcome Mat Advertisement (it being understood
that such policies shall not apply to ICP Interactive Sites or any
portion thereof other than Welcome Mats) and (b) the *****. ICP shall
pay AOL ***** with respect to Welcome Mat Advertisements.
4.4 ADVERTISING POLICIES. Any AOL Programming Advertisements or Welcome Mat
Advertisements (collectively, "AOL ADVERTISEMENTS") sold by ICP or its
agents shall be subject to AOL's then-standard advertising policies as
disclosed in advance to ICP; it being understood that such policies
shall not apply to ICP Interactive Sites or any portion thereof other
than Welcome Mats.
4.5 ADVERTISING REGISTRATION FORM. In connection with the sale by ICP of any
AOL Advertisement, ICP shall, in each instance, provide AOL with a
completed standard AOL "Advertising registration form" relating to such
AOL Advertisement and reasonably acceptable to ICP. ICP shall use all
reasonable steps to comply with all federal, state and local laws and
regulations applicable to any AOL Advertisements sold by ICP.
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CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
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ASTERISKS DENOTE SUCH OMISSION
4.6 ADVERTISING PACKAGES. To the extent a Party sells an AOL Advertisement
as part of an advertising package including multiple placement locations
(e.g., both the AOL Programming area or Welcome Mat and another area or
site), such Party shall allocate the payment for such advertising
package between or among such locations in an equitable fashion, subject
to the Advertising Minimum.
4.7 INTERACTIVE COMMERCE.
4.7.1 Transaction Revenues derived from the sale or license of the
following Products sold within the AOL Network (e.g., non-Web
based transactions) and/or as a direct result of AOL promotions
shall be split as follows:
<TABLE>
<S> <C>
i) General Merchandise *** Net Transaction Revenues to ICP, *** to
AOL
ii) Fantasy Games *** Net Transaction Revenues to ICP, *** to
AOL
iii) Memorabilia *** Net Transaction Revenues to ICP, ** to
AOL
iv) Electronic Merchandise *** Gross Transaction Revenues to ICP, ***
(e.g., electronic greeting to AOL
cards)
</TABLE>
4.7.2 Any merchandising activity hereunder shall be subject to (i) the
terms of this Agreement, and (ii) the requirements posted at
keyword "Marketplace Policy" on the America On'ine Brand Service
(or such other keyword as AOL may designate during the Term).
5. PRODUCTION AND SUPPORT: CUSTOMIZATION OF SITES
5.1 FORMS. AOL shall provide to ICP *****: (a) a series of mutually agreed
upon Rainman template forms (initial series due by July 1st, the balance
due August 15th) for the presentation of the Licensed Content to AOL
Members, which forms shall include a mutually agreed upon format and
style and links to the relevant ICP Interactive Site as well as one
advertising slot (collectively, the "TEMPLATE FORMS"); (b) a mutually
agreed upon web browser format through which the ICP Interactive Site
will be accessed, such browser also to include one advertising slot (the
"HYBRID BROWSER").
5.2 PRODUCTION WORK. In the event that ICP requests any AOL production
assistance, ICP shall work with AOL to develop detailed production plans
for the requested production assistance (the "PRODUCTION PLAN").
Following receipt of the final Production Plan, AOL shall notify ICP of
(i) AOL's availability to perform the requested production work, (ii)
except with respect to Welcome Mats, 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 an agreed-upon Production
Plan, such agreement shall be reflected in a separate work order signed
by the Parties. To the extent ICP elects to retain a third
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party provider to perform any such production work, work produced
by such third party provider must generally conform to AOL's
production Standards & Practices (a copy of which will be
supplied by AOL to ICP upon request). The specific production
resources which AOL allocates to any production work to be
performed on behalf of ICP shall be as determined by AOL in its
sole discretion, but in all events shall be sufficient to timely
perform all work agreed upon.
5.3 PUBLISHING TOOLS. AOL shall determine, in its sole discretion,
which of its proprietary publishing tools (each, a "Tool") shall
be made available to ICP to develop and implement any AOL
Programnung or Welcome Mat(s) during the Term. ICP shall be
granted a nonexclusive license to use any such Tool, which
license shall be subject to: (i) ICP's compliance with all rules
and regulations relating to use of the Tools, as published from
time to time by AOL, (ii) AOL's right to withdraw or modify such
license at any time, provided any such withdrawal or modification
does not have a material adverse effect upon ICP, and (iii) ICP's
express recognition that AOL provides all Tools on an "as is"
basis, without warranties of any kind.
5.4 TRAINING AND SUPPORT. AOL shall provide ICP with *****. ICP
shall be responsible to pay the fees associated with such ***** . In
addition, ICP will pay travel and lodging costs associated with its
participation in any AOL training programs (including AOL's reasonable
and necessary travel and lodging costs, subject to ICP's prior written
approval, when training is requested by and conducted at ICP's offices).
5.5 CUSTOMIZATION OF SITES.
5.5.1 PERFORMANCE. ICP shall optimize the ICP Interactive Site for
distribution as provided hereunder to ensure that the
functionality of and features within the ICP Interactive Site
support (i) *****, and (ii) HITP 1.0 or later protocol. ICP
shall allow appropriate AOL personnel to have access to any
Linked ICP Interactive Sites for the purposes of reviewing such
sites to coordinate with ICP to determine the most efficient
method for optimization of the sites for distribution hereunder.
5.5.2 TEMPLATE FORMS AND HYBRID BROWSER. Each area on ICP Interactive
Sites linked from the AOL Network shall be accessed by AOL
Members through the Hybrid Browser.
5.5.3 CUSTOMIZATION. ICP shall customize the ICP Interactive Sites for
AOL Members as follows:
5.5.3.1 WELCOME MATS. AOL may, *****, require ICP to publish on
ICP's servers a special AOL Welcome Mat home page and
separate AOL Welcome Mat home pages for NFL, NBA, MLB,
NHL, NCAA Football and Basketball areas on ICP
Interactive Sites
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exclusively for AOL Members, ***** (as compared to ICP
hosting such page or site itself) for such page or site.
The Welcome Mat pages shall be customized versions of the
applicable pages of ICP Interactive Sites, and shall be
used to provide AOL members with a faster and more
reliable experience. Any Content on the Welcome Mats will
be identical to the relevant ICP Interactive Sites except
that certain third-party links will be customized in
order to minimize the loss of traffic outside of the AOL
Network and assume compliance with AOL advertising
guidelines.
5.5.3.2. CUSTOMIZATION. The Template Forms, Hybrid Browser and
Welcome Mats shall not contain advertisements, promotions
or links for any entity reasonably construed to be in
competition with AOL. or otherwise be in conflict with
AOL advertising policies or exclusivities. In addition,
ICP shall take reasonable steps to capture traffic within
ICP Interactive Sites. To the extent that AOL notifies
ICP in writing that, in AOL's reasonable judgment, Links
from such sites cause an excessive amount of traffic to
be diverted outside of such sites in a manner that has a
detrimental effect on the traffic flow of the AOL
audience, AOL reserves the right, after providing ICP
with a reasonable opportunity to cure, to terminate this
Agreement; provided, however, that if AOL elects to
terminate this Agreement, ICP shall only be responsible
for payment of Carriage Fees through the date of
termination.
6. TERM AND TERMINATION.
6.1. TERM. Unless earlier terminated as set forth herein, the initial term of
this Agreement shall be fourteen (14) months from the Effective Date
(the "TERM") (subject to the Impressions Guarantee being met as set
forth in Paragraph 1.6), provided that for two (2) years after
expiration of the Term, AOL shall continue to have the option to Link to
any ICP Interactive Sites. This Agreement may be extended by mutual
written agreement of the Parties.
6.2 TERMINATION FOR BREACH. Either Party may terminate this Agreement at any
time in the event of a material breach by the other Party which remains
uncured after thirty (30) days written notice thereof.
6.3 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), other than a reorganization under Chapter 11 of the
Bankruptcy Code, which is not dismissed within ninety (90) calendar
days, or (iv) makes an assignment for the benefit of creditors.
7. PUBLIC DISCLOSURE. ICP shall provide AOL with the prior opportunity, subject
to any applicable law or regulation, to review and provide comments on any
description of this Agreement in any documents for public or private
financing of ICP. AOL must approve any information or description regarding
this Agreement that is disclosed to any third party as part of a "road show"
or other public or private financing by ICP, provided such approval shall not
be
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unreasonably withheld. Except as may be required by applicable law,
regulation, or court order, or rules or regulations of any securities
exchange, the prior written approval of the other Party, which shall not be
unreasonably withheld or delayed, shall be required for any other disclosure
of the existence of this Agreement or the terms hereof, provided, however
that if this Agreement or any of its terms must be disclosed under any law,
rule or regulation, ICP shall redact mutually agreed upon portions of this
Agreement (including at a minimum the Anchor Tenancy, Impressions Guarantee,
Carriage Fee and Promotion) to the fullest extent permitted under applicable
laws, rules and regulations and ICP will submit a request to be mutually
agreed upon by ICP and AOL that such portions and other provisions of this
Agreement receive confidential treatment under the 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. Except as expressly
provided in this Section 7.1, each Party agrees to keep confidential the
terms of this Agreement other than in connection with confidential
disclosures on a need to know basis to employees, consultants, counsel,
accountants and other professional advisers of the Party or its affiliates.
Each Party shall use its best efforts to cause any third parties that may
come into possession of any confidential information to maintain the
confidentiality of such information. This section shall survive any
expiration or earlier termination of this Agreement.
8. TERMS AND CONDITIONS. The legal terms and conditions set forth on Exhibit C
attached hereto are hereby made a part of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
Effective Date.
AMERICA ONLINE, INC. SPORTSLINE USA, INC.
By: /s/ DAVID M. COHEN By: /s/ MICHAEL LEVY
------------------------ ------------------------
Print Name: Print Name: Michael Levy
Title: Title: President
Date: Date: 10-17-97
Tax ID/EIN#: Tax ID/EIN#
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EXHIBIT A
DESCRIPTION OF LICENSED CONTENT
A. Content from CBS SportsLine web site to be included within the designated
area of ICP Interactive Site shall include: Sports-related content including
all content published within the sportsline.com and vegasinsider.com domains,
including Top News, Scores, MLB, NBA, NFL, NHL, Golf, Tennis, Auto Racing,
Soccer, NCAA Football and Basketball, and other covered sports, as well as
all sports-related content from all other web sites published by ICP under
its own brand name including:
1) Daily poll
2) Two sports columns available per day
3) At least 10 news stories available per day based upon SportsLine's "daily
budget" meeting to be included within AOL's Top Stories Area
4) Season Preview Packages for -- Baseball, Pro Football, Pro & College
Football, Pro & College Basketball, Hockey
5) The CBS SportsLine 112 - NCAA Football poll 6) The CBS SportsLine NFL
Power Chart - ranking NFL teams available each week
7) Face-to-Face - a statistical player vs. player match-up available 3 times
each week.
8) Week in Review Packages for big college games being broadcast on CBS.
B. Feature Programming- ICP will provide the following:
Two "slide shows" available per week (including NFL, NBA, NHL, MLB, Golf and
Tennis as well as NCAA Football and Basketball "slide shows" during the
respective seasons) which AOL will promote on the main sports screen as
appropriate to fit into AOL Sports' programming discretion.
C. Original Programming -- ICP shall provide the following:
A mini site within ICP's Interactive Site including the following
non-exclusive Content from the 1998 Winter Olympics: (i) a daily news and
notes from Nagano column; and (ii) an "Inside the Truck Feature from the CBS
perspective (three times a week) and the following exclusive Content from the
1998 Winter Olympics: (i) a daily exclusive column from each of Ray Buck and
Mike Lurie; (ii) a daily exclusive audio interview; (iii) 2 slide shows per
week; (iv) on chat per week on AOL (top athlete or CBS personality) and (v) a
"Road to the Olympics Package" including a weekly column and slide show for
the eight (8) weeks leading up to the Nagano Olympic Games. AOL will
incorporate ICP as a key part of the AOL Brand Service 1998 Olympic coverage.
AOL will produce a AOL/ICP co-branded Template Form where AOL will promote
the foregoing Nagano Olympic Games Content provided by ICP.
To the extent that AOL engages in a reasonably consistent pattern of not
promoting the specific Programming described in this Exhibit A, ICP shall have
the right to designate other reasonable categories of Licensed Content.
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EXHIBIT A-1
ICP promotional copy cannot include superlatives such as "greatest", "best",
"ultimate", "top", "hottest" and "coolest" when referring to the ICP Interactive
Sites and the Licensed Content being promoted. With respect to the use of the
words "exclusive", "only on" and similar phrases, such terms can only be used to
the extent the Licensed Content being promoted is exclusive to ICP (e.g. with
respect to its athletes etc.).
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EXHIBIT B -- DEFlNITIONS
ADVERTISING REVENUES. Aggregate amounts collected plus the fair market value of
any other compensation received (such as barter advertising) by ICP or its
agents, as the case may be, arising from the license or sale of AOL
Advertisements, less applicable Advertising Sales Commissions; provided that, in
order to ensure that AOL receives fair value in connection with AOL
Advertisements, ICP shall be deemed to have received no less than the
Advertising Minimum in instances when ICP makes an AOL Advertisement available
to a third party at a cost below the Advertising Minimum.
*****. Except as otherwise agreed by AOL and ICP, (i) ***** or (ii) such
different rate or rates as AOL may establish based upon market conditions and
publish during the Term.
ADVERTISING SALES COMMISSION. In the case of an AOL Advertisement, actual
amounts paid as commissions to third party agencies in connection with sale of
the AOL Advertisement.
AOL BRAND SERVICE. The U.S. version of the America Online brand service
(excluding Digital city, AOL.com, NetFind or any similar "sub" service that may
be distributed by or through the American Online Brand Service).
AFFILIATE. Any agent, distributor or franchisee of AOL, or an entity in which
AOL holds at least a nineteen percent (19%) equity interest.
AOL LOOK AND FEEL. The distinctive and particular elements of graphics, design,
organization, presentation, layout, user interface, navigation, trade dress and
stylistic convention (including the digital implementations thereof) within the
AOL Network and the total appearance and impression substantially formed by the
combination, coordination and interaction of these elements.
AOL MEMBER(S). Authorized users of the AOL Network, including any sub-accounts
using the AOL Network under an authorized master account.
AOL NETWORK. (i) The America Online/registered trademark/ Brand Service, (ii)
any international versions of the America Online service through which AOL or
its affiliates elect to offer the Licensed Content and (iii) any other product
or service owned, operated, distributed or authorized to be distributed by or
through AOL or its Affiliates worldwide through which such party elects to offer
the Licensed content (which may include, without limitation, Internet sites
promoting AOL products and services and any "offline" information browsing
products of AOL or its Affiliates).
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,
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 shall not include information that:
(a) is now or subsequently becomes generally available to the public through no
fault or breach on the part of the receiving party; (b) the receiving party
candemonstrate to have had lawfully in its possession without an obligation of
confidentiality prior to disclosure hereunder; (c) is independently developed by
the receiving party without the use of any Confidential Information of the
disclosing party as evidenced by written documentation; or (d) the receiving
party lawfully obtains from a third party who has the right to transfer or
disclose it and who provides it without any obligation to maintain the
confidentiality of such information.
CONTENT. Information, materials, features, products, services, advertisements,
promotions, links, pointers, technology and software.
ICP INTERACTIVE SITE. Any interactive site or area which is managed, maintained
or owned by ICP or its agents or to which ICP provides and/or licenses
information, content or other materials,including, by way of example and without
limitation, (i) an ICP 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."
IMPRESSION. An AOL Member's viewingof any screen on the AOL Network containing
ICP's Presence, provided, however, that at least one such Presence on a screen
links to an ICP Interactive Site or a ICP-customized Welcome Mat via the Hybrid
Browser.
LINK. The mechanism by which a user at one World Wide Web site can automatically
move to another World Wide Web site and other sites on the Internet or by which
an AOL Member can move from a site on the AOL Network to a site on the World
Wide Web or another site on the AOL Network.
LINKED INTERACTIVE SITE. Any site or area outside of the AOL Network which is
linked to the AOL Network (through a "pointer" or similarl link) in accordance
with the terms and conditions of this Agreement.
CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
LINKED ICP INTERACTIVE SITE. An ICP Interactive Site which is also a Linked
Interactive Site.
NEW MEMBER. Any person or entity (a) who registers for the AOL Network using
ICP's special promotion identifier and (b) from whom AOL or an Affiliate of AOL
collects *****.
GROSS TRANSACTION REVENUES. Aggregate amounts paid in connection with the sale,
licensing, distribution or provision by ICP of any products, services or goods
in or through the AOL Programming areas or Welcome Mats.
NET TRANSACTION REVENUES. Aggregate amounts paid in connection with the sale,
licensing, distribution or provision by ICP of any products, services or goods
in or through the AOL Programming areas or Welcome Mats, excluding, in each
case, amounts collected for sales or use taxes, duties, handling, shipping and
similar charges, credits for returned goods or services, and other mutually
agreed upon direct out of pocket expense attributable to the generation of such
revenues (but not excluding cost of goods sold or any similar costs).
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EXHIBIT C
STANDARD LEGAL TERMS AND CONDITIONS
I. AOL NETWORK
AOL TERMS OF SERVICE; UNSPECIFIED CONTENT. AOL shall have the right to remove,
or direct ICP to remove any Content which, as reasonably determined by AOL (i)
violates AOL's then-standard Terms of Service (as set forth on the America
Online/registered trademark/ brand service), the terms of this Agreement or any
other standard, written AOL policy; or (ii) subject to section 1.2, is not
specifically described on Exhibit A.
COMPLIANCE WITH AOL POLICIES. In the event that AOL notifies ICP in wroting that
any portion of the Licensed Content or any advertising or promotional content
associated with any Linked ICP Interactive Site is in violation of this
provision, then ICP shall use commercially reasonable efforts to block access by
AOL Members to such Licensed Content or advertising using ICP's then-available
ad server or other technology. In the event that ICP cannot block access by AOL
Members to the Licensed Content or advertising in question, then ICP shall
provide AOL prompt written notice of such fact. AOL may then, at its option,
either (i) restrict access from the AOL Network to the Licensed Content or
advertising in question using technology available to AOL or (ii) terminate the
Link from the AOL Network to the Linked ICP Interactive Site until such time as
the Licensed Content or advertising in question is no longer displayed. ICP will
cooperate with AOL's reasonable requests to the extent AOL elects to implement
any such access restrictions. ICP warrants that the Online Area and any Linked
ICP Interactive Sites: (i) will conform to AOL's applicable Terms of Service;
(ii) will not infringe on or violate any copyright, trademark, U.S. patent or
any other third party right; and (iii) will not contain any Content which
violates any applicable law or regulation.
CONTESTS. ICP represents that any contest, sweepstakes or similar promotion
conducted or promoted through any Linked ICP Interactive Site (a "Contest") will
comply with all applicable federal, state and local laws and regulations.
AOL LOOK AND FEEL. ICP acknowledges and agrees that AOL shall own all right,
title and interest in and to the AOL Look and Feel. In addition, AOL shall
retain editorial control over the AOL pages, Template form and the Hybrid
Browser (the "AOL FRAMES"). AOL may, at its discretion, incorporate navigational
icons, links and pointers or other Content into such AOL Frames.
OPERATIONS. AOL shall be entitled to require reasonable changes to Licensed
Content to the extent such Licensed Content will adversely affect operations of
the AOL Network.
RESPONSE TO QUESTIONS/COMMENTS; CUSTOMER SERVICE. ICP shall respond promptly and
professionally to questions, comments, complaints and other reasonable requests
regarding the Licensed Content by AOL Members or on request by AOL, and shall
cooperate and assist AOL in promptly answering the same.
CLASSIFIEDS. To the extent ICP desires to implement any classifieds listing
features on or through the AOL Network, ICP shall obtain AOL's prior written
approval. Such approval may be conditioned upon, among other things, ICP's
conformance with any then-applicable service-wide technical or other standards
related to online classifieds.
STATEMENTS TO THIRD PARTIES. ICP shall not make, publlish, or otherwise
communicate, or cause to be made, published, or otherwise communicated, any
deleterious remarks whatsoever to any third parties concerning AOL or its
affiliates, directors, officers, employees or agents, including without
limitation, AOL's business projects, business capabilities, performance of
duties and services or financial position.
II. TRADEMARKS.
TRADEMARK LICENSE. In designing and implementing any marketing, advertising,
press releases or other promotional materials related to this Agreement and/or
referencing the other Party and/or its trade names, trademarks and service marks
(the "Promotional Materials") and subject to the other provisions contained
herein, ICP shall be entitled to use the following trade names, trademarks and
service marks of AOL; the "American Online/registered trademark/" brand service,
"AOL/trademark/" service/software and AOL's triangle logo; and AOL and its
Affiliates shall be entitled to use the trade names, trademarks and service
marks of ICP as designated by ICP (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.
RIGHTS. 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.
QUALITY STANDARDS. Each Party agrees that the nature and quality of its products
and services supplied in connection with the other Party's Marks shall conform
to quality standards communicated in writing by the other Party for use of its
trademarks. Each Party agrees to supply the other Party, upon request, with a
reasonable number of samples of any Materials publicly disseminated by such
Party which utilize the other Party's Marks. Each Party shall comply with all
aplicable laws, regulations and customs and obtain any required government
approvals pertaining to use of the other Party's Marks.
PROMOTIONAL MATERIALS/PRESS RELEASES. Each Party will submit to the other Party,
for its prior written approval, which shall not be unreasonably withheld or
delayed, any Promotional Materials; provided, however, that either Part's use of
screen shots of any AOL Programming Area or Welcome Mat for promotional purposes
shall not require the approval of the other Party so long as the AOL Network is
clearly identified as the source of such screen shots. Once approved, the
Promotional Materials may be used by a Party and its affiliates for the purpose
of such promotion 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.
INFRINGEMENT PROCEEDINGS. Each Party agrees to promptly notify the other Party
of any unauthorized use of the other Part's Marks of which it has actual
knowledge. Each Party shall have the sole right and discretion to bring
proceedings alleging infrongement of its Marks or unfair competition related
thereto; provided, however, that each Party agrees to provide the other Party,
at such other Party's expense, with its reasonable cooperation and assistance
with respect to any such infrongement proceedings.
III. 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, to
grant the licenses granted hereunder 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; (iv) such Party's
Promotional Materials will neither infringe on any copyright, U.S. patent or any
other third party right nor violate any applicable law or regulation and (v)
such Party acknowledges that the other Party makes no representations,
warranties or agreements related to
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the subject matter hereof which are not expressly provided for in this
Agreement.
IV. 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 shall
take reasonable steps, at least substantially equivalent to the steps it takes
to protect its own proprietary information, during the Term and for a period of
three (3) 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
shall each agree to comply with this Section of this Agreement.
V. RELATIONSHIP WITH AOL MEMBERS
SOLICITATION OF SUBSCRIBERS. Subject to the next sentence, during the Term and
for the two-year period following the expiration or termination of this
Agreement, neither ICP nor its agents will use e-mail on the AOL Network, nor
use the Template Forms, Welcome Mats, Hybrid Browsers or other area or service
accessible only by AOL Members to (i) solicit or participate in the solicitation
of AOL Members when that solicitation is for the benefit of any entity
(including ICP) which could reasonably be construed to be or become in
competition with AOL, or (ii) promote any services which could reasonably be
construed to be in competition with services available through AOL including,
but not limited to, services available through the Internet (e.g., an ICP
Interactive Site). ICP may not send any AOL Member e-mail communications on or
through the AOL Network without a "Business Relationship." For purposes of this
Agreement, a "Business Relationship" shall mean that the AOL Member has either
(i) purchased Products from ICP through the AOL Network or (ii) voluntarily
provided information to ICP through a contest, registration, or other
communication, which included clear and conspicuous notice to the AOL Member
that the information provided by the AOL Member could result in an e-mail being
sent to that AOL Member by ICP or its agents. A Business Relationship does not
exist by virtue of an AOL Member's visit to a Game Site (absent the additional
elements described above).
COLLECTION OF MEMBER INFORMATION. ICP is prohibited from collecting AOL Member
screen names from public or private areas of the AOL Network ( it is understood
that any information collected on any ICP Interactive Site shall not constitute
information requested on the AOL Network regardless of whether such ICP
Interactive Site is linked from the AOL Network), except as specifically
provided below. ICP shall ensure that any survey, questionnaire or other means
of collecting Member Information on any area of the AOL Network including,
without limitation, requests directed to specific AOL Member screen names and
automated methods of collecting screen ames (an "Information Request") complies
with (i) all applicable laws and regulations, (ii) AOL's applicable Terms of
Service, and (iii) any privacy policies which have been issued by AOL in writing
during the Term (the "AOL Privacy Policies"). Each Information Request shall
clearly and conspicuously specify to the AOL Members at issue the purpose for
which Member Information collected through the Information Request shall be used
(the "Specified Purpose").
USE OF MEMBER INFORMATION. ICP shall restrict use of the Member Information
collected through an Information Request to the Specified Purpose. In no event
shall ICP (i) provide AOL Member names, screen names, addresses or other
identifying information ("Member Information") to any third party (except to the
extent specifically (a) permitted under the AOL Privacy Policies or (b)
authorized by the AOL Members in question) or (ii) otherwise use any Member
Information in contravention of the above section regarding "Solicitation of
Members."
VI. TREATMENT OF CLAIMS
LIABILITY. UNDER NO CIRCUMSTANCES SHALL 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 THE USE OF OR INABILITY TO USE THE AOL NETWORK OR ANY OTHER
PROVISION OF THE AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR
ANTICIPATED PROFITS OR LOST BUSINESS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. EXCEPT AS PROVIDED BELOW IN THE "INDEMNITY" SECTION, NEITHER PARTY
SHALL BE LIABLE TO THE OTHER PARTY FOR MORE THAN THE AGGREGATE AMOUNTS EARNED BY
SUCH PARTY UNDER THIS AGREEMENT AS OF THE DATE OF THE APPLICABLE CLAIM.
NO ADDITIONAL WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
REGARDING THE AOL NETWORK, ICP INTERACTIVE SITES OR ANY AOL PUBLISHING TOOLS,
INCLUDING ANY IMPLIED WARRANTY OR 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 PROFITABILITYOF THE AOL NETWORK.
INDEMNITY. Each Party agrees to indemnify, defend and hold the other Party
harmless from and against all claims, costs, liabilities, judgments, expenses or
damages (including reasonable attorneys' fees and court costs) arising from or
related to any cause of action brought against the other Party by any person or
entity that is not a party to this Agreement resulting from any material breach
of any obligation, duty, representation or warranty of this Agreement,provided
the other Party promptly notifies indemnifying Party of any such claim and
provides such Party the opportunity to control the defense of the action and al
negotiations for settlement or compromise.
ACKNOWLEDGMENT. AOL AND ICP EACH ACKNOWLEDGES THAT THE PROVISIONS OF THIS
AGREEMENT WERE NEGOTIATED TO REFLECT AN INFORMED, VOLUNTARY ALLOCATION BETWEEN
THEM OF ALL RISKS (BOTH NOWN 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, AND SHALL BE ENFORCEABLE INDEPENDENT OF
AND SEVERABLE FROM ANY OTHER ENFORCEABLE OR UNENFORCEABLE PROVISION OF THIS
AGREEMENT.
VII. MISCELLANEOUS
AUDITING RIGHTS. Each Party shall maintain complete, clear and accurate records
of all expenses, revenues, fees, transactions and related documentation
(including agreements) in connection with the performance of this Agreement
("Records"). All such Records shall be maintained for a minimum of three (3)
years following termination of this Agreement. For the sole purpose of ensuring
compliance with this Agreement, each Party shall have the right, at its expense,
to direct an independent certified public accounting firm subject to strict
confidentiality restrictions to conduct a reasonable and necessary copying and
inspection of portions of the Records of the other Party which are directly
related to amounts paable to the Party requesting the audit pursuant to this
Agreement. Any such audit may be conducted during regular business hours after
twenty (20) business days prior written notice, subject to the following; (a)
such audits shall not be made more frequently thanonce every twelve months, and
(b) no such audit of AOL shall occur during the period beginning on June 1 and
ending October 1 and no such audit of ICP shall occur during the period
beginning on December 1 and March 31. In lieu of providing access to its Records
as described above, a Party shall be entitled to provide the other Party with a
report from an independent certified public accounting firm confirming the
information to be derived from such Records.
EXCUSE. Neither Party shall 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.
INDEPENDENT CONTRACTORS. The Parties to this Agreement are independent
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contractors. Neither Party is an agent, representative or partner of the other
Party. Neither Party shallhave 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 shall not be interpreted or
construed to create an association, agency, joint venture or partnership between
the Parties or to impose any liability attributable tosuch a relationship upon
either Party.
NOTICE. Any notice, approval, request, authorization, direction or other
communication under this Agreement shall be givenin writing and shall be
effective for all purposes (i) on the delivery date if delivered personally to
the Party to whom the same is directed; (iii) upon delivery by a commercial
overnight carrier, with written verification of receipt (or written verification
of refusal of delivery), or (iv) upon receipt (or, if refused, upon date of
refusal with written verification of refusal) by U.S. certified or
registeredmail, return receipt requested, postage and charges prepaid, or any
other means of rapid mail delivery for which a receipt is available, to the
person(s) specified below at the address of the Party set forth in the first
paragraph of this Agreement.
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 shall 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 shall be
and remain in full force and effect.
RETURN OF INFORMATION. Upon the expiration or termination of this Agreement,
each Party shall, 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 belonging to the other Party.
SURVIVAL. In addition to such other provisions as are designated elsewhere in
this Agreement, Sections III, IV, V, VI, and VII of this Exhibit C, shall
survive the completion, expiration, termination or cancellation of this
Agreement.
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 shall 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.
AMENDMENT. No change, amendment or modification of any provision of this
Agreement shall be valid unless set forth in a written instrument signed by the
Party subject to enforcement of such amendment.
FURTHER ASSURANCES. Each Party shall 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.
ASSIGNMENT. ICP shall not assign this Agreement or any right, interest or
benefit under this Agreement without the prior written consent of AOL.
Notwithstanding the foregoing, ICP shall have the right to assign this Agreement
without AOL's consent and without prior notice in connection with a merger,
consolidation, or sale of all or substantially all of ICP's assets; provided
that any such assignee (i) has the resources necessary to fully and completely
perform all of ICP's obligations hereunder and (ii) is not reasonably construed
to be a competitor of AOL (i.e.,entities that offer online or Internet
connectivity (or any successor form of connectivity) and entities that are
broad-based aggregators and distributors of third party interactive content
and/or services). Subject to the foregoing, this Agreement shall be fully
bindingupon, inure to the benefit of and be enforceable by the Parties hereto
and their respective successors and assigns.
CONSTRUCTION; SEVERABILITY. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be c onstrued or if any
such provision is held invalid by a court with jurisdiction over the Parties to
this Agreement, (i) such provision shall 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 shall remain in full force and effect.
REMEDIES. Except where otherwise specified, the rights and remedies granted to a
Party under this Agreement are cumulative andin addition to, and not in lieu of,
any other rights or remedies which the Party may possess at law or in equity.
APPLICABLE LAW; JURISDICTION. This Agreement shall 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. Each Party irrevocably
consents to the non-exclusive jurisdiction of the courts of the Commonwealth of
Virginia and the federal courts situated in the Commonwealth of Virginia, in
connection with any action to enforce the provisions of this Agreement, to
recover damages or other relief for breach or default under this Agreement, or
otherwise arising under or by reason of this Agreement.
EXPORT CONTROLS. Both parties shall adhere to all applicable laws, regulations
and rules relating to the export of technical data and shall 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.
HEADINGS. The captions and headings used in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
COUNTERPARTS. This Agreement may be executed in counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same document.
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Exhibit D
[NOT APPLICABLE]
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CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
EXHIBIT E
ICP IN-KIND COMMITMENTS
ADDENDUM TO AGREEMENT
This Addendum to Agreement (this "ADDENDUM") is made and entered into
as of October 16, 1997 (the "Effective Date"), by and among AMERICA ONLINE INC.
("AOL"), SPORTSLINE USA, INC. ("SportsLine"), and CBS, INC., ("CBS") and
provides as follows:
1. CBS PROGRAMMING AND PROMOTION. Pursuant to Section 1.5.2 of that certain
agreement between AOL and SportsLine dated July 1, 1997 (the "Agreement"),
SportsLine agreed to provide AOL with the equivalent of ***** . The parties
hereby agree that SportsLine's obligation to provide the foregoing programming
and promotion shall be fully satisfied by the following on-air promotion of the
SportsLine/AOL "keyword" (i.e., "SportsLine") in connection with CBS Sports
broadcasts of sports events over the CBS Television Network (as defined in the
Agreement) (each promotion specified below, an "ON-AIR PROMOTION"):
a) ***** The scheduling for such On-Air Promotions will be made on a
rotational basis, with the understanding that CBS will use
reasonable efforts to target the highest rated CBS sports
programming and that approximately 60% of the promotions specified
in this Section I (a) shall be Drop-lns;
b) ***** provided that: (a) the promotions specified in this Section
l(b) shall occur, on average over the *****, during the *****
programming; and (b) at least ***** specified in this Section 1 (b)
shall be Drop-lns; and
c) *****
CBS shall consult on a weekly basis with SportsLine and AOL concerning
the content, design and copy for the On-Air Promotions, provided that CBS will
have final approval with respect thereto, except that AOL shall have final
approval over all uses of any AOL names, trade names or trademarks. The copy
will contain either an audio or graphic reference to the CBS SportsLine keyword
and/or CBS SportsLine area on AOL and also include at a minimum a reference to
"America Online" and/or "AOL" and the relevant CBS SportsLine keyword on AOL.
For example, "Check the latest scores . . . etc., on America Online at Keyword:
CBS SportsLine."
Notwithstanding anything contained herein to the contrary, CBS shall
have no obligation to include any On- Air Promotion in any particular program
if, despite CBS's reasonable efforts, current or future contractual obligations
prevent or restrict CBS from doing so, provided that CBS agrees to offer AOL a
reasonably equivalent On-Air Promotion as a substitute for any such lost On-Air
Promotion. AOL acknowledges that CBSis contractually prohibited from making any
On-Air Promotion within the CBS Sports broadcast of the Masters Golf Tournament.
2. ***** CBS will work with AOL to establish a schedule on or before December
31, 1997, that ensures that ***** CBS and AOL will work in good faith to
construct ***** and other reasonable and customary requirements.
3. ENTIRE AGREEMENT. This Addendum represents the entire agreement of the
parties with respect to the subject matter hereof and supersedes all prior
and/or contemporaneous agreements and understandings, written or oral between
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or among the parties with respect to the subject matter hereof; provided,
however, that this Addendum shall be attached to and is hereby incorporated by
reference into the Agreement.
4. ASSIGNMENT. This Addendum shall be binding upon and inure to the benefit of
the Parties and their respective successors and assigns: provided, however, that
the duties of each party hereunder shall not be assignable nor delegable without
the prior written approval of the other parties hereto, which consent shall not
be unreasonably withheld. Notwithstanding the foregoing, the parties hereto may
make such assignment or delegation without the other parties' consent (but with
prior written notice) in connection with a consolidation, merger, or sale of all
or substantially all of such party's assets, so long as any proposed assignee
(i) has the assets and resources required to fully and completely perform all of
such party's obligations under the Agreement and (ii) is not reasonably
construed to be a competitor of AOL i.e., entities that offer online or Internet
connectivity (or any successor form of connectivity) and entities that are
broad-based aggregators and distributors of third party interactive content
and/or services.
5. COUNTERPARTS. This Addendum may be executed by facsimile and in counterparts,
each of which shall be deemed an original and all of which together shall
constitute one agreement.
6. WAIVER; AMENDMENT. No waiver or amendment of any provision of this Addendum
shall be effective unless it is in writing and signed by the authorized
representatives of the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum as
of the date first written above:
AMERICA ONLINE, INC.
By: /S/ DAVID M. COHEN
-----------------------------
Print Name:
Title:
SPORTSLINE USA, INC.
By: /s/ MICHAEL LEVY
----------------------------
Name: Michael Levy
Title: President
CBS, Inc.
By: /s/ [illegible]
-----------------------------
Name:
Title:
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<PAGE>
CONFIDENTIAL INFORMATION OMMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
ASTERISKS DENOTE SUCH OMISSION
EXHIBIT F
NEW MEMBER ACQUISITION PROGRAMS
A. Download button on ICP Interactive Site as provided in section 2.2 --
bounties shall be *****.
B. AOL will create co-branded AOL diskette and/or CD-ROM packages for
agreed-upon CBS SportsLine, CBS Sports and Vegas Insider distribution and
mailings, and such distribution or mailings may also include certain existing
and future ICP marketing partners (e.g., The Orange Bowl, The NFL Players
Association and mutually agreed upon Super Star athletes (e.g. Shaquille
O'Neal, Michael Jordan, Wayne Gretzky, Cal Ripken, Jerry Rice etc.)).
C. AOL shall pay bounties to ICP on account of AOL New Members generated from
the co-branded promotion as described in sub-section B above, at the
following rates:: *****
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<PAGE>
EXHIBIT G
CERTIFICATION OF COMPLIANCE WITH COMMITMENTS
REGARDING PROMOTIONS AND EXCLUSIVITY
Pursuant to Section 2 of the Interactive Services Agreement between (~`ICPl')
and America Online, Inc. ("AOL"), dated as of , 1997 (the "Agreement"), the
following report is delivered to AOL for the month ending (the "Month"):
I. PROMOTIONAL COMMITMENTS
ICP hereby certifies to AOL that ICP completed the following promotional
commitments during the Month:
TYPE OF DATE(S) OF DURATION/CIRCULATION OF RELEVANT
PROMOTION PROMOTION PROMOTION CONTRACT SECTION
1.
2.
3.
IN WITNESS WHEREOF, this Certificate has been executed this ________ day of
_____________, 199_.
____________________________________
By:_________________________________
Print Name:_________________________
Title:______________________________
Date:_______________________________
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CONFIDENTIAL