Exhibit 10.3
Confidential
INTERACTIVE MARKETING AGREEMENT
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This Interactive Marketing Agreement (the "Agreement") dated as of
June 1, 1998 (the "Effective Date"), is between America Online, Inc. ("AOL"), a
Delaware corporation, with offices at 22000 AOL Way, Dulles, Virginia 20166, and
DataMark Holding Inc., a Delaware corporation, d/b/a Digital Courier
Technologies, Inc., ("MP"), with offices at 448 E. Winchester Street, Suite 400,
Salt Lake City, Utah 84107. AOL and MP may be referred to individually as a
"Party* and collectively as the "Parties."
INTRODUCTION
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AOL and MP each desires to enter into an interactive marketing
relationship whereby AOL will promote and distribute an interactive site
referred to (and further defined) herein as the Affiliated MP Site. This
relationship is further described below and is subject to the terms and
conditions set forth in this Agreement. Defined terms used but not defined in
the body of the Agreement will be as defined on Exhibit B attached hereto.
TERMS
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1 . PROMOTION, DISTRIBUTION AND MARKETING.
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1.1. AOL Promotion of Affiliated MP Site. AOL will provide MP with
the promotions (or any comparable promotions as provided below)
for the Affiliated MP Site described on Exhibit A (the
"Promotions"). Subject to MP's reasonable approval, AOL will
have the right to fulfill its promotional commitments with
respect to any of the foregoing by providing MP with comparable
promotional placements in appropriate alternative areas of the
AOL Network. In addition, if AOL is unable to deliver any
particular Promotion, subject to MP's reasonable approval, AOL
will provide MP, as its sole remedy, with a comparable
promotional placement. 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 modifications materially and adversely affect any specific
Promotion, subject to MP's reasonable approval, AOL will provide
MP, as its sole remedy, with a comparable promotional placement.
1.2. Impressions. During the Term, AOL shall deliver Five Hundred
Million (500,000,000) Impressions to MP through the Promotions
(the "Impressions Commitment"). With respect to the Impressions
Commitment, any shortfall in Impressions at the end of a year
will not be deemed a breach of the Agreement by AOL; instead
such shortfall will be added to the Impressions target for the
subsequent year. In the event there is (or will be in AOL's
reasonable judgment) a shortfall in Impressions as of the end of
the Initial Term (a "Final Shortfall"), AOL will provide MP, as
its sole remedy, with advertising placements on the AOL Network
which have a total value, based on AOL's then-current
advertising rate card, equal to the value of the Final Shortfall
(determined by multiplying the percentage of Impressions that
were not delivered by the total, guaranteed payment provided for
below). In the event AOL provides an excess of Impressions in
any year, the Impressions target for the subsequent year will be
reduced by the amount of such windfall.
1.3 AOL.com Promotions.
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(i) AOL Option. On or prior to June 30, 1998 (the "Closing
Date"), AOL shall have the option (the "AOL Option"),
exercisable in AOL's sole discretion, to provide MP with
the additional package of promotions and placements on
AOL.com as provided on Exhibit A-1 attached hereto (the
"AOL.com Promotions"), by providing MP with written
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notice, which notice shall be attached hereto as an
appendix and will be incorporated as part of this
Agreement. Should AOL exercise the AOL Option, MP shall
accept the AOL.com Promotions and shall immediately begin
payment of the amounts required pursuant to Section 4.2
hereof. In such event, the AOL.com Promotions will be
applied towards fulfilling the Impressions Commitment and
such AOL.com Promotions will be deemed to be a part of
the Promotions as defined in Section 1.1 hereof.
(ii) AOL.com Promotions. Provided that AOL has exercised the
AOL Option, at any time during the Term, AOL shall have
the right to cease the AOL.com Promotions by providing MP
with at least thirty (30) days notice of its intent to do
so. In the event that AOL exercises the foregoing right,
AOL shall forfeit all rights in and to any unvested
Performance Warrant Shares granted to AOL pursuant to
Section 5 hereof. Notwithstanding the foregoing, in no
event will AOL provide less than the Impressions
Commitment through the Promotions.
(iii) AOL.com Premier Position. In the event that AOL decides
to offer a premier video partner position to any third
party on AOL.com which is similar to the Premier Video
Partner position provided to MP in Section 3 hereof, AOL
shall enter into good faith negotiations with MP for a
period of time not to exceed fifteen (15) days with
respect to offering a premier video position to MP on
AOL.com.
1.4. Content of Promotions. Promotions for MP will link only to the
Affiliated MP Site and will promote only the Premier Product.
The specific MP Content to be contained within the Promotions
(including, without limitation, advertising banners and
contextual promotions) (the Promo Content") will be determined
by MP, subject to AOL's technical limitations, the terms of this
Agreement and AOL's then-applicable policies relating to
advertising and promotions. MP will submit in advance to AOL for
its review a quarterly online marketing plan with respect to the
Affiliated MP 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. MP 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).
1.5. MP Promotion of Affiliated MP Site and AOL. As set forth in
fuller detail in Exhibit C, MP will promote AOL as its preferred
Interactive Service and will promote the availability of the
Affiliated MP Site through the AOL Network. MP will not
implement or authorize any promotion similar in any material
respect (including, without limitation, in scope, purpose,
amount, prominence or regularity) to the promotion required or
provided pursuant to Exhibit C for any other Interactive
Service.
2. AFFILIATED MP SITE.
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2.1. Customized Site. The Affiliated MP Site shall be a customized,
optimized and "mirrored" version of MP's main web site
containing the specific Content described in Section 2.2 below.
2.2. Content. MP will make available through the Affiliated MP Site
the comprehensive offering of Products and other related Content
described on Exhibit D. Except as mutually agreed in writing by
the Parties, the Affiliated MP Site will contain only Content
that is directly related to the MP Products listed on Exhibit D
and will not contain any third-party products, services,
programming or other Content. All sales of Products through the
Affiliated MP Site will be conducted through a direct sales
format; MP will not promote, sell, offer or otherwise distribute
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any products through any format other than a direct sales format
(e.g., through auctions or clubs) without the prior written
consent of AOL. MP will review, delete, edit, create, update and
otherwise manage all Content available on or through the
Affiliated MP Site in accordance with the terms of this
Agreement. MP will ensure that the Affiliated MP Site does not
in any respect promote, advertise, market or distribute the
products, services or content of any other Interactive Service
or any entity reasonably construed to be in competition with
AOL.
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, MP
will be responsible for all production work associated with the
Affiliated MP Site, including all related costs and expenses.
2.4. Hosting: Communications. MP will be responsible for all
communications, hosting and connectivity costs and expenses
associated with the Affiliated MP Site. In addition, MP will
provide all computer hardware (e.g., servers, network devices,
routers, switches, telephones and other similar equipment) and
all computer software (e.g., web servers, operating systems,
applications, databases and other similar resources) necessary
for MP to access the AOL Network. Additionally MP will bear
responsibility for the implementation, management and costs
associated with the Affiliated MP Site. MP will utilize a
dedicated high speed connection to maintain quick and reliable
transport of information to and from the MP data center and
AOL's designated data center.
2.5. Technology. MP will take all reasonable steps necessary to
conform its promotion and sale of Products through the
Affiliated MP Site to the then-existing technologies identified
by AOL which are optimized for the AOL Service. Additionally, MP
shall have the right to make available to AOL users (i)
"streaming audio or video" or any comparable audio or video
delivery technology and (ii) "wav" files, mpeg files or other
downloadable, nonstreamed audio or video files through any
linked pages of the Affiliate MP Site; provided that, MP shall
not make available any full length Video Products or any
substantial portion thereof through the products described in
either clause (i) or (ii) above, and (b) if MP's provision of
the foregoing products result in an increase in AOL's network
costs, AOL shall have the right to restrict MP's offering of
the foregoing and the Parties shall renegotiate the economic
terms of this Agreement. AOL will be entitled to require
reasonable changes to the Content (including, without
limitation, the features or functionality) within any linked
pages of the Affiliated MP Site to the extent such Content will,
in AOL's good faith judgment, adversely affect any operational
aspect of the AOL Network. AOL reserves the right to review and
test the Affiliated MP 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.
2.6. Product Offering. MP will ensure that the Affiliated MP Site
includes 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 MP through any Additional MP Channel; provided,
however, that (a) such inclusion 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 (b) the specific changes in scope,
nature and/or offerings required by such inclusion will be
subject to AOL's review and approval and the terms of this
Agreement.
2.7. Pricing and Terms. MP will ensure that: (a) the prices (and any
other required consideration) for Products in the Affiliated MP
Site do not exceed the prices for the Products or substantially
similar Products offered by or on behalf of MP through any
Additional MP Channel; (b) the terms and conditions related to
Products in the Affiliated MP Site are no less favorable in any
respect than the terms and conditions for the Products or
substantially similar Products offered by or on behalf of MP
through any Additional MP Channel; and (c) both the prices and
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the terms and conditions related to Products in the Affiliated
MP Site are reasonably and generally competitive in all material
respects with the prices and terms and conditions for the
Products or substantially similar Products offered by third
parties which offer Video Products through any Interactive Site.
2.8. Special Offers. MP will (a) promote through the Affiliated MP
Site any special or promotional off ers made available by or on
behalf of MP through any Additional MP Channel and (b) promote
through the Affiliated MP Site on a regular and consistent basis
special offers exclusively available to AOL Members and /or AOL
Users ((a) and (b) collectively, the "Special Offers"). MP will
provide AOL with reasonable prior notice of Special Offers so
that AOL can market the availability of such Special Offers in
the manner AOL deems appropriate in its editorial discretion,
subject to the terms and conditions hereof.
2.9. Operatinq Standards. MP will ensure that the Affiliated MP Site
complies at all times with the standards set forth in Exhibit E
attached hereto. To the extent site standards are not
established in Exhibit E with respect to any aspect or portion
of the Affiliated MP Site (or the Products or other Content
contained therein), MP will provide such aspect or portion at a
level of accuracy, quality, completeness, and timeliness which
meets or exceeds prevailing standards in the video sale and
rental industry. In the event MP fails to comply with any
material terms of this Agreement or any Exhibits attached
hereto, AOL will have the right (in addition to any other
remedies available to AOL hereunder) to decrease the promotion
it provides to MP hereunder (and to decrease or cease any other
contractual obligation hereunder) until such time as MP corrects
its non-compliance (and in such event, AOL will be relieved of
the proportionate amount of any promotional commitment made to
MP by AOL hereunder corresponding to such decrease in promotion)
and (b) any revenue threshold(s) set forth in Section 4.2 will
each be adjusted proportionately to correspond to such decrease
in promotion and other obligations during the period of
non-compliance.
2.10. Advertising Sales. MP shall have the right to sell promotions,
advertisements, links pointers or similar services or rights
through the Affiliated MP Site ("Advertisements"). The specific
advertising inventory within the Affiliated MP Site will be as
reasonably determined by MP. Notwithstanding the foregoing, in
the event that MP desires to retain a third party to sell
advertising in the Affiliated MP Site on behalf of MP, MP shall
first offer to AOL the right to sell such Advertisements on
behalf of MP. MP and AOL shall share the revenues derived from
the sale of Advertisements in the Affiliated MP Site pursuant to
Section 4.4 hereof. All Advertisements in the Affiliated MP Site
shall be subject to AOL's then-applicable advertising policies,
exclusivities and prior approval.
2.11. Traffic Flow. MP will take reasonable efforts to ensure that AOL
traffic is either kept within the Affiliated MP 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 Affiliated MP Site back to
the AOL Service.
3. PREMIER STATUS.
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3.1. Premier Product Provided MP is in compliance with all material
terms of this Agreement, during the Initial Term, MP will be one
of only two third-party resellers of Premier Products (each a
"Premier Video Partner") expressly promoted by AOL on the
Premier Screens of the AOL Service as provided on Exhibit A
attached hereto.
3.2. Exceptions. Notwithstanding anything to the contrary contained
in this Section 3 (and without limiting any actions which may be
taken by AOL without violation of MP's rights hereunder), no
provision of this Agreement will limit AOL's ability (on or off
the AOL Network) to: (i) undertake activities or perform duties
pursuant to existing arrangements with third parties (or
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pursuant to any agreements to which AOL becomes a party
subsequent to the Effective Date as a result of a Change of
Control, assignment, merger, acquisition or other similar
transaction); (ii) promote or provide "run of service"
advertisement placements; (iii) promote or provide advertisement
placements to any third party in any shopping area or channel;
(iv) promote or provide advertisement placements to any video
club, motion picture, television or film studio or any entity
which creates films, television programs, or motion picture
theatrical productions; (v) promote or provide advertisement
placements to any reseller of Video Products, provided that,
except for the other Premier Video Partner, such promotions or
advertisements cannot promote any online transactions in
connection with Video Products or link to a web site which
offers online transactions in connection with Video Products;
(vi) enter into an arrangement with any third party for the
primary purpose of acquiring AOL Members whereby such party is
allowed to promote or market products or services to AOL Members
that are acquired as a result of such agreement; (vii)create
contextual links or editorial commentary relating to any third
party marketer of the Premier Product; or (viii) promote,
advertise or distribute the products of any third party which is
an aggregator of products (i.e., it is primarily engaged in
activities other than marketing Video Products) each an
"Aggregator"); provided that such promotions do not expressly
promote an Aggregator's Premier Product within the Premier
Screens.
3.3. Product Offer Right. In the event that MP does not offer certain
Video Products through the Affiliated MP Site, and if AOL, in
its reasonable judgment, determines that the offering of such
Video Products is important to a good AOL User experience, MP
shall have thirty (30) days after notice from AOL to provide
such Video Products in the MP Affiliated Site, and if within
such thirty (30) day period MP is unable to provide such Video
Products, AOL shall have the right to engage other third parties
to provide such Video Products.
4. PAYMENTS.
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4.1. Guaranteed AOL Service Payments. MP will pay AOL a
non-refundable guaranteed payment of Twelve Million Dollars (US
$12,000,000) as follows:
(i) One Million Two Hundred Thousand Dollars (US $1,200,000)
upon execution of this Agreement;
(ii) Four Million Dollars (US $4,000,000) on or prior to
January 1, 1999;
(iii) Four Million Dollars (US $4,000,000) on or prior to July
1, 1999; and
(iv) Two Million Eight Hundred Thousand Dollars (US $2, 800,000)
on or prior to January 1, 2000.
(v) Notwithstanding the foregoing, all payments required
pursuant to this Section 4.1 shall immediately become due and
payable within five (5) days of the occurrence of an
underwritten secondary public offering of shares of MP resulting
in net proceeds to MP of at least Twenty Million Dollars (US
$20,000,000).
4.2 Guaranteed AOL.com Payments. In the event that AOL exercises the
AOL Option pursuant to Section 1.3 hereof, on the Closing Date,
MP shall deliver to AOL either (i) an aggregate of nine hundred
fifty five thousand four hundred fourteen (955,414) shares of
common stock of MP (the "Common Stock") or (ii) in the event
that the ten day trailing average closing price per price of the
Common Stock reported on the NASDAQ Stock Market ("the Market
Price") as of the Closing Date, is less than the Market Price as
of the execution date hereof, such number of shares of Common
Stock as determined by dividing (i) the Market Price as of the
Closing Date into (ii) Six Million Dollars (US $6,000,000).
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4.3. Sharing of Transaction Revenues. MP shall pay to AOL an amount
equal to four tenths of one percent (.4%) of Transaction
Revenues until such time as the Revenue Threshold has been met.
From and after the Revenue Threshold has been met, MP shall pay
to AOL an amount equal to three percent (3%) of all Transaction
Revenues generated hereunder. MP will pay all of the foregoing
amounts on a quarterly basis within thirty (30) days following
the end of the quarter in which the applicable Transaction
Revenues were generated.
4.4. Sharing of Advertising Revenues. MP shall pay to AOL an amount
equal to fifty percent (50%) of all Advertising Revenues
generated hereunder. Each Party will pay the other Party all
Advertising Revenues received and owed to such other Party as
described herein on a quarterly basis within thirty (30) days
following the end of the quarter in which such amounts were
generated by such Party.
4.5. Alternative Revenue Streams. In the event MP or any of its
affiliates (a) receives or desires to receive, directly or
indirectly, any Additional Revenues in connection with the
Affiliated MP Site (an "Alternative Revenue Stream"), MP will
promptly inform AOL in writing, and the Parties will negotiate
in good faith regarding whether MP will be allowed to market
Products producing such Alternative Revenue Stream through the
Affiliated MP Site, and if so, the equitable portion of revenues
from such Alternative Revenue Stream (if applicable) that will
be shared with AOL (in no event less than the percentage of
Transaction Revenues to be paid to AOL pursuant to this Section
4).
4.6. 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 as listed in the Wall Street Journal. All payments required
hereunder will be paid in immediately available, non-refundable
U.S. funds wired to the "America Online" account, Account Number
323070752 at The Chase Manhattan Bank, 1 Chase Manhattan Plaza,
New York, NY 10081 (ABA: 021000021).
4.7. Auditing Rights. MP 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 will have the
right, at its expense, to direct an independent certified public
accounting firm to conduct a reasonable and necessary inspection
of portions of the books and records of MP which are relevant to
MP's performance pursuant to this Agreement. Any such audit may
be conducted after twenty (20) business days prior written
notice.
4.8. Taxes. MP 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
attorneys'fees.
4.9. Reports.
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4.9.1. Sales Reports. MP will provide AOL in an automated manner
with a monthly report 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 MP
through the Affiliated MP Site): summary sales
information by day (date, number of Products, number of
orders, total Transaction Revenues); and (ii) detailed
sales information (order date/time stamp (if technically
feasible), purchaser name and screenname, SKU or Product
description) (the information in clauses (i) and (ii),
"Sales Reports"). AOL will be entitled to use the Sales
Reports in its business operations, subject to the terms
of this Agreement. More generally, each payment to be
made by MP pursuant to this Section 4 will be accompanied
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by a report containing information which supports the
payment, including information identifying (i) gross
Transaction Revenues and all items deducted or excluded
from gross Transaction Revenues to produce Transaction
Revenues, 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.) and (ii) any applicable
Advertising Revenues.
4.9.2. Fraudulent Transactions To the extent permitted by
applicable laws, MP will provide AOL with an prompt
report of any fraudulent order, including the date,
screenname or email address and amount associated with
such order, promptly following MP obtaining knowledge
that the order is, in fact, fraudulent.
5. WARRANTS.
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5.1 Grant of Warrants.
(i) First Warrant. MP hereby grants to AOL a warrant
representing the right for a seven (7) year period to
purchase an aggregate of three hundred eighteen thousand
four hundred seventy one (318,471) shares of Common Stock
(the "Performance Warrant Shares") at an exercise price
equal to Twelve Dollars and Fifty Seven Cents ($12.57).
(ii) Second Warrant. In the event that MP exercises the AOL
Option pursuant to Section 1.3 hereof, on the Closing
Date, MP will grant to AOL a warrant representing the
right for a seven (7) year period to purchase (i) an
aggregate of three hundred eighteen thousand four hundred
seventy one (318,471) fully vested shares of Common Stock
(the "Time Warrant Shares") at an exercise price equal to
Six Dollars and Twenty Eight Cents ($6.28) or (ii) in the
event that the Market Price as of the Closing Date is
less than the Market Price as of the execution date
hereof, such number of fully vested shares of Common
Stock as determined by dividing (i) the Market Price as
of the Closing Date into (ii)Two Million Dollars (US
$2,000,000), at an exercise price equal to the Market
Price as of the Closing Date.
5.2 Vesting of Performance Warrant Shares. The Performance Warrant
Shares granted hereunder shall vest in accordance with the
following schedule:
(i) during the second (2nd), third (3rd), fourth (4th ) and
fifth (5th ) quarters of the Term, provided that AOL
shall have delivered at least twenty five million
(25,000,000) Impressions to MP during each of the
foregoing quarters, at the end of each such quarter, AOL
shall vest in twenty six thousand, five hundred thirty
nine (26,539) of the Performance Warrant Shares; and
(ii) during the sixth (6th) through thirteenth (13th)
quarters of the Term, provided that AOL shall have
delivered at least fifty million (50,000,000) Impressions
to MP during each of the foregoing quarters, at the end
of each such quarter, AOL shall vest in twenty six
thousand, five hundred thirty nine (26,539) of the
Performance Warrant Shares.
(iii) Notwithstanding the foregoing, all Performance Warrant
Shares shall immediately vest (a) in the event that AOL
and MP shall enter into a binding agreement with respect
to the promotion by AOL of other content or commerce
offerings of MP, or (b) upon a Change of Control of MP.
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5.3 Terms and Conditions/ Anti-Dilution Rights. MP hereby agrees to
use best efforts to amend its current registered "shelf"
offering to ensure that any shares of Common Stock granted to
AOL hereunder, or any warrants convertible into or exchangeable
for Common Stock, shall be granted to AOL from shares of Common
Stock that are registered and fully transferable under MP's
current "shelf" offering. On the execution date hereof, AOL
shall have weighted average anti-dilution protection rights in
the event that MP issues any shares of Common Stock or any
security convertible into or exchangeable for Common Stock to
any person or entity and the consideration per share is less
than the exercise price of the Time Warrant Shares (as
applicable) or the Performance Warrant Shares. All rights
granted in this Section 5.3 are supplementary and additional to
any other rights provided herein, including, without limitation,
the rights granted in Section 5.1 hereof.
5.4 Approval: Final Agreement.
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(a) The provisions of this Section 5 contain all of the
principal and essential terms and conditions of the Warrant
granted to AOL hereunder, and without limiting the foregoing,
within thirty (30) days of the execution hereof (the "Cutoff
Date"), MP shall issue the Warrant granted hereunder and will
enter into a Common Stock Subscription Warrant Agreement
substantially in the form of Exhibit H attached hereto which
will document the Warrants granted to AOL hereunder.
(b) MP hereby acknowledges and agrees that, in the event of a
breach of the provisions of this Section 5.4, AOL would be
irreparably harmed and it would be impossible for AOL to
determine the amount of damages that would result from such
breach, and that accordingly, any remedy at law for any such
breach or threatened breach thereof, would be inadequate.
Accordingly, MP agrees that if the Cutoff Date shall have
occurred and MP shall not have executed a Common Stock
Subscription Warrant, the provisions of this Section 5.4 may be
specifically enforced through equitable and injunctive relief in
addition to any other applicable rights or remedies AOL may
have, from any court of competent jurisdiction. MP hereby waives
the claim or defense that a remedy at law would be adequate in
respect to this provision, and agrees to have this Section 5.4
specifically enforced against MP without the necessity of
posting bond or other security, and consents to the entry of
injunctive relief enjoining or restraining any breach or
threatened breach of this Section 5.4.
6. TERM; RENEWAL; TERMINATION.
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6.1. Term. Unless earlier terminated as set forth herein, the initial
term of this Agreement will be thirty nine (39) months from the
Effective Date (the "Initial Term").
6.2. Renewal. Upon conclusion of the Initial Term of this Agreement,
AOL will have the right to renew the Agreement for successive
one-year renewal terms (each a "Renewal Term" and together with
the Initial Term, the "Term") by providing MP with notice of
AOL's intention to renew the Agreement for a subsequent Renewal
Term no later than thirty (30) days prior to the commencement of
such Renewal Term. During any such Renewal Term: (i) MP will not
be required to pay any guaranteed, fixed payment or perform the
cross promotional obligations specified in Section 1; and (ii)
AOL will not be required to provide MP with the premier
promotions as provided in Section 3 and Exhibit A hereof;
provided that (iii) for so long as AOL may elect to maintain the
premier promotions contained herein during a Renewal Term, MP
will continue to perform its cross-promotional obligations.
6.3. 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 MP
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in connection with MP's failure to make any payment to AOL
required hereunder, and the cure period with respect to any
scheduled payment will be five(5) 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 (e.g., the service level response times set forth
in Section 5 of Exhibit E), either Party may terminate this
Agreement if the breach remains uncured after written notice
thereof to the other Party.
6.4. 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.
6.5. Termination on Change of Control In the event of (i) a Change of
Control of MP resulting in control of MP by an Interactive
Service or (ii) a Change of Control of AOL, AOL may terminate
this Agreement by providing thirty (30) days prior written
notice of such intent to terminate.
6.6. Termination for Failure to Create an Affiliated MP Site.
Notwithstanding anything to contrary contained herein, if MP
shall not have created an Affiliated MP Site which complies with
the provisions hereof (including, without limitation, Sections
2.2, 2.5, 2.6, 2.9, 2.11, and the provisions of Exhibit I
attached hereto) prior to August 31, 1998, AOL shall have the
right to immediately terminate this Agreement.
6.7. Early Termination Right. Notwithstanding anything to the
contrary contained herein, at any time prior to the Closing
Date, MP shall have the right to terminate this Agreement (the
"Termination Right") by providing AOL with no less than two (2)
days written notice thereof, provided that (i) upon exercise of
such Termination Right, MP shall pay to AOL a sum of One Million
Dollars (US $1,000,000) in lieu of the payments required
pursuant to Section 4.1 hereof, and (ii) at such time as AOL
shall exercise the AOL Option pursuant to Section 1.3 hereof, MP
shall no longer have the right to exercise the Termination
Right, and such right shall be void and of no further legal
effect.
7. MANAGEMENT COMMITTEE/ARBITRATION.
---------------------------------
7.1. 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
9
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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 to amicably 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. 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 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. The arbitration panel will consist of three (3) 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, will
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. 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. 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. 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 born equally by the Parties. Notwithstanding the
10
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foregoing, the arbitrators may modify the allocation of
Arbitration Costs and award Attorneys' Fees in those cases where
fairness dictates a different allocation of Arbitration Costs
between the Parties and an award of Attorneys' Fees to the
prevailing Party as determined by the arbitrators.
7.7. Any Dispute that is not subject to final resolution by the
Management Committee or to arbitration under this Section 6 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. 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.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
Effective Date.
AMERICA ONLINE, INC. DATAMARK HOLDING, INC., D/B/A DIGITAL
COURIER TECHNOLOGIES, INC.
By: By:
---------------------------------- ----------------------------------
Print Name: Print Name:
-------------------------- --------------------------
Title: Title:
------------------------------- -------------------------------
11
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EXHIBIT A
AOL Service Placement/Promotions
--------------------------------
Screen Description
------ -----------
- --------------------------- -------------------------------------------
Level I Promotions 100,000,000 Impressions
- --------------------------- -------------------------------------------
1 Entertainment Channel Permanent Anchor Tenant Placement;
- Home Video Main Premier Screen (launch scheduled for 8/98)
- --------------------------- -------------------------------------------
2 Families Channel - Permanent Anchor Tenant Placement;
Weekend Activities Premier Screen (launch scheduled for 8/98)
Main
- --------------------------- -------------------------------------------
3 Entertainment Channel, Premium Rotational Banners
Run of Channel
(Movies, TV, Video, etc.)
- --------------------------- -------------------------------------------
4 Network Programming Seasonal and Holiday Promotional
-Seasonal/Holiday Packages; Premium Rotational Banners
Contextual Packages
- --------------------------- -------------------------------------------
5 AOL Shopping Permanent Anchor Tenant Placement (will
Channel: Books,Music launch at next re-design, scheduled for 8/98)
Video Department
- --------------------------- -------------------------------------------
6 Aol Shopping Seasonal and Holiday Premium Rotational
Channel: Holiday Gift Banners
Programs
- --------------------------- -------------------------------------------
7 Digital Cities National Rotational placements-banners or
Page graphic/text intergration
- --------------------------- -------------------------------------------
8 DCI Main City Level Rotational placements-banners or
Page graphic/text intergration
- --------------------------- -------------------------------------------
9 Digital Cities-Movie Permanent Anchor Tenant
Guide
- --------------------------- -------------------------------------------
10 DCI Entertainment Main Rotational placements-banners or
Screens graphic/text intergration
- --------------------------- -------------------------------------------
11 DCI News Screens Rotational placements-banners or
graphic/text intergration
- --------------------------- -------------------------------------------
12 DCI Dining and Event Rotational placements-banners or
Guides graphic/text intergration
- --------------------------- -------------------------------------------
13 Sports, Lifestyles, Contextual Promotion and/or Rotational
Interests, Personal Banners
Finance, Health,
Computing, Travel,
Research & Learn,
Influence and Games
Channels: AOL Live
- --------------------------- -------------------------------------------
14 Three (3) AOL Service Three (3) permanent Keywords for
keywords, VideosNow brand
- --------------------------- -------------------------------------------
15 Other Comparable As determined by the Parties
Promotions
- --------------------------- -------------------------------------------
Level 2 Promotions 150,000,000 Impressions
- --------------------------- -------------------------------------------
1 People Connection: Rotational Banners in Contextually Relevant
Arts and Entertainment Chat
- --------------------------- -------------------------------------------
12
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- --------------------------- -------------------------------------------
2 Run of Service- Rotational Banners Targeted by Key
Demographically Demographic/Psychographic Variables
Targeted Banners
- --------------------------- -------------------------------------------
3 Entertainment Channel Rotational Banners
Newsletters
- --------------------------- -------------------------------------------
4 Other Comparable As determined by the Parties
Promtions
- --------------------------- -------------------------------------------
Level 3 Promotions 250,000,000 Impressions
- --------------------------- -------------------------------------------
1 Run of Service- Rotational Banners; Random Serving
General
- --------------------------- -------------------------------------------
2 Run of E-Mail- Rotational Banners
General
- --------------------------- -------------------------------------------
3 Additional Placements Rotational Banners
in People Connections
- --------------------------- -------------------------------------------
4 Other Comparable As determined by the Parties
Promotions
- --------------------------- -------------------------------------------
Annual Impressions Target
- --------------------------------------------------------------------------------
Year 1 100,000,000
- --------------------------------------------------------------------------------
Year 2 200,000,000
- --------------------------------------------------------------------------------
Year 3 200,000,000
- --------------------------------------------------------------------------------
TOTAL 500,000,000
- --------------------------------------------------------------------------------
13
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EXHIBIT A-1
AOL.com Promotions
------------------
- --------------------------- -------------------------------------------
Screen Description
- --------------------------- -------------------------------------------
Level 1 Promotions
- --------------------------- -------------------------------------------
AOL.com Shopping Permanent Anchor Tenant Placement (or
Channel: Books, Music equivalent in case of redesign)
Video Department (or
equivalent in case of
redesign
- --------------------------- -------------------------------------------
AOL.com movies, Contextual Placement and/or Rotational
Entertainment, other Promotion
channels
- --------------------------- -------------------------------------------
AOL.com Keyword Keywords to be determined
Package
- --------------------------- -------------------------------------------
Level 3 Promotions
- --------------------------- -------------------------------------------
AOL.com Run of Service
- --------------------------- -------------------------------------------
14
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EXHIBIT B
Definitions
-----------
The following definitions will apply to this Agreement:
Additional MP Channel. Any other distribution channel (e.g., an Interactive
Service other than AOL) through which MP makes available an offering comparable
in nature to the Affiliated MP Site.
Additional Revenues. Any revenues other than Transaction Revenues and
Advertising Revenues.
Advertising Revenues. The combination of AOL Advertising Revenues and Internet
Advertising Revenues:
AOL Advertising Revenues, Aggregate amounts collected plus the fair market value
of any other compensation received (such as barter advertising) by MP, AOL or
either Party's agents, as the case may be, arising from the license or sale of
advertisements, promotions, links or sponsorships ("Advertisements") that appear
within any pages of the Affiliated MP Site which may be exclusively available to
AOL Users, less applicable Advertising Sales Commissions. AOL Advertising
Revenues do not include amounts arising from Advertisements on any screens or
forms preceding, framing or otherwise directly associated with the Affiliated MP
Site, which will be sold exclusively by AOL.
Internet Advertising Revenues. For each Advertisement on a page of the
Affiliated MP Site which is not exclusively available to AOL Users, the product
of: (a) the amount collected plus the fair market value of any other
compensation received (such as barter advertising) by MP or its agents arising
from the license or sale of such Advertisement attributable to a given period of
time and (b) the quotient of (i) Impressions on the page containing such
Advertisement by AOL Users for such period of time divided by (ii) total
Impressions on the page containing such Advertisement by all users for such
period of time (the "Internet Advertising Quotient") (or such other percentage
or formula as is mutually agreed upon in writing by the Parties), less
applicable Advertising Sales Commissions. MP will be responsible for calculating
the Internet Advertising Quotient related to Internet Advertising Revenues. For
any period during which MP fails to calculate the Internet Advertising Quotient
(other than as a sole result of AOL's failure to provide necessary Impressions
information), such quotient will be deemed to be one hundred percent (100%).
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) fifteen percent (15%), in the event the Party has sold the
Advertisement directly and will not be deducting any third party agency
commissions.
Affiliated MP Site. The specific area created by MP to be promoted and
distributed by AOL hereunder through which MP can market and complete
transactions regarding its Products.
AOL Interactive Site. Any Interactive Site which is managed, maintained, owned
or controlled by AOL or its agents.
AOL Member. Any authorized user of the AOL Service, including any sub-accounts
using the AOL Service under an authorized master account.
AOL Network. (i) The AOL Service, (ii) AOL.com and (iii) 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). It is understood and agreed
that the rights of MP relate only to the AOL Service and not generally to the
AOL Network.
AOL Purchaser. (i) Any person or entity who enters the Affiliated MP 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 Revenues
(regardless of whether such person or entity provides an e-mail address during
15
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registration which includes a domain other than an "AOL.com" domain); and (ii)
any other person or entity who, when purchasing a product, good or service
through an MP Interactive Site, provides an AOL.com domain name as part of such
person or entity's e-mail address; 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 will also give
rise to Transaction Revenues 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(R)
brand service, specifically excluding (a) AOL.com or any other AOL Interactive
Site, (b) the international versions off the America Online(R) brand service
(e.g., AOL Japan), (c) "Driveway,""AOL NetFind(TM)" "AOL Instant Messenger(TM)",
"NetMail(TM)" or any similar independent product or service offered by or
through the U.S. version of the America Online brand service, (d) any
programming or Content area offered by or through the U.S. version of the
America Online 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), (e) any programming or Content
area offered by or through the U.S. version of the America Online brand service
which was operated, maintained or controlled by the former AOL Studios division
(e.g., Electra, Thrive, Real Fans, Love@AOL, Entertainment Asylum, Digital
Cities), (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 brand service, (g) any property, feature, product or
service which AOL or its affiliates may acquire subsequent to the Effective Date
and (h) any other version of an America Online service which is materially
different from the narrow-band U.S. version of the America Online brand service,
by virtue of its branding, distribution, functionality, Content and services,
including, without limitation, any co-branded version of the service and any
version distributed through any broadband distribution platform or through any
platform or device other than a desktop personal computer.
AOL User. Any user of the AOL Service, AOL.com or the AOL Network.
AOL.com. AOL's primary Internet-based Interactive Site marketed under the "AOL.
COMBAT" brand, specifically excluding (a) the AOL Service, (b) any international
versions of such site, (c) "Driveway," "AOL NetFind," "AOL Instant Messenger
"NetMail or any similar independent product or service offered by or through
such site or any other AOL Interactive Site, (d) 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), (e) any programming or Content
area offered by or through the U.S. version of the America Online) brand service
which was operated, maintained or controlled by the former AOL Studios division
(e.g., Electra, Thrive, Real Fans, Love@AOL, Entertainment Asylum, Digital
Cities), (f) 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, (g) any property, feature, product or service which
AOL or its affiliates may acquire subsequent to the Effective Date and (h) any
other version of an America Online Interactive Site which is materially
different from AOL's primary Internet-based Interactive Site marketed under the
"AOL.COM" brand, by virtue of its branding, distribution, functionality, Content
and 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.
Change of Control. (a) The consummation of a reorganization, merger or
consolidation or sale or other disposition of substantially all of the assets of
a party; 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.
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-MP customers, technical processes and formulas, source codes,
16
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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, (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 synchronization or timed relation with visual displays) and other data,
products, advertisements, promotions, links, pointers and software, including
any modifications, upgrades, updates, enhancements and related documentation.
Impression. User exposure to the applicable promotion or advertisement, as such
exposure may be reasonably determined and measured by AOL in accordance with its
standard methodologies and protocols.
Interactive Service. Any entity that offers online or Internet connectivity (or
any successor form of connectivity), aggregates (for sale or otherwise) and/or
distributes a broad selection of third-party Content, or provides interactive
navigational services (including, without limitation, any online service
providers, Internet service providers, WebTV, @Home or other broadband
providers, search or directory providers, "push" product providers such as the
Pointcast Network or providers of interactive navigational environments such as
Microsoft's "Active Desktop").
Interactive Site. Any interactive site or area, including, by way of example and
without limitation, (i) an MP 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.
Licensed Content. All Content offered through the Affiliated MP Site pursuant to
this Agreement or otherwise provided by MP 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.
MP Interactive Site. Any Interactive Site (other than the Affiliated MP Site)
which is managed, maintained, owned or controlled by MP or its agents.
Premier Products. Consumer movies and other consumer oriented video content
delivered in fixed media formats (including, without limitation, VHS cassettes,
digital video disks, DIVX and laserdiscs, ("Video Products"), specifically
excluding, however, (i) music audio entertainment products, (ii) any form of
computer software (e.g. games and entertainment programs) and (iii) any movie or
video content or other products distributed or delivered through an electronic
data transfer format.
Product. Any product, good or service which MP (or others acting on its behalf
or as distributors) offers, sells, provides, distributes or licenses to AOL
Users directly or indirectly through (i) the Affiliated MP Site (including
through any Interactive Site linked thereto), (ii) any other electronic means
directed at AOL Users (e.g., e-mail offers), or (iii) an "offline" means (e.g.,
toll-free number) for receiving orders related to specific offers within the
Affiliated MP 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).
Revenue Threshold. Aggregate Transaction Revenues and Advertising Revenues
generated hereunder equal to One Hundred Million Dollars (US$ 100,000,000).
Site Revenues. The combination of Transaction Revenues, Advertising Revenues and
Additional Revenues.
Transaction Revenues. 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, and excluding, in each case,
(a) amounts collected for sales or use taxes or duties and (b) credits and
chargebacks for returned or canceled goods or services, but not excluding cost
of goods sold or any similar cost.
17
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EXHIBIT C
MP Cross-Promotion
------------------
Online
- ------
In each MP Interactive Site, MP will include:
A prominent promotional banner linking to AOL-designated Content on AOL.com
or the AOL Service (if feasible) appearing "above the fold" on the first
screen of the MP Interactive Site:
A prominent "Try AOL" feature where users can obtain promotional information
about AOL products and services and, at AOL's option, download or order AOL's
then-current version of client software for the AOL Service or software for
any other AOL products or services (e.g., AOL's Instant Messenger service)*;
and
To the extent MP offers or promotes any products or services similar to AOL's
"component" products and services (e.g., "Driveway,""AOL NetFind "AOL Instant
Messenger" "NetMail" or any similar products or services, chat, buddy list
and/or message board technology, yellow pages, white pages, classifieds or
other search, directory or review services, voice communications), prominent
offers or promotions related to such AOL-designated products or services.
Additionally, MP shall make available to AOL remnant advertising inventory
which is available in any MP Interactive Site, on terms and conditions that
are no less favorable than those offered to any other third party.
Off line
--------
In MP's television, radio and print advertisements and in any publications,
programs, features or other forms of media over which MP exercises at least
partial editorial control, MP will include:
Specific references or mentions (verbally where possible) of the Affiliated
MP Site's availability through America Online prior to, and at least as
prominent as, any reference to any MP Interactive Site; and
For instance, listing of the "URL(s)" for any MP Interactive Site will be
accompanied by the AOL "keyword" for the Affiliated MP Site.
- -----------------------
*AOL will pay MP a one-time standard bounty for each person who registers for
the AOL Service using MP's special identifier for this promotion and
subsequently pays AOL monthly usage fees across at least three billing cycles
for the use of the AOL Service. Note that if this promotion is delivered through
Microsoft's Active Desktop or any other "push" product (an "Operating System"),
such feature will link users directly to AOL software within the Operating
System or direct users without Internet access to an AOL application setup
program within the Operating System (all subject to any standard policies of the
Operating System).
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EXHIBIT D
Description of Products and Other Content
-----------------------------------------
[MP TO PROVIDE]
19
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EXHIBIT E
Operating Standards
-------------------
1. General. The Affiliated MP Site and/or load testing will be related to
(including the Products and other the following areas AOL compatibility
Content contained therein) will be in testing (AOL client V3.0, Windows
the top three (3) online sites in the 95/Macintosh, Browser: MSIE 3.X/MSIE
video sale and rental industry, as 2.1; AOL client V4.0, Windows
determined by both of the following 95/Macintosh, Browser: MSIE 3.X);
methods: (a) based on a cross-section caching implementation; graphics
of third-party reviewers who are quality; user interface and functional
recognized authorities in such testing; review of advanced web
industry and (b) with respect to all technologies; load testing: website
material quality averages or standards architecture (hardware, network
in such industry, including each of configuration software - web servers,
the following: (i) pricing of databases, etc.); network redundancy
Products. (ii) scope and selection of and reliability: performance
Products, (iii) quality of Products, thresholds (network bandwidth, web
(iv) customer service and fulfillment server capacity, simultaneous users);
associated with the marketing and sale and electronic commerce (encryption
of Products and (v) ease of use. validation, encryption technology -SSL
V2/V3, PCT, commerce implementation
2. Hosting; Capacity. MP will provide review - cookies, iCat, webforce,
all computer hardware (e.g., servers, etc., facility physical security,
routers, network devices, switches and safeguards related to private customer
associated hardware) in an amount information.
necessary to meet anticipated traffic
demands, adequate power supply 4. User Interface. MP will maintain a
(including generator back-up) and graphical user interface within the
HVAC, adequate insurance, adequate Affiliated MP Site that is competitive
service contracts and all necessary in all material respects with
equipment racks, floor space, network interfaces of other similar sites
cabling and power distribution to based on similar form technology. AOL
support the Affiliated MP Site. MP is reserves the right to review and
fully responsible for the maintenance approve the user interface and site
implementation and the day-to-day design prior to launch of the
operation of the Affiliated Site and Promotions and to conduct focus group
MP will provide AOL with a detailed testing to assess compliance with
diagram of MP's network. In addition, respect to such consultation and with
MP will provide AOL with detailed respect to MP's compliance with the
information regarding separate file preceding sentence. With respect to
downloads available from the the foregoing, MP shall provide AOL
Affiliated MP Site, including file with no less than three (3) weeks
size, type and download/installation notice of the launch of the Affiliated
procedures. MP Site, so that AOL will have an
adequate amount of time to review the
3. Speed: Accessibility. MP will user interface of the Affiliated MP
ensure that the performance and Site and any other component of the
availability of the Affiliated MP Affiliated MP Site as AOL may
Site (a) is monitored on a continuous, reasonably request.
24/7 basis and (b) remains competitive
in all material respects with the 5. Service Level Response. MP agrees
performance and availability of other to use commercially reasonable efforts
similar sites based on similar form to provide the following service
technology. MP will use commercially levels in response to problems with or
reasonable efforts to ensure that: (a) improvements to the Affiliated MP
the functionality and features within Site: o For material functions of
the Affiliated MP Site are optimized software that are or have become
for the client software then in use by substantially inoperable (e.g.,
AOL Users: and (b) the Affiliated MP inability to access website or conduct
Site is designed and populated in a transactions), MP will provide a bug
manner that minimizes delays when AOL fix or workaround within four (4)
Users attempt to access such site. At hours after the first report of such
a minimum, MP will ensure that error to AOL or MP. o For functions of
Affiliated MID Site's data transfer the software that are impaired or
initiates within fewer than fifteen otherwise fail to operate in
(15) seconds on average. Prior to accordance with agreed upon
launch of any promotions described specifications (e.g., search engine),
herein, MP will permit AOL to conduct MP will provide a bug fix or
performance and/or load testing of the workaround within twenty-four (24)
Affiliated MP Site (in person or hours after the first report of such
through remote communications) until error to AOL or MP. o For errors
AOL is reasonably satisfied that disabling only certain non-essential
launch can occur. AOL's performance functions (e.g., broken links or
20
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noncritical applications), MP will 9. Technical Performance. MP will
provide a bug fix or workaround within perform the following technical
fourteen (14) days after the first obligations (and any reasonable
report of such error to AOL or MP. For updates thereto from time to time by
all other errors, MP will address AOL):
these requests on a case-by-case basis MP will design the Affiliated MP Site
as soon as reasonably feasible. to support the Windows version of the
Microsoft Internet Explorer 3.0 and
6. Monitoring. MP will provide AOL 4.0 Browser, the Macintosh version of
with MP's detailed escalation the Microsoft Internet Explorer 2.1
procedures (e.g., contact names and and 3.0, and make commercially
notification mechanisms such as email, reasonable efforts to support all
phone, page, etc.) and notification of other AOL browsers listed at "http:
any scheduled or unscheduled // webmaster. info. aol. com/
downtimes. AOL Network Operations BrowTable. html."
Center will work with MP's designated MP will configure the server from
technical contacts in the event of any which it serves the site to examine
performance malfunction or other the HTTP User-Agent field in order to
emergency related to the Affiliated identify the "AOL Member-Agents"
MP Site and will either assist or listed at: "http: // webmaster. info.
work in parallel with MP's contact aol. com/ Brow2Text. html."
using MP tools and procedures, as MP will design its site to support
applicable. The Parties will develop a HTTP 1.0 or later protocol as defined
process to monitor performance and in RFC 1945 (available at "http: //
member behavior with respect to ds. internic. net1rfc/rfc 1945.text")
access, capacity, security and related and to adhere to AOL's parameters for
issues both during normal operations refreshing cached information listed
and during special promotions/events. at "http: // webmaster. info. aol.
com/CacheText. html."
7. Telecommunications. The Parties 10. AOL Internet Products Partner
agree to explore encryption Support. AOL will provide MP with
methodology to secure data access to the standard online
communications between the resources, standards and guidelines
Parties'data centers such that no documentation, technical phone
private member information requested support, monitoring and after-hours
by MP will be transferred in an assistance that AOL makes generally
unencrypted format. The network available to similarly situated
between the Parties will be configured web-based partners on similar terms
such that no single component failure and conditions . AOL support will not,
will significantly impact AOL Users. in any case, be involved with content
The network will be sized such that no creation on behalf of MP or support
single line runs at more than seventy for any technologies, databases,
percent (70%) average utilization for software or other applications which
a 5-minute peak in a daily period. are not supported by AOL or are
related to any MP area other than the
8. Security Review. MP and AOL will Affiliated MP Site. Support to be
work together to perform an initial provided by AOL is contingent on MP
security review of, and to perform providing to AOL demo account
tests of, the MP system, network, and information (where applicable), a
service security in order to evaluate detailed description of the Affiliated
the security risks and provide MP Site's software, hardware and
recommendations to MP. including network architecture and access to the
periodic follow-up reviews as Affiliated MP site for purposes of
reasonably required by MP or AOL. MP such performance and load testing as
will use commercially reasonable best AOL elects to conduct.
efforts to fix any security risks or
breaches of security as may be
identified by AOL's Operations
Security team. Specific services to be
performed on behalf of AOL's
Operations Security team will be as
determined by AOL in its sole
discretion.
21
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EXHIBIT F
Standard Online Commerce Terms & Conditions
-------------------------------------------
1 . AOL Network Distribution. MP will transactions are solely between MP and
not authorize or permit any third AOL Users purchasing Products from MP.
party to distribute or promote the
Affiliated MP Site or any MP 6. AOL Look and Feel. MP acknowledges
Interactive Site through the AOL and agrees that AOL will own all
Network absent AOL's prior written right, title and interest in and to
approval. The Promotions and any other the elements of graphics, design,
promotional or advertising rights or organization, presentation, layout,
space purchased from or provided by user interlace, navigation and
AOL will link only to the Affiliated stylistic convention (including the
MP Site, will be used by MP solely for digital implementations thereof) which
its own benefit and will not be are generally associated with online
resold, traded, exchanged, bartered, areas contained within the AOLNetwork,
brokered or otherwise offered to any subject to MP's ownership rights in
third party any MP trademarks or copyrighted
material within the Affiliated MP
2. Provision of Other Content. In the Site.
event that AOL notifies MP that (i) as
reasonably determined by AOL, any 7. Management of the Affiliated MP
Content within the Affiliated MP Site Site. MP will manage. review, delete,
violates AOL's then applicable edit, create, update and otherwise
standard Terms of Service (as set manage all Products available on or
forth on the America Online brand through the Affiliated MP Site. in a
service), the terms of this Agreement timely and professional manner and in
or any other standard, written AOL accordance with the terms of this
policy or (ii) AOL reasonably objects Agreement. MP will ensure that each
to the inclusion of any Content within Affiliated MP Site is current,
the Affiliated MP Site (other than any accurate and well-organized at all
specific items of Content which may be times. MP warrants that the Products
expressly identified in this and other Licensed Content: (i) will
Agreement), then MP will take not infringe on or violate any
commercially reasonable steps to block copyright, trademark. U.S. patent or
access by AOL Users to such Content any other third party right, including
using MP's then-available technology. without limitation, any music
In the event that MP cannot, through performance or other music-related
its commercially reasonable efforts, rights; (ii) will not violate AOL's
block then MP will provide AOL prompt then-applicable Terms of Service: and
written notice of such fact.AOL may (iii) will not violate any applicable
then, at its option, restrict access law or regulation, including those
from the AOL Network to the Content in relating to contests, sweepstakes or
question using technology available to similar promotions. Additionally, MP
AOL, MP will cooperate with AOL's represents and warrants that it owns
reasonable requests to the extent AOL or has a valid license to all rights
elects to implement any such access to any Licensed Content used in AOL
restrictions. "slideshow" or other formats embodying
elements such as graphics, animation
3. Contests. MP will take all steps and sound, free and clear of all
necessary to ensure that any contest, encumbrances and without violating the
sweepstakes or similar promotion rights of any other person or entity.
conducted or promoted through the MP also warrants that a reasonable
Affiliated MP Site (a "Contest") basis exists for all Product
complies with all applicable federal, performance or comparison claims
state and local appearing through the Affiliated MP
Site. MP shall not in any manner,
4. Navigational Icons. Subject to the including, without limitation in any
prior consent of MP, which consent Promotion, the Licensed Content or the
will not be unreasonably withheld, AOL Materials state or imply that AOL
will be entitled to establish recommends or endorses MP or MP's
navigational icons, links and pointers Products (e.g., no statements that MP
connecting the Affiliated MP Site (or is an "official" or "preferred"
portions thereof) with other content provider of products or services for
areas on or outside of the AOL AOL). AOL will have no obligations
Network. with respect to the Products available
on or through the Affiliated MP Site,
5. Disclaimers. Upon AOL's request, MP including, but not limited to, any
agrees to include within the duty to review or monitor any such
Affiliated MP Site a product Products.
disclaimer (the specific form and
substance to be mutually agreed upon
by the Parties) indicating that
22
34434-3
8. Duty to Inform. MP will promptly estimated development schedule for
inform AOL of any information related such work. To the extent the Parties
to the Affiliated MP Site which could reach agreement regarding
reasonably lead to a claim, demand, or implementation of agreed-upon
liability of or against AOL and/or its Production Plan, such agreement will
affiliates by any third party. be reflected in a separate work order
signed by the Parties. To the extent
9. Customer Service. It is the sole MP elects to retain a third party
responsibility of MP to provide provider to perform any such
customer service to persons or production work, work produced by such
entities purchasing Products through third party provider must generally
the AOL Network ("Customers"). MP will conform to AOL's production Standards
bear full responsibility for all & Practices (a copy of which will be
customer service, including without supplied by AOL to MP upon request).
limitation, order processing, billing, The specific production resources
fulfillment, shipment, collection and which AOL allocates to any production
other customer service associated with work to be performed on behalf of MP
any Products offered, sold or licensed will be as determined by AOL in its
through the Affiliated MP Site, and sole discretion.
AOL will have no obligations
whatsoever with respect thereto. MP 11. Overhead Accounts. To the extent
will receive all emails from Customers AOL has granted MP any overhead
via a computer available to MP's accounts on the AOL Service, MP will
customer service staff and generally be responsible for the actions taken
respond to such emails within one under or through its overhead
business day of receipt. MP will accounts, which actions are subject to
receive all orders electronically and AOL's applicable Terms of Service and
generally process all orders within for any surcharges, including, without
one business day of receipt, provided limitation, all premium charges,
Products ordered are not advance order transaction charges, and any
items. MP will ensure that all orders applicable communication surcharges
of Products are received, processed, incurred by any overhead Account
fulfilled and delivered on a timely issued to MP, but MP will not be
and professional basis. MP will offer liable for charges incurred by any
AOL Users who purchase Products overhead account relating to AOL's
through such Affiliated MP Site a standard monthly usage fees and
money back satisfaction guarantee. MP standard hourly charges, which charges
will bear all responsibility for AOL will bear. Upon the termination of
compliance with federal, state and this Agreement, all overhead accounts,
local laws in the event that Products related screen names and any
are out of stock or are no longer associated usage credits or similar
available at the time an order is rights, will automatically terminate.
received. MP will also comply with the AOL will have no liability for loss of
requirements of any federal. state or any data or content related to the
local consumer protection or proper termination of any overhead
disclosure law. Payment for Products account.
will be collected by MP directly from
customers. MP's order fulfillment 12. Navigation Tools. To the extent
operation will be subject to AOL's AOL grants MP any "keywords" on the
reasonable review. AOL Service or "search terms" on
AOL.corn (collectively, "Keywords"),
10. Production Work. In the event that the Keywords will be subject to
MP requests AOL's production availability and will consist only of
assistance in connection with (i) MP's registered trademarks. AOL
ongoing programming and maintenance reserves the right at any time to
related to the Affiliated MP Site, revoke MP's use of any Keywords that
(ii) a redesign of or addition to the are not registered trademarks of MP.
Affiliated MP Site (e.g.. a change to To the extent AOL allows AOL Users to
an existing screen format or "bookmark" the URL or other locator
construction of a new custom form), for the Affiliated MP Site, such
(iii) production to modify work bookmarks will be subject to AOL's
performed by a third party provider or control at all times. Upon the
(iv) any other type of production termination of this Agreement, MP's
work, MP will work with AOL to develop rights to any Keywords and bookmarking
a detailed production plan for the will terminate.
requested production assistance (the
"Production Plan"). Following receipt 13. AOL User Communications. To the
of the final Production Plan, AOL will extent MP sends any form of
notify MP of (i) AOL's availability to communications to AOL Users, MP will
perform the requested production work, promote the Affiliated MP Site as the
(ii) the proposed fee or fee structure location at which to purchase Products
for the requested production and (as compared to any more general or
maintenance work and (iii) the other site or location). In addition,
23
34434-3
MP will not encourage AOL Users to
take any action inconsistent with the
scope and purpose of this Agreement.
including without limitation, the
following actions: (a) using Content
other than the Licensed Content; (b)
bookmarking of Interactive Sites; (c)
using Interactive Sites other than
those covered by the revenue-sharing
provisions herein; (d) changing the
default home page on the AOL browser:
or (e) using any Interactive Service
other than AOL. Any email newsletters
sent to AOL Users by MP or its agents
will (i) be subject to AOL's policies
on use of the email functionality,
including but not limited to AOL's
policy on unsolicited bulk email. (ii)
be sent only to AOL Users requesting
to receive such newsletters, (iii) not
contain Content which violates AOL's
Terms of Service. and (iv) not contain
any advertisements, marketing
or promotion for any other Interactive
Service. In any commercial e-mail
communications to AOL Users which are
otherwise permitted hereunder. MP will
provide the recipient with a prominent
and easy means to "opt-out" of
receiving any future commercial e-mail
communications from MP.
14. Merchant Certification Program MP
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 merchants status
as an AOL Certified Merchant.
24
34434-3
EXHIBIT G
Standard Legal Terms & Conditions
---------------------------------
1. Promotional Materials/Press the other Party. Each Party
Releases. Each Party will submit to acknowledges that its utilization of
the other Party, for its prior the other Party's Marks will not
written approval, which will not be create in it, nor will it represent
unreasonably withheld or delayed, any it has, any right, title, or
marketing, advertising. press interest in or to such Marks other
releases, and all other promotional than the licenses expressly granted
materials related to the Affiliated herein. Each Party agrees not to do
MP Site and/or referencing the other anything contesting or impairing the
Party and/or its trade names, trademark rights of the other Party.
trademarks. and service marks (the
"Materials"); provided, however, that 5. Quality Standards. Each Party
either Party's use of screen shots of agrees that the nature and quality
the Affiliated MP Site for of its products and services
promotional purposes will not require supplied in connection with the
the approval of the other Party so other Party's Marks will conform to
long as America Online is clearly quality standards set by the other
identified as the source of such Party. Each Party agrees to supply
screen shots; and provided further, the other Party, upon request. with
however, that, following the initial a reasonable number of samples of
public announcement of the business any Materials publicly disseminated
relationship between the Parties in by such Party which utilize the
accordance with the approval and other Party's Marks. Each Party will
other requirements contained herein, comply with all applicable laws,
either Party's subsequent factual regulations, and customs and obtain
reference to the existence of a any required government approvals
business relationship between the pertaining to use of the other
Parties will not require the approval Party's marks.
of the other Party. Each Party will
solicit and reasonably consider the 6. Infringement Proceedings. Each
views of the other Party in designing Party agrees to promptly notify the
and implementing such Materials. Once other Party of any unauthorized use
approved, the Materials may be used of the other Party's Marks of which
by a Party and its affiliates for the it has actual knowledge. Each Party
purpose of promoting the Affiliated will have the sole right and
MP Site and the content contained discretion to bring proceedings
therein and reused for such purpose alleging infringement of its Marks
until such approval is withdrawn with or unfair competition related
reasonable prior notice. In the event thereto; provided, however, that
such approval is withdrawn, existing each Party agrees to provide the
inventories of Materials may be other Party with its reasonable
depleted. Notwithstanding the cooperation and assistance with
foregoing, either Party may issue respect to any such infringement
press releases and other disclosures proceedings.
as required by law or as reasonably
advised by legal counsel without the 7. Representations and Warranties.
consent of the other Party and in, Each Party represents and warrants
such event, the disclosing Party will to the other Party that: (i) such
provide at least five (5) business Party has the full corporate right,
days prior written notice of such power and authority to enter into
proposed disclosure to the other this Agreement and to perform the
Party. acts required of it hereunder; (ii)
the execution of this Agreement by
2. License. MP hereby grants AOL a such Party, and the performance by
non-exclusive worldwide license to such Party of its obligations and
market, license, distribute, duties hereunder, do not and will
reproduce, display, perform, transmit not violate any agreement to which
and promote the Licensed Content (or such Party is a party or by which it
any portion thereof) through such is otherwise bound; (iii) when
areas or features of the AOL Network executed and delivered b such Party,
as AOL deems appropriate. MP this Agreement will constitute the
acknowledges and agrees that the legal, valid and binding obligation
foregoing license permits AOL to of such Party, enforceable against
distribute portions of the Licensed such Party in accordance with its
Content in synchronization or timed terms: and (iv) such Party
relation with visual displays acknowledges that the other Party
prepared by MP or AOL (e.g., as part makes no representations, warranties
of an AOL "slideshow"). In addition, or agreements related to the subject
AOL Users will have the right to matter hereof that are not expressly
access and use the Affiliated MP provided for in this Agreement.
Site.
8. Confidentiality. Each Party
3. Trademark License. In designing acknowledges that Confidential
and implementing the Materials and Information may be disclosed to the
subject to the other provisions other Party during the course of
contained herein, MP will be entitled this Agreement. Each Party agrees
to use the following trade names, that it will take reasonable steps,
trademarks, and service marks of AOL: at least substantially equivalent to
the "America Online" brand service, the steps it takes to protect its
"AOL" service/software and AOL's own proprietary information, during
triangle logo; and AOL and its the term of this Agreement, and for
affiliates will be entitled to use a period of three (3) years
the trade names, trademarks, and following expiration or termination
service marks of MP for which MP of this Agreement, to prevent the
holds all rights necessary for use in duplication or disclosure of
connection with this Agreement Confidential Information of the
(collectively, together with the AOL other Party, other than by or to its
marks listed above, the "Marks"); employees or agents who must have
provided that each Party: (i) does access to such Confidential
not create a unitary composite mark Information to perform such Party's
involving a Mark of the other Party obligations hereunder, who will each
without the prior written approval of agree to comply with this section.
such other Party; and (ii) displays Notwithstanding the foregoing,
symbols and notices clearly and either Party may issue a press
sufficiently indicating the trademark release or other disclosure
status and ownership of the other containing Confidential Information
Party's Marks in accordance with without the consent of the other
applicable trademark law and Party, to the extent such disclosure
practice. is required by law, rule, regulation
or government or court order. In
4. Ownership of Trademarks. Each such event, the disclosing Party
Party acknowledges the ownership of will provide at least five (5)
the other Party in the Marks of the business days prior written notice
other Party and agrees that all use of such proposed disclosure to the
of the other Party's Marks wi11 inure other Party. Further, in the event
to the benefit, and be on behalf, of such disclosure is required of
either Party under the laws, rules
or regulations of the Securities
24
34434-3
and Exchange Commission or any other 9.4. Claims. If a Party entitled to
applicable governing body, such Party indemnification hereunder (the
will (i) redact mutually agreedupon "Indemnified Party") becomes aware
portions of this Agreement to the of any matter it believes is
fullest extent permitted under indemnifiable hereunder involving
applicable laws, rules and any claim, action, suit,
regulations and (ii) submit a request investigation, arbitration or other
to such governing body that such proceeding against the Indemnified
portions and other provisions of this Party by any third party (each an
Agreement receive confidential "Action"), the Indemnified Party
treatment under the laws, rules and will give the other Party (the
regulations of the Securities and "Indemnifying Party") prompt written
Exchange Commission or otherwise be notice of such Action. Such notice
held in the strictest confidence to will (i) provide the basis on which
the fullest extent permitted under indemnification is being asserted
the laws, rules or regulations of any and (ii) be accompanied by copies of
other applicable governing body. all relevant pleadings, demands, and
other papers related to the Action
9. Limitation of Liability and in the possession of the
Disclaimer; Indemnification. Indemnified Party. The Indemnifying
Party will have a period of ten (10)
9.1. Liability. UNDER NO days after delivery of such notice
CIRCUMSTANCES WILL EITHER PARTY BE to respond. If the Indemnifying
LIABLE TO THE OTHER PARTY FOR Party elects to defend the Action or
INDIRECT, INCIDENTAL, CONSEQUENTIAL, does not respond within the
SPECIAL OR EXEMPLARY DAMAGES (EVEN IF requisite ten (10) day period, the
THAT PARTY HAS BEEN ADVISED OF THE Indemnifying Party will be obligated
POSSIBILITY OF SUCH DAMAGES), ARISING to defend the Action. at its own
FROM BREACH OF THE AGREEMENT, THE expense, and by counsel reasonably
SALE OF PRODUCTS, THE USE OR satisfactory to the Indemnified
INABILITY TO USE THE AOL NETWORK, THE Party. The Indemnified Party will
AOL SERVICE, AOL.COM OR THE cooperate, at the expense of the
AFFILIATED MP SITE, OR ARISING FROM Indemnifying Party, with the
ANY OTHER PROVISION OF THIS Indemnifying Party and its counsel
AGREEMENT, SUCH AS, BUT NOT LIMITED in the defense and the Indemnified
TO, LOSS OF REVENUE OR ANTICIPATED Party will have the right to
PROFITS OR LOST BUSINESS participate fully, at its own
(COLLECTIVELY, "DISCLAIMED DAMAGES"); expense, in the defense of such
PROVIDED THAT EACH PARTY WILL REMAIN Action. if the Indemnifying Party
LIABLE TO THE OTHER PARTY TO THE responds within the required ten
EXTENT ANY DISCLAIMED DAMAGES ARE (10) day period and elects not to
CLAIMED BY A THIRD PARTY AND ARE defend such Action, the Indemnified
SUBJECT TO INDEMNIFICATION PURSUANT Party will be free, without
TO SECTION 9.3. EXCEPT AS PROVIDED IN prejudice to any of the Indemnified
SECTION 9.3, (1) LIABILITY ARISING Party's rights hereunder, to
UNDER THIS AGREEMENT WILL BE LIMITED compromise or defend (and control
TO DIRECT, OBJECTIVELY MEASURABLE the defense of) such Action. In such
DAMAGES, AND (11) THE MAXIMUM case, the Indemnifying Party will
LIABILITY OF ONE PARTY TO THE OTHER cooperate, at its own expense, with
PARTY FOR ANY CLAIMS ARISING IN the Indemnified Party and its
CONNECTION WITH THIS AGREEMENT WILL counsel in the defense against such
NOT EXCEED THE AGGREGATE AMOUNT OF Action and the Indemnifying Party
PAYMENT OBLIGATIONS OWED TO THE OTHER will have the right to participate
PARTY HEREUNDER IN THE YEAR IN WHICH fully, at its own expense, in the
LIABILITY ACCRUES; PROVIDED THAT EACH defense of such Action. Any
PARTY WILL REMAIN LIABLE FOR THE compromise or settlement of an
AGGREGATE AMOUNT OF ANY PAYMENT Action will require the prior
OBLIGATIONS OWED TO THE OTHER PARTY written consent of both Parties
PURSUANT TO THE AGREEMENT. hereunder, such consent not to be
unreasonably withheld or delayed.
9.2. No Additional Warranties. EXCEPT
AS EXPRESSLY SET FORTH IN THIS 9.5. Acknowledgment. AOL and MP each
AGREEMENT, NEITHER PARTY MAKES ANY, acknowledges that the provisions of
AND EACH PARTY HEREBY SPECIFICALLY this Agreement were negotiated to
DISCLAIMS ANY REPRESENTATIONS OR reflect an informed, voluntary
WARRANTIES, EXPRESS OR IMPLIED, allocation between them of all risks
REGARDING THE AOL NETWORK, THE AOL (both known and unknown) associated
SERVICE, AOL.COM OR THE AFFILIATED MP with the transactions contemplated
SITE, INCLUDING ANY IMPLIED WARRANTY hereunder. The limitations and
OF MERCHANTABILITY OR FITNESS FOR A disclaimers related to warranties
PARTICULAR PURPOSE AND IMPLIED and liability contained in this
WARRANTIES ARISING FROM COURSE OF Agreement are intended to limit the
DEALING OR COURSE OF PERFORMANCE. circumstances and extent of
WITHOUT LIMITING THE GENERALITY OF liability. The provisions of this
THE FOREGOING, AOL SPECIFICALLY Section 9 will be enforceable
DISCLAIMS ANY WARRANTY REGARDING THE independent of and severable from
PROFITABILITY OF THE AFFILIATED MP any other enforceable or
SITE. unenforceable provision of this
Agreement.
9.3. Indemnity. Either Party will
defend, indemnity, save and hold 10. Solicitation of AOL Users.
harmless the other Party and the During the term of this Agreement,
officers ' directors, agents, and for the two-year period
affiliates, distributors, franchisees following the expiration or
and employees of the other Party from termination of this Agreement,
any and all third party claims, neither MP nor its agents will use
demands, liabilities, costs or the AOL Network to (i) solicit, or
expenses. including reasonable participate in the solicitation of
attorneys' fees ("Liabilities"), AOL Users when that solicitation is
resulting from the indemnifying for the benefit of any entity
Party's material breach of any duty. (including MP) which could
representation. or warranty of this reasonably be construed to be or
Agreement. become in competition with AOL or
(ii) promote any services which are
ancillary to the sale of MP's
Products hereunder or which could
reasonably be construed to be in
competition with AOL including, but
not limited to, services available
through the Internet. In addition,
MP may not send AOL Users email
communications promoting MP's
Products through the AOL Network
without a "Prior Business
Relationship." For purposes of this
Agreement, a "Prior Business
Relationship" will mean that the AOL
User has either (i) engaged in a
transaction with MP through the AOL
Network or (ii) voluntarily provided
information to MP through a contest,
registration, or other
communication, which included notice
to the AOL User that the information
provided by the AOL User could
result in an e-mail being sent to
that AOL User by MP or its agents. A
Prior Business Relationship does not
exist by virtue of an AOL User's
visit to the Affiliated MP Site
25
34434-3
or any MP Interactive Site (absent Agreement will be given in writing
the elements above). More generally, and will be deemed to have been
MP will be subject to any standard delivered and given for all purposes
policies regarding e-mail (i) on the delivery date if
distribution through the AOL Network delivered by electronic mail on the
which AOL may implement. AOL Network (to screenname
"AOLNotice@AOL.com" in the case of
11. Collection of User Information. AOL) or by confirmed facsimile. (ii)
MP is prohibited from collecting AOL on the delivery date if delivered
User screennames from public or personally to the Party to whom the
private areas within the AOL Service same is directed; (iii) one business
or AOL.com, except as specifically day after deposit with a commercial
provided below. MP will ensure that overnight carrier, with written
any survey, questionnaire or other verification of receipt; or (iv)
means of collecting User Information five business days after the mailing
including, without limitation, date, whether or not actually
requests directed to specific AOL received, if sent by U.S. mail,
User screennames or email addresses return receipt requested, postage
and automated methods of collecting and charges prepaid, or any other
screennames (an "Information means of rapid mail delivery for
Request") complies with (i) all which a receipt is available. In the
applicable laws and regulations, (ii) case of AOL, such notice will be
AOL's applicable Terms of Service. provided to both the Senior Vice
and (iii) any privacy policies which President for Business Affairs (fax
have been issued by AOL in writing no. 703-265-1206) and the Deputy
during the term (or, in the case of General Counsel (fax no.
the Affiliated MP Site, MP's standard 703-265-1105), each at the address
privacy policies, to the extent such of AOL set forth in the first
policies are prominently published on paragraph of this Agreement. In the
the site and provide adequate notice case of MP, except as otherwise
and disclosure to users regarding specifie herein, the notice address
MP's collection, use and disclosure will be the address for MP set forth
of any user information) in the first paragraph of this
(collectively, the "Applicable Agreement, with the other relevant
Privacy Policies"). Each Information notice information, including the
Request will clearly and recipient for notice and, as
conspicuously specify to the AOL applicable, such recipient's fax
Users at issue the purpose for which number or AOL e-mail address, to be
User Information collected through as reasonably identified by AOL.
the Information Request will be used
(the "Specified Purpose"). 16. Launch Dates. In the event that
any terms contained herein relate to
12. Use of User Information. MP will or depend on the commercial launch
restrict use of the User Information date of the Affiliated MP Site
collected through an Information contemplated by this Agreement (the
Request to the Specified Purpose. In 'Launch Date"), then it is the
no event will MP (i) provide User intention of the Parties to record
Information to any third party such Launch Date in a written
(except to the extent specifically instrument signed by both Parties
(a) permitted under the AOL Privacy promptly following such Launch Date;
Policies or (b) authorized by the provided that, in the absence of
members in question), (ii) rent, sell such a written instrument, the
or barter User Information, (iii) Launch Date will be as reasonably
identity, promote or otherwise determined by AOL based on the
disclose such User Information in a information available to AOL.
manner that identifies AOL Users as
end-users of the AOL Service, AOL.com 17. No Waiver. The failure of either
or the AOL Network or (iv) otherwise Party to insist upon or enforce
use any User Information in strict performance by the other
contravention of Section 10 above. Party of any provision of this
Notwithstanding the foregoing, in the Agreement or to exercise any right
case of AOL Members who purchase under this Agreement will not be
Products from MP, MP will be entitled construed as a waiver or
to use User Information from such AOL relinquishment to any extent of such
Members as part of MP's aggregate Party's right to assert or rely upon
list of customers; provided that MP's any such provision or right in that
use does not in any way identify, or any other instance; rather, the
promote or otherwise disclose such same will be and remain in full
User Information in a manner that force and effect.
identifies such AOL Members as
end-users of the AOL Service, 18. Return of Information. Upon the
AOL.corn or the AOL Network. In expiration or termination of this
addition, MP will not use any User Agreement. each Party will, upon the
Information for any purpose written request of the other Party,
(including any Specified Purpose) not return or destroy (at the option of
directly related to the business the Party receiving the request) all
purpose of the Affiliated MP Site. confidential information, documents,
manuals and other materials
13. Excuse. Neither Party will be specified the other Party.
liable for, or be considered in
breach of or default under this 19. Survival. Sections 8 through 29
Agreement on account of, any delay or of this Exhibit will survive the
failure to perform as required by completion, expiration, termination
this Agreement as a result of acts of or cancellation of this Agreement.
god, general telecommunications
outages, or any causes or conditions 20. Entire Agreement. This Agreement
which are beyond such Party's sets forth the entire agreement and
reasonable control and which such supersedes any and all prior
Party is unable to overcome by the agreements of the Parties with
exercise of reasonable diligence. respect to the transactions set
forth herein. Neither Party will be
14. Independent Contractors. The bound by, and each Party
Parties to this Agreement are specifically objects to. any term,
independent contractors. Neither condition or other provision which
Party is an agent, representative or is different from or in addition to
partner of the other Party. Neither the provisions of this Agreement
Party will have any right, power or (whether or not it would materially
authority to enter into any agreement alter this Agreement) and which is
for or on behalf of, or incur any proffered by the other Party in any
obligation or liability of, or to correspondence or other document,
otherwise bind, the other Party. This unless the Party to be bound thereby
Agreement will not be interpreted or specifically agrees to such
construed to create an association, provision in writing.
agency, joint venture or partnership
between the parties or to impose any 21. Amendment. No change, amendment
liability attributable to such a or modification of any provision of
relationship upon either Party. this Agreement will be valid unless
set forth in a written instrument
15. Notice. Any notice, approval, signed by the Party subject to
request. authorization, direction or enforcement of such amendment, and
other communication under this in the case of AOL, by an executive
of at least the same standing to the
executive who signed the Agreement.
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34434-3
22. 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.
23. Assignment. MP will not assign
this Agreement or any right, interest
or benefit under this Agreement
without the prior written consent of
AOL. Assumption of the Agreement by
any successor to MP (including,
without limitation, by way of merger
or consolidation) will be subject to
AOL's prior written approval. 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.
24. Construction: Severability. In
the event that any provision 7f 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.
25. 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, MP will
be not entitled to offset any amounts
that it claims to be due and payable
from AOL against amounts otherwise
payab!e by MP to AOL.
26. 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.
27. 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 app!icable
laws, regulations and rules unless
properly authorized.
28. 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.
29. 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
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34434-3
EXHIBIT H
To be provided by AOL
---------------------
28
34434-3
Confidential Draft
June 18, 1998
EXHIBIT I
29
34434-2
arbitrators may modify the allocation of Arbitration Costs and
award Attorneys' Fees in those cases where fairness dictates a
different allocation of Arbitration Costs between the Parties
and an award of Attorneys' Fees to the prevailing Party as
determined by the arbitrators.
7.7. Any Dispute that is not subject to final resolution by the
Management Committee or to arbitration under this Section 6 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. 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.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
as of the Effective Date.
AMERICA ONLINE, INC. DATAMARK HOLDING, INC., D/B/A DIGITAL
COURIER TECHNOLOGIES, INC
By: By:
------------------------------ ------------------------------
Print Name: Print Name:
---------------------- ----------------------
Title: Title:
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30
34434-3