Exhibit 10.10
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
EXECUTION COPY
CONFIDENTIAL
DISTRIBUTION AGREEMENT
This DISTRIBUTION AGREEMENT (this "AGREEMENT"), effective as of January
9, 2003 (the "EFFECTIVE DATE"), is made and entered into by and between America
Online, Inc. ("AOL"), a Delaware corporation, with its principal offices at
22000 AOL Way, Dulles, Virginia 20166, on the one hand, and Homestore, Inc.
("HS"), a Delaware corporation, with offices at 30700 Russell Ranch Road,
Westlake Village, California 91362, on the other hand. AOL and HS may be
referred to individually as a "PARTY" and collectively as the "PARTIES."
INTRODUCTION
AOL, RealSelect, Inc. and Homestore.com, Inc. (f/n/a NetSelect, Inc.)
entered into an interactive marketing relationship pursuant to that certain
Second Amended and Restated Interactive Marketing Agreement, effective as of
April 8, 1999 and executed by such parties in June, 1999 and that certain
Distribution Agreement, effective as of April 8, 1999 and executed by such
parties in June, 1999, each of which were terminated by the Parties pursuant to
the terms of the Existing Agreement, and that certain Distribution Agreement
effective as of April 25, 2000 (the "EXISTING AGREEMENT"). RealSelect, Inc. and
Homestore.com, Inc. are each predecessors-in-interest to HS. AOL and HS each
desire to expand and modify their existing relationship by terminating the
Existing Agreement and entering into a new mutually beneficial interactive
marketing relationship in accordance with the terms and conditions set forth in
this Agreement. Capitalized terms used but not otherwise defined in this
Agreement shall be as defined on Exhibit B, attached hereto and made a part
hereof.
TERMS
1. DISTRIBUTION; PROGRAMMING
1.1 PROMOTIONS ON HOME CHANNEL. AOL shall provide HS with the
Promotions set forth on Exhibit A, attached hereto and made a
part hereof (the "CARRIAGE PLAN"), including Promotions in a
home-and-real-estate-related channel or equivalent on the AOL
Service, Netscape.com, CompuServe and a
home-and-real-estate-related screen on Digital City
(collectively the "HOME CHANNEL"), as depicted for the AOL
Service in the screen shots attached hereto as Exhibit H,
which shall be subject to the provisions of Section 1.3.
Notwithstanding the foregoing, HS acknowledges that the screen
shots represent a new design for the Home Channel which has
not yet been built and which will not be fully launched until
approximately [*] (the "LAUNCH DATE"). In the event the new
Home Channel (or portions thereof) launches prior to the
Launch Date, the Carriage Plan shall be adjusted to reflect
the earlier availability of new Promotions (and the
discontinuation of old Promotions); provided, however, the
number of integrated Impressions and media Impressions
provided on the adjusted Carriage Plan shall be at least the
number of Impressions in the Integrated Placement Commitment
and Media Placement Commitment, respectively. In the event the
new Home Channel (or portions thereof)
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CONFIDENTIAL
launches after the Launch Date, the Carriage Plan shall be
adjusted to reflect the later availability of new Promotions
(and the continuation of old Promotions) and the Term shall be
extended (without additional payments by HS) by one day for
each day past the Launch Date that the new Home Channel fully
launches; provided that any delay in the Launch Date (or
portion thereof) which is caused by actions or omissions by
HS, or by factors outside the reasonable control of AOL, shall
not lead to an extension of the Term. The Promotions shall
link directly to the Customized Sites and/or Customized
Programming. Except to the extent expressly described herein,
the exact form, placement and nature of the Promotions shall
be determined by AOL in its reasonable editorial discretion.
Any changes to the Carriage Plan shall be made in writing and
signed by both Parties prior to implementation of such
changes.
1.2 IMPRESSIONS COMMITMENT. During the Term, AOL shall deliver at
least the number of Impressions set forth in the Carriage
Plan, from placement of HS Presences on the AOL Network, which
Impressions shall be integrated Impressions as set forth on
Exhibit A-1 (the "INTEGRATED PLACEMENT COMMITMENT") and media
Impressions as set forth on Exhibit A-2 (the "MEDIA PLACEMENT
Commitment"), in each case on the line entitled Integrated
Placement Commitment and Media Placement Commitment,
respectively, (or on the line entitled "Grand Total" in the
column entitled "Totals" on any replacement Carriage Plan
agreed to in writing by the Parties, if so designated). AOL
shall not be obligated to provide more Impressions than
provided for in the Carriage Plan.
1.2.1 In the event there is (or will be in AOL's reasonable
judgment) a shortfall in the Integrated Placement
Commitment as of the end of the Term (a "TERM
INTEGRATION SHORTFALL"), AOL shall provide HS, as its
sole remedy, at AOL' s option with either (a) an
extension of the Term of this Agreement until the
Term Integration Shortfall is remedied, or (b) a
refund calculated by multiplying the Term Integration
Shortfall by [*], or (c) some combination thereof. In
the event this Agreement is extended pursuant to this
Section 1.2.1, AOL shall not be required to deliver
any media Impressions if AOL met or exceeded the
Media Placement Commitment during the Term. In the
event there is (or will be in AOL's reasonable
judgment) a shortfall in the Media Placement
Commitment as of the end of the Term (a "TERM MEDIA
SHORTFALL"), AOL shall provide HS, as its sole
remedy, at AOL's option with either (a) Impressions
on the AOL Network which have a comparable overall
total value calculated based on the following
makegood ratios: [*] for [*] Impressions; [*] for [*]
Impressions; [*] for [*] Impressions; [*] for [*]
Impressions; [*] for [*] Impressions; and [*] for [*]
Impressions, so that a [*] Impression is assigned a
value of [*] times as much as a [*] impression (for
example, in the event there was a shortfall of 100
Impressions in [*] and AOL wished to makegood with
[*] Impressions, then AOL would multiply the number
of [*] Impressions (in this case 100 Impressions) by
[*] to calculate [*] Impression equivalent (in this
example, the equivalent would be [*] Impressions), or
(b) a refund of the value of the Term Media Shortfall
(calculated by multiplying the Term Media Shortfall
by [*]) , or (c) some combination thereof.
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1.2.2 The Impressions listed on each line item on the
Carriage Plan are for the purposes of calculating
refund values pursuant to Sections 1.2.1 and 1.4.1
only and do not represent guarantees or commitments
of Impressions to individual line items. Similarly,
Impressions listed in Year 1 and Year 2 columns in
any replacement Carriage Plan agreed to in writing by
the Parties (or any draft plan exchanged by the
parties at any time) do not represent annual
guarantees or commitments. AOL shall have no
obligation or responsibility with respect to
Impression delivery except to deliver the number of
Impressions specified on the lines entitled
Integrated Placement Commitment and Media Placement
Commitment (or on the line entitled "Grand Total" in
the column entitled "Totals" on any replacement
Carriage Plan agreed to in writing by the Parties, if
so designated) on each of Exhibit A-1 and Exhibit
A-2, or to remedy the failure to do so under Section
1.2 above. The foregoing notwithstanding, AOL shall
not be entitled to satisfy its Integrated Placement
Commitment by delivering more MapQuest Impressions
than the [*] Impressions shown on the Carriage Plan
unless otherwise mutually agreed by the Parties.
1.3 REDESIGNS AND MAKEGOODS. 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, or if AOL is unable to deliver
any particular Promotion for any other reason, AOL will
provide HS as soon as commercially reasonable, as its sole
remedy, a comparable promotional placement in a successor area
of the portion of the AOL Network that has been redesigned or
replaced, or other area that is substantially similar to the
redesigned or replaced area; provided, however, that in the
event such redesign or modification results in a substantial
redesign of the Home Channel, such redesigned or replaced Home
Channel is promoted as any other top level channel on the AOL
Service such as Careers, Travel and Health. AOL shall promptly
provide written notice to HS of (i) the proposed comparable or
alternative promotional placement(s), and (ii) the Promotion
or Promotions for which the proposed comparable promotional
placement is a substitute. Within thirty (30) days of AOL's
written notice, HS shall provide written notice to AOL of
either (i) its acceptance of the proposed promotional
placement as a substitute Promotion or (ii) its refusal of the
proposed comparable promotional placement, together with a
written statement of the reasons HS believes the proposed
placement is not a comparable promotional placement. HS's
failure to so respond within thirty (30) days shall be deemed
acceptance. HS's approval of a proposed comparable placement
shall not be unreasonably withheld. In no event will any
notice requirement, acceptance or rejection provided pursuant
to this Section 1.3 prohibit AOL from implementing any
proposed redesign or modification. In the event that HS
refuses a proposed comparable promotional placement offered by
AOL pursuant to this Section 1.3, HS and AOL shall attempt, in
good faith, to resolve the matter informally within fifteen
(15) days. In the event the Parties are unable to resolve the
matter informally, either Party may commence the arbitration
provisions of this Agreement; provided, however, that any such
dispute that is not presented to the Management Committee and,
if necessary, arbitration as provided in Section VII of
Exhibit D for final and binding resolution within ninety (90)
days of AOL's written notice of the proposed promotional
placement shall be waived by HS.
1.4 PROGRAMMING AND CONTENT.
1.4.1 CONTENT. The Promotions shall link only to the
Customized Programming or Customized Sites and shall
promote only the HS Services. The Customized Sites
and Customized Programming shall contain the Content
described on the
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Programming Plan, attached hereto as Exhibit C (the
"PROGRAMMING PLAN"), as such Programming Plan may be
updated from time to time by mutual agreement of the
Parties. HS shall have the right to include any of
its Content within the HS Services on the Customized
Sites and Customized Programming consistent with this
Agreement. Each Promotion shall link to a portion of
the Customized Programming or Customized Sites which
is contextually relevant to the page on which the
Promotion appears and the Content of the Promotion.
The inclusion of any Content that is not within the
HS Services shall be subject to AOL's prior written
approval, which approval shall not be unreasonably
withheld. HS shall provide Content that will meet the
objectives set forth in the Programming Plan, and, in
AOL's reasonable editorial discretion, such Content
shall be accurate, well-organized and professional
and shall comply with (i) AOL's technical
specifications set forth in Exhibit F, attached
hereto and made a part hereof, and any additional or
modified specifications made available to HS that AOL
deems necessary and appropriate from time to time
during the Term so long as AOL consistently requires
compliance with such standards from similarly
situated third parties, (ii) the terms of this
Agreement, and (iii) AOL's then-generally acceptable
policies relating to advertising and promotions (as
consistently applied to similarly situated third
parties and as have been made available to HS ).
Notwithstanding anything to the contrary in this
Agreement, HS shall ensure that any Content provided
by HS pursuant to this Agreement (including, without
limitation, the Promotions, the Customized Site, and
the Customized Programming) does not directly
promote, advertise, market or distribute the
products, services or content of any other
Interactive Service, and that neither the Promotions
nor the Customized Programming directly promotes,
advertises, markets or distributes any products or
services in any category in which AOL has an
exclusive relationship as identified on Exhibit I,
attached hereto and made a part hereof, as such list
may be amended by AOL from time to time; provided AOL
shall not amend Exhibit I to include any of the HS
Exclusive Services. In the event that the addition by
AOL of a category to Exhibit I requires HS to remove
an integrated element of Content from the Customized
Programming, the line item on the Carriage Plan
representing such Content, if any, shall be deemed
deleted from the Carriage Plan, AOL shall refund to
HS the value of the undelivered Impressions to such
line item(s) (calculated based on the applicable
value for the Impressions as set forth in Section 1.2
for Integrated Placements and Media Placements), and
the overall Integrated Placement Commitment and/or
Media Placement Commitment, as applicable, shall be
reduced by the number of Impressions for which a
refund was provided. In the event that the removal of
an integrated element of Content from the Customized
Programming requires an alteration to the design of
the Customized Programming, AOL shall discuss the
redesign of the particular portion of the Home
Channel affected by such alteration with HS. HS shall
host the following screens containing Customized
Programming until such time as AOL may elect to host
such screens: [*].
1.4.2 HS CONTENT AND SITE MANAGEMENT OBLIGATIONS. HS shall
design, create, edit, manage, review, update (as
reasonably determined by HS and no less frequently
than its Generally Available Sites are updated), and
maintain the Customized Sites, Customized Programming
and other Licensed Content in a timely and
professional manner and in accordance with the terms
of this Agreement and shall use commercially
reasonable efforts to keep the Licensed Content
current, accurate and well-organized at all times
during the Term. HS shall be responsible for any
hosting or communication costs associated with the
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Customized Sites and Customized Programming,
including, without limitation, the costs associated
with AOL's direct cost of any agreed-upon direct
connections between the AOL Network and the
Customized Sites or Customized Programming. The
Customized Programming shall have AOL Look and Feel,
consistent with the examples set forth in Exhibit H,
attached hereto, in all material respects.
AOL shall be entitled to revise the AOL Look and Feel
in its sole discretion; provided that, in the event
that AOL substantially changes the AOL Look and Feel
more than once every six (6) months during the Term,
AOL shall bear the costs and expenses associated with
any alterations or conversions to be made to the
Customized Programming for any additional substantial
changes to the AOL Look and Feel during the Term.
1.4.3 EQUALITY OF CONTENT. Subject to the other terms and
conditions of this Agreement, HS shall ensure that
the Licensed Content within the Customized Sites and
Customized Programming is substantially the same as
the Content then available on the comparable
Generally Available Sites in all material respects,
including without limitation, quality, breadth,
depth, timeliness, functionality, features, prices of
products and services and terms and conditions,
unless otherwise required by this Agreement (for
example, if Content, tools or functionality that HS
would be required to include to comply with this
sentence violates another provision of this
Agreement, HS shall not provide such Content, tools
or functionality on the Customized Sites or in the
Customized Programming). In the event HS enters into
an agreement to provide Content relevant to the HS
Services and not available on the Generally Available
Sites ("CUSTOM CONTENT") to any third party, HS shall
provide AOL the opportunity to obtain the Custom
Content on substantially the same terms as the third
party (including, without limitation, delivery of the
Custom Content to AOL at the same time the Custom
Content is delivered to the third party).
1.5 REGISTRATION. AOL Users shall not be subject to a
registration process (or any similar process) in
order to access and use the Customized Programming or
the Customized Sites unless otherwise mutually
agreed; provided, however, that AOL Users may be
subject to a registration process in order to use a
specialized tool or for specific opt-in features and
functionality of the Customized Sites. In the event
that registration is required to access and use the
Customized Sites, any registration or similar process
on the Customized Sites shall be no more burdensome
than any other registration or similar process on the
corresponding Generally Available Site. During the
Term and for the two (2) year period after the
expiration or termination thereof, HS shall allow AOL
Users to access and use a Generally Available Site on
terms and conditions no less favorable than the terms
and conditions generally available to other similarly
situated users of such Generally Available Site.
1.6 MEMBER BENEFITS. HS will promote through the
Customized Sites any special or promotional offers
made available by or on behalf of HS through any
Generally Available Site. The Parties shall work
together in good faith to promote, through the
Customized Sites and the AOL Network, special Content
exclusively available to AOL Users.
1.7 COMPLIANCE. In the event HS provides Content for the
Customized Programming and the Customized Sites that
fails to materially comply with Sections 1.4, 1.5,
2.5.1, 4.1, 4.2(a), 4.2(b), 4.2(c), or 4.3 of this
Agreement (a "MATERIAL NON-COMPLIANCE EVENT"), AOL
shall: (a) give email notice to HS of its
non-compliance specifying the nature of the Material
Non-Compliance Event and the location of the
non-complying Content (if applicable and to the
extent of AOL's knowledge of the location(s)); and
(b) have the
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immediate right (in addition to any other remedies
available to AOL hereunder) to (i) decrease the
promotion it provides to HS hereunder solely on
screens which include or provide a link to such
non-complying Content and/or (ii) remove carriage of
the Customized Programming and/or other Licensed
Content from the AOL Properties that are implicated
by such non-complying Content; in each case, until
such time as HS corrects its non-compliance. If HS
does not cure its non-compliance during a [*] ([*])
day period (or a [*] ([*]) day period in the event
that the non-compliance results from a modification
to technical requirements and cannot reasonably be
cured in [*] days) beginning the date on which AOL
gives HS notice of its non-compliance as provided in
subsection (a) hereof, AOL shall be relieved during
the period of such HS noncompliance only of the
proportionate amount of any promotional commitment
made to HS by AOL hereunder in accordance with any
decrease, cessation or removal of HS Content or
Promotions pursuant to the foregoing sentence.
2. CROSS-PROMOTION
2.1 COOPERATION. Each Party shall cooperate with and reasonably
assist the other Party in supplying material for marketing and
promotional activities.
2.2 HS PROMOTION OF CUSTOMIZED SITES AND AOL.
2.2.1 OFFLINE PROMOTION. As provided in Exhibit G, in its
offline promotions HS will promote AOL and will
promote the availability of the Customized Sites
through the AOL Network.
2.2.2 ONLINE PROMOTION. In the event that HS allows a third
party Interactive Service to purchase advertising for
placement on the Generally Available Sites as part of
a cooperative transaction whereby the parties thereto
trade products or services rather than cash, or as
part of an affiliate or bounty program, then HS will
provide AOL with the opportunity to purchase
comparable online promotion for the remaining Term of
this Agreement and on other terms and conditions that
are no less favorable than the proposed promotion
with the third party Interactive Service. HS shall
provide AOL with ten (10) days prior written notice
of its intent to enter into such transaction and
shall specify all material terms of such transaction
in the written notice (other than those terms which
HS is prohibited from disclosing under any
commercially reasonable nondisclosure agreement or
confidentiality provision that an Interactive Service
may have required prior to negotiating the
arrangements). In the event that AOL desires to
purchase the comparable promotions, AOL shall provide
HS written notice of its intent to participate within
five (5) days of HS' notice. Thereafter, the parties
will use their commercially reasonable good faith
efforts to enter into a definitive agreement for the
provision of such promotions. HS shall be free to
enter into an agreement with the third party on terms
no more favorable to the third party than those
contained in HS' notice. This section shall not apply
to those matters covered by Section 2.5.
2.3 AOL PROMOTION OF CUSTOMIZED SITES AND HS. At HS's request
during the Term, AOL shall discuss with HS opportunities to
include HS in AOL promotional materials to the extent AOL
includes any similarly situated partners in such materials.
The terms and
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conditions of any such promotion shall be determined by the
Parties at the time of such promotion.
2.4 AOL PARTICIPATION IN MARKETING OR PROMOTIONAL OPPORTUNITIES.
In the event that HS enters into any transaction to promote or
market the products or services of any third party Interactive
Service, HS shall provide AOL with the opportunity to promote
or market the products or services of AOL in a comparable
manner for the remainder of the Term of this Agreement and on
other terms and conditions that are no less favorable than the
proposed promotion of the products and services of the third
party Interactive Service. HS shall provide AOL with notice
ten (10) days after entering into any such transaction and
shall specify all material terms of such transaction in the
written notice (other than those terms which HS is prohibited
from disclosing under any commercially reasonable
nondisclosure agreement or confidentiality provision that the
Interactive Service may have required). In the event that AOL
desires to acquire comparable promotion or marketing from HS,
AOL shall provide HS written notice of its intent to
participate within five (5) days of HS' notice. Thereafter the
parties will use their commercially reasonable good faith
efforts to enter into a definitive agreement for the provision
of such promotions. In no event shall Section 2.4 and Section
2.2.2 prohibit or limit HS from entering into a distribution
agreement or carriage agreement with an Interactive Service
pursuant to which HS provides its content to such service even
if as an ancillary part thereof HS promotes or markets the
services of such Interactive Service. This Section shall not
apply to matters covered by Section 2.5.
2.5 USE OF AOL TOOLS
2.5.1 CUSTOMIZED SITES. In the event that HS chooses to
integrate any third party tools, technologies or
functionality, other than any instant messaging
product, on any Customized Site, and AOL provides
tools, technology or functionality that are
reasonably comparable to that available from such
third party, then HS shall negotiate in good faith
with AOL to determine terms and conditions for HS to
use AOL's tools prior to HS negotiating with any
third party regarding the same. Notwithstanding the
foregoing, in the event that HS chooses to integrate
any instant messaging tool on any Customized Site, HS
shall use, and AOL shall provide, "AOL Instant
Messenger(TM)" ("AIM") or alternate ---
AOL-designated instant messaging tool. In the event
that HS integrates one or more third party's tools,
technologies and functionality on any Customized Site
to the extent permitted in this Section 2.5.1, (i) HS
shall be prohibited from displaying any links to such
third party web site or other site displaying or
distributing such third party's tools, technologies
and functionality unless such links are to a
"cul-de-sac" site which (a) provides only the third
party tool's functionality without further links to
the third party's products or services and (b) has an
HS Look and Feel, and (ii) HS shall be prohibited
from displaying any branding for any third party
Interactive Service in connection with such tools,
technologies, or functionality; provided, however,
that in the event that HS chooses to display any
branding for any third party's tools, regardless of
whether such third party is an Interactive Service,
HS shall remove the third party's tools and branding
from the Customized Sites upon AOL's written notice
to HS requesting such removal.
2.5.2 LICENSE TO AOL TOOLS. To the extent AOL provides HS
with AOL Tools for inclusion on the Customized Sites,
AOL and HS shall enter into a license agreement, to
be mutually agreeable to both Parties, pursuant to
which AOL will license to HS such AOL Tools for use
on the Customized Sites, and upon mutual agreement of
the Parties, the Generally Available Sites, during
the Term. In the
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event that either Party seeks revenue from users of
the Customized Sites or the Generally Available Sites
for such AOL tools, the Parties shall negotiate in
good faith to determine the revenue share of any
revenues derived therefrom.
3. ADVERTISING AND MERCHANDISING
3.1 AOL NETWORK ADVERTISING INVENTORY. AOL owns all right, title
and interest in and to the advertising and promotional spaces
within the AOL Network including, without limitation, the
screens containing Customized Programming and, except to the
extent otherwise provided herein, shall have the right to all
revenues therefrom. The specific advertising inventory within
any AOL forms or pages shall be as determined by AOL. HS shall
reasonably assist AOL in serving ads to any screens containing
Customized Programming which are hosted by HS.
3.2 CUSTOMIZED SITE ADVERTISING INVENTORY. HS owns all right,
title and interest in and to the advertising and promotional
spaces on the Customized Sites and shall have the right to all
revenues therefrom.
3.3 INTERACTIVE COMMERCE. Subject to Section 1.4.1, HS shall have
the right to provide the HS Services and any other services
expressly permitted herein, and sell or offer for sale through
the Customized Sites and/or Customized Programming any
products, goods or services reasonably related to the HS
Services.
4. CUSTOMIZED PROGRAMMING AND CUSTOMIZED SITES
4.1 PRODUCTION; PERFORMANCE. HS shall write all Customized
Programming and design all Customized Sites for distribution
hereunder according to AOL's standard programming and
publishing specifications and guidelines and the Technical
Operating Standards, all as set forth on Exhibit F, and any
additional or modified specifications provided to HS that AOL
deems necessary and appropriate from time and time during the
Term so long as AOL requires compliance with such standards
from similarly situated third parties.
4.2 CUSTOMIZATION. In addition to any customization requirements
set forth elsewhere herein, HS shall customize all Customized
Programming and the Customized Sites for AOL Users as follows:
(a) HS shall co-brand each Customized Site, including a
Customized Site for Classifieds, in accordance with
AOL's specifications for such co-branding as they may
be modified and generally applicable to similarly
situated AOL partners from time to time, for each AOL
Property on which each Customized Site is promoted.
HS shall integrate tools, technologies and
functionality on any Customized Site in accordance
with the provisions of Section 2.5. AOL shall provide
a header and footer to HS for use on the Customized
Sites that is as wide as the Customized Sites
require.
(b) Notwithstanding anything to the contrary, HS shall
ensure that:
(i) the Customized Sites and Customized
Programming do not (a) directly promote,
advertise, market or distribute the
products, services or content of any other
Interactive Service, or (b) violate any
standard written AOL policy on advertising
or promotion made available to HS and as
generally
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applied (e.g., with respect to objectionable
content (e.g., illegal or illicit,
inappropriate for minors, etc.));
(ii) the Customized Programming does not directly
promote, advertise, market or distribute any
products or services in any category in
which AOL has an exclusive relationship in
accordance with the lists provided to HS
pursuant to Section 1.4.1; and
(iii) the Customized Programming will not use or
display any pop-up Advertising during the
Term, and no pop-up advertising will be
displayed to any AOL User on any page linked
to directly from Promotions or the
Customized Programming .
(c) HS shall host all pages of the Customized Sites under
a URL address co-branded with the applicable
Customized Site and AOL Property (e.g., aol.hs.com,
netscape.hs.com, etc.) in such a - - manner that HS
receives traffic credit for such pages. HS and/or AOL
shall host all pages of the Customized Programming
under a URL address co-branded with the applicable
Customized Site and AOL Property in such a manner
that AOL receives traffic credit for such pages
provided, however, that HS may elect to use a
different URL for pages of Customized Programming
hosted by HS so long as HS takes all necessary steps
to ensure that AOL receives traffic credit for all
pages of Customized Programming (e.g., without
limitation, by sending a letter to each of the
traffic reporting agencies stating that AOL shall
receive traffic credit for such pages).
(d) Upon the expiration or earlier termination of this
Agreement, unless the Parties otherwise agree, HS (i)
shall discontinue hosting the Customized Sites under
the co-branded domain name, and (ii) for a period of
twelve (12) months thereafter, host a jump page under
each such co-branded domain name. The design of such
jump page shall be mutually agreed to by the Parties.
The jump page shall be co-branded with each Party's
brands and shall contain prominent navigation to both
the Generally Available Site and an area(s) of the
AOL Network, or other Content area(s), selected by
AOL in its reasonable discretion and related in
subject matter to the Content contained on the
Customized Sites.
(e) Except for the customization requirements set forth
in this Section 4.2, HS reserves the right to
redesign or modify the organization, structure, "look
and feel," navigation and other elements of the
Customized Sites at any time. In the event such
modifications materially and adversely affect the
user interface of the Customized Sites, HS shall
promptly provide written notice to AOL of the
proposed modifications. Within thirty (30) days of
HS' written notice, AOL shall provide written notice
to HS of either (i) its acceptance of the proposed
modifications or (ii) its rejection of the proposed
modifications, together with a written statement of
the reasons AOL rejects the proposed modifications as
adversely affecting the user interface the Customized
Sites. AOL's failure to so respond within thirty (30)
days shall be deemed acceptance. AOL's approval of a
proposed modification shall not be unreasonably
withheld. In the event that AOL rejects a proposed
modification offered by HS pursuant to this Section
4.2(e), HS and AOL shall attempt, in good faith, to
resolve the matter informally within fifteen (15)
days. In the event the Parties are unable to resolve
the matter informally, either Party may commence the
arbitration provisions of this Agreement; provided,
however, that any such dispute that is not presented
to the Management Committee and, if necessary, to
arbitration pursuant to Section VII
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[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
9 CONFIDENTIAL
of Exhibit D for final and binding resolution within
ninety (90) days of HS' written notice of the
proposed modification shall be waived by AOL.
4.3 INTEGRITY OF AOL NETWORK. The Parties will work together on
mutually acceptable links (including links back to the AOL
Network) within the Customized Sites in order to create a
robust and engaging AOL member experience and the Customized
Sites may include reasonable editorial links that are
contextually related to the Content described on the
Programming Plan subject to the terms of this Agreement and
the following:
(a) HS shall use commercially reasonable efforts to
ensure that AOL traffic is generally either kept
within the Customized Sites or channeled back into
the AOL Network; provided that this paragraph (a)
shall not restrict HS' right and ability to (i) sell
Advertisements on the Customized Sites that link to
the advertiser's sites or (ii) link to third party
Content that is included on the Customized Site as
permitted under this Agreement.
(b) Except if and to the extent otherwise expressly set
forth herein with respect to the Customized
Programming, AOL will exercise complete control over
the navigation, design and layout of any screens,
forms or other Content on the AOL Network preceding
the Customized Sites.
5. EXCLUSIVITY
5.1 HS EXCLUSIVE SERVICES.
5.1.1 EXCLUSIVITY. Subject to the terms and conditions of
this Agreement, HS shall be the exclusive provider of
HS Exclusive Services that are directly promoted by
AOL or its Affiliates within the AOL Properties.
5.1.2 EXCEPTIONS. The provisions of Section 5.1.1 shall be
subject to the provisions of this Section 5.1.2.
(a) SINGLE BRAND LISTING SERVICES. With respect to any
Person who offers aggregated listings of real estate
properties under such Person's own brand with respect
to its own listings (e.g., - - Century 21, ERA or
Coldwell Banker, each with respect to its own
listings), AOL and its Affiliates shall have the
right to provide nonintegrated promotions (i.e.,
banner advertisements, buttons and text links) for
such Person and such Person's HS Exclusive Services;
provided, however, that (i) on the AOL Service, AOL
may only include one permanent non-integrated
promotion per screen (i.e., banner advertisements,
buttons and text links) for a single such Person
throughout the Home Channel at any one time (i.e.,
such promotion will be for the same Person throughout
the Home Channel), and (ii) on each of the other AOL
Properties, AOL may only include one permanent
non-integrated promotion (i.e., banner
advertisements, buttons and text links) for no more
than a total of two such unaffiliated Persons at any
one time within the Home Channel. AOL shall use
commercially reasonable efforts (including, without
limitation, with respect to existing and future
agreements) to ensure that any such Person's site
promoted on the AOL Properties does not link to HS
Exclusive Services offered by other third parties
(related or unrelated). If HS notifies AOL of such a
cross link to a third party HS Exclusive Service, AOL
shall work with the applicable advertiser to remove
such link in accordance with the terms of such
advertisers' agreement with AOL regarding such link.
10 CONFIDENTIAL
(b) OTHER LINES OF BUSINESS. In the event that
any Person providing HS Exclusive Services
provides products or services other than the
HS Exclusive Services, AOL and its
Affiliates shall not be restricted from
promoting such Person (on or off the AOL
Network), provided however that, except as
otherwise provided in this Section 5.1, AOL
and its Affiliates shall not directly
promote such Person's HS Exclusive Services
within the AOL Properties (e.g., AOL could
promote Classified Ventures' car listings
but not its realty listings).
(c) FSBOS. AOL and its Affiliates shall have the
right to promote for sale by owner listings
("FSBOS") on the AOL Properties provided,
however, AOL shall not promote a third party
which aggregates FSBOs as its primary
business (e.g., ForSaleByOwner.com). The
location of any integrated links for FSBOs
in the Home Channel shall be subject to HS's
consent, which consent shall be withheld
only if a proposed integrated link would
violate HS's contract with the National
Association of Realtors.
(d) CLASSIFIEDS. No provision of this Agreement
shall limit AOL's or its Affiliates' ability
(on or off the AOL Network) to continue to
promote and populate any classified listings
developed by AOL or one of its Affiliates
("CLASSIFIEDS") with other AOL or third
party aggregator listings in HS Apartments
Listings, or where AOL Users wish to
advertise themselves.
(e) CANADA. The exclusivity set forth in this
Section 5.1 shall not apply to the AOL
Canada Service with respect to HS Apartment
Listings.
(f) GENERAL EXCEPTIONS. Notwithstanding anything
to the contrary (and without limiting any
actions which may be taken by AOL without
violation of HS' rights hereunder), no
provision of this Agreement shall limit
AOL's right (on or off the AOL Network) to
do each of the following: (i) undertake
activities or perform duties pursuant to
those existing arrangements with third
parties; provided AOL shall not extend or
renew any such existing agreements or
commitments to the extent such agreements or
commitments could not otherwise be entered
into after the Effective Date; (ii) enter
into an arrangement with any third party for
the primary purpose of acquiring AOL Users
whereby such third party is allowed to
promote or market any or all HS Exclusive
Services on a limited basis solely to AOL
Users that are acquired as a result of such
agreement (but not to AOL Users acquired
through any other means); provided, however,
that in the event AOL enters into such an
arrangement with any of the Named Entities,
HS shall have the option to require that AOL
discontinue display of the Customized
Programming and the Customized Site solely
to AOL Users acquired as a result of such
agreement to the extent the product offering
made pursuant to AOL's agreement with the
Named Entity permits the Named Entity to
promote HS Exclusive Services; (iii) create,
distribute and display editorial commentary
relating to any third party provider of any
HS Exclusive Service generated by persons
unrelated to such third party; or (iv)
populate AOL's proprietary directories
(including without limitation AOL Yellow
Pages and Digital City directories) and any
locally-oriented search directories or
databases. With respect to clause (i) above,
to the best of the knowledge of AOL's senior
executives, there is no existing agreement
with a value in excess of Two Million
Dollars ($2,000,000) that authorizes a third
party to distribute HS Exclusive Services
through the AOL Properties.
5.2 BEST-OF-BREED EXCEPTION.
11 CONFIDENTIAL
5.2.1 IN GENERAL. Notwithstanding any other provision of this
Agreement (and without limiting any actions which may be taken
by AOL without violation of HS' rights hereunder), HS shall
provide HS Exclusive Services that comply with the following
"KEY INDICATORS": (a) the maintenance of at least [*] percent
([*]%) of the available listings of resale and, to the extent
listed on multiple listing services, new properties in the
United States carried by multiple listing services (excluding
any multiple listing service which prohibits all entities with
access to its listings from distributing its listings online);
(b) the maintenance of listings of apartments within [*]
Rental Properties, at least [*] percent ([*]%) of which shall
be spread across the top [*] ([*]) Metropolitan Statistical
Areas, as determined by the U.S. Bureau of the Census from
time to time, within the United States; and (c) HS's existing
agreement with the National Association of Realtors is still
in force and effect and has not terminated or otherwise
expired.
5.2.2 If at any time during the Term HS fails to meet either of the
Key Indicators set forth in Sections 5.2.1(a) or (b), such
failure shall be a material breach entitling AOL to invoke
Section 7.2 hereof. If at any time during the Term HS fails to
meet the Key Indicator set forth in Section 5.2.1(c), such
failure shall entitle AOL to invoke Section 7.3 hereof. HS
shall give written notice to AOL within five (5) days of the
date on which it fails to meet any of the Key Indicators at
any time during the Term. For the sole purpose of ensuring
compliance with the Key Indicators, AOL shall have the right,
to direct an independent certified public accounting firm
subject to strict confidentiality restrictions to conduct a
reasonable and necessary copying and inspection of HS'
records, contracts and other information that are related to
the Key Indicators. Any such audit may be conducted after
twenty (20) business days prior written notice. HS shall bear
the expense of such audit which determines that HS has failed
to meet a Key Indicator; AOL shall bear the expense for any
such audit which determines that HS not failed to meet a Key
Indicator.
5.2.3 REPRESENTATION. HS represents and warrants that, as of the
Effective Date and throughout the Term, HS shall be in
compliance with the Key Indicators.
6. REPORTING; PAYMENT; PAYMENT PROCEDURES; TAXES.
6.1 PAYMENT. As consideration for the services provided by AOL pursuant to
this Agreement, HS agrees to pay AOL Twenty-Two Million Five Hundred
Thousand Dollars ($22,500,000), with Three Million Seven Hundred Fifty
Thousand Dollars ($3,750,000) payable by wire transfer immediately upon
confirmation by Merrill Lynch that the letter of credit referred to in
Section 13.1.1 and related credit agreement have been terminated
pursuant to the terms of the side letter referred to in Sections 13.1.3
and 13.2.2 below ("LOC TERMINATION"), and the balance payable in five
equal quarterly installments due April 1, 2003, July 1, 2003, October
1, 2003, January 1, 2004, and April 1, 2004. In addition, as
consideration for termination of the Prior Agreements provided in
Section 11 below (including for advertising delivered through December
31, 2002 pursuant to the Existing Agreement) and the Settlement
Agreement and Release being delivered pursuant to Sections 13.1.2 and
13.2.1 below, HS shall pay AOL Seven Million Five Hundred Thousand
Dollars ($7,500,000) by wire transfer immediately upon LOC Termination.
All amounts not paid when due and payable shall bear interest from the
date such amounts are due and payable at the prime rate in effect at
such time.
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[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
12 CONFIDENTIAL
6.2 SALES REVENUE SHARE ON CUSTOMIZED SITES. HS shall be entitled
to retain [*] percent ([*]%) of the Sales Revenues collected
by HS or its agents or by any other Person with respect to the
Customized Sites.
6.3 PREFERRED PARTNER SHARE. As a preferred partner of AOL, HS
shall be entitled to receive the following shares (the
"CATEGORY SHARE") of online Sales Revenues on the AOL
Properties (excluding AOL Canada) in each calendar quarter as
follows:
(a) [*] percent ([*]%) of Sales Revenues collected by AOL
or its agents during such quarter from (i) sales of
Advertisements (excluding Advertisements for local
entities on Digital City, i.e., advertising targeted
at an audience within a single DMA) within the Home
Channel, and (ii) sales of Designated Products within
the Home Channel (excluding any Sales Revenues
derived from links to Shop@AOL and/or any other AOL
marketplace-type offering); and
(b) [*] percent ([*]%) of Sales Revenues collected by AOL
or its agents during such quarter from (i) sales of
Advertisements (excluding Advertisements for local
entities on Digital City, i.e., Advertisements
targeted at an audience within a single DMA) outside
of the Home Channel that are derived directly from
the HS Services and (b) sales of Designated Products
outside of the Home Channel (excluding any Sales
Revenues derived from Shop@AOL and/or any other AOL
marketplace-type offering).
AOL represents and warrants that, as of the Effective Date, no
AOL compensation policy creates disincentive for sales
personnel to sell Advertisements subject to the [*] percent
([*]%) revenue share above. In the event that AOL changes its
compensation policy at any time during the Term of this
Agreement which creates a disincentive for sales personnel to
sell Advertisements subject to the [*] percent ([*]%) revenue
share set forth in subsection (a) above, AOL shall (i)
implement an alternative means of ensuring that Advertisements
Revenue subject to the [*] percent ([*]%) revenue share set
forth in subsection (a) above are not disadvantaged, and (ii)
notify HS in writing of such change in AOL's compensation
policy, provided that the failure of AOL to provide notice to
HS shall not be deemed a material breach of this Agreement.
AOL shall pay to HS any amounts owed pursuant to this Section
6.3 within thirty (30) days after the end of each quarter
(including the last quarter of the Term). For purposes of
determining whether an Advertisement runs within or outside of
the Home Channel, the area inside the Home Channel shall be
deemed to include all screens on which the Home Channel header
(or any successor indicia of inclusion within a channel or
successor thereto) is included (e.g., the pets area to the
extent it resides on screen pages within the Home Channel
header shall be considered inside the Home Channel). In the
event there are no such indicia, the parties shall mutually
decide on a means for determining what is inside the Home
Channel.
6.4 SALES REFERRALS. Within 30 days of the Effective Date, HS may
provide to AOL a written list of Persons who offer aggregated
listings of real estate properties under such Person's own
brand with whom HS has a relationship and to whom AOL may wish
to sell
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[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
13 CONFIDENTIAL
Advertisements (the "HS LIST"). Within 30 days of receipt of
the HS List, AOL shall respond by informing HS in writing of
any entities on the HS list for which AOL wishes that HS
provide an introduction (the "AOL LIST"). If, during the
remainder of the Term, AOL sells Advertisements on the AOL
Properties to any Person on the AOL List for whom HS provided
an introduction, AOL shall pay HS an Advertising Sales
Commission of [*] percent ([*]%) of the net revenues collected
by AOL for such Advertisements. For the avoidance of doubt,
this provision shall not apply in any manner to any
Advertisements sold by any division of AOL Time Warner Inc.
other than AOL.
6.5 AOL USAGE REPORTING. AOL shall make available to HS a monthly
report on or before the 18th of each month specifying for the
prior calendar month Impressions and click-through with
respect to HS Presences on the AOL Network (other than the
Customized Programming), which are similar in substance and
form to the reports provided by AOL to other content partners
similar to HS.
6.5.1 AD SERVED IMPRESSIONS. Reports relating to
Impressions delivered to HS Presences which are
displayed on the AOL Network through AOL's ad serving
technology ("AD SERVED IMPRESSIONS") will tie on a
line-by-line basis to the Carriage Plan.
6.5.2 NON AD-SERVED IMPRESSIONS.
(a) AOL Service. Reports regarding the reporting periods
through February 28, 2003, to be reported on or
before March 18, 2003 as provided in Section 6.5,
relating to Impressions delivered to HS Presences
which are displayed on the AOL Service through
technology other than AOL's ad server ("NON-AD SERVED
IMPRESSIONS") will not automatically tie to the
Carriage Plan on a line-by-line basis. During this
time period, AOL will make good faith efforts to
manually provide to HS reports which correspond to
the line items in the Carriage Plan for the Non-Ad
Served Impressions on the AOL Service. Except as
provided in Section 6.5.2(c), reports regarding the
reporting periods beginning March 1, 2003, to be
reported on reports on or after April 18, 2003 as
provided in Section 6.5, relating to Non-Ad Served
Impressions on the AOL Service will tie to the
Carriage Plan on a line-by-line basis.
(b) Netscape.com, Compuserve and MapQuest. Reports
regarding the reporting periods ending January 31,
2003, to be reported on or before February 18, 2003
as provided in Section 6.5, relating to Non-Ad Served
Impressions on Netscape.com, Compuserve and MapQuest
will not automatically tie to the Carriage Plan on a
line-by-line basis. During this time period, AOL will
make good faith efforts to manually provide to HS
reports which correspond to the line items in the
Carriage Plan for the Non-Ad Served Impressions on
Netscape.com, Compuserve and MapQuest. Reports
regarding the reporting periods beginning February 1,
2003, to be reported on reports on or after March 18,
2003 as provided in Section 6.5, relating to Non-Ad
Served Impressions on Netscape.com, Compuserve and
MapQuest will tie to the Carriage Plan on a
line-by-line basis.
(c) Digital City, AOL Canada and AOL PF Items.
Reports relating to Non-Ad Served Impressions on
Digital City, AOL Canada and the two line items
entitled "PF - AOL - Real Estate Main - HTML Feed"
and "PF - AOL - Real Estate Mortgages - HTML Feed" in
the Carriage Plan will not tie to the Carriage Plan
on a line-by-line
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[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
14 CONFIDENTIAL
basis. AOL will make good faith efforts to manually
provide to HS reports which correspond to the line
items in the Carriage Plan for the Non-Ad Served
Impressions on Digital City and AOL Canada.
(d) Other Properties. The Carriage Plan attached hereto
as of the Effective Date does not anticipate Non-Ad
Served Impressions on portions of the AOL Network
other than those identified in subsections (a)
through (c) above. In the event that the Parties
modify the Carriage Plan to include Non-Ad Served
Impressions on additional portions of the AOL
Network, AOL will notify HS, upon HS's request,
whether the reports related to Non-Ad Served
Impressions in such additional locations will tie to
the Carriage Plan on a line-by-line basis. In cases
where the available reports will not tie to the
Carriage Plan on a line-by-line basis, AOL will make
good faith efforts to manually provide to HS reports
which correspond to the line items in the Carriage
Plan for the Non-Ad Served Impressions in the
affected areas.
6.5.3 MANUAL IMPLEMENTATION. HS acknowledges that even in
cases where technology enables reporting which ties
to the Carriage Plan on a line by line basis, certain
manual input is required to produce accurate reports,
and the complexity of the Carriage Plan [*]. [*]
shall not be a breach of this Agreement by AOL, [*].
In the event that HS believes that, [*], HS may
submit such concern to the Management Committee for
resolution solely by mutual agreement of the
Management Committee; provided, however, that this
sentence shall not adversely affect HS' rights to
receive the reports set forth in Section 6.5.4 and to
enforce its rights pursuant to Section 1.2.
6.5.4 THIRD PARTY AUDIT. The reports shall be based upon
reporting methodology which is audited regularly by
an independent third party chosen by AOL; provided,
however, that Digital City reporting shall not be
audited.
6.5.5 REPORTING EXPIRATION. HS shall have the right to
review any reports provided by AOL pursuant to this
Section 6.5 or Section 6.6. HS must notify AOL in
writing of anything other than an arithmetic error
contained in the reports to be provided by AOL
pursuant to this Section 6.5.5 or Section 6.6 within
thirty (30) days of HS's receipt of the report. Such
written notice must specify the alleged error. In the
event that HS notifies AOL of an alleged error by AOL
pursuant to this Section 6.5.5, HS and AOL shall
attempt, in good faith, to resolve the matter
informally within fifteen (15) days. In the event the
Parties are unable to resolve the matter informally,
either Party may commence the arbitration provisions
of this Agreement; provided, however, that any such
dispute that is not presented to the Management
Committee and, if necessary, arbitration as provided
in Section VII of Exhibit D for final and binding
resolution within ninety (90) days of HS's written
notice of the alleged error shall be waived by HS.
6.5.6 CLASSIFIEDS. AOL shall not provide any report of any
nature to HS regarding any Impressions delivered to
Classifieds.
6.6 CUSTOMIZED PROGRAMMING REPORTING. AOL shall make available to
HS a monthly report on or before the 18th of each month
specifying for the prior calendar month Impressions to the
Customized Programming, subject to cooperation from HS as set
forth in this Section 6.6, which are similar in substance and
form to the reports provided by
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[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
15 CONFIDENTIAL
AOL to other content partners similar to HS. AOL shall provide
to HS certain tags which HS shall embed in specified locations
on the pages of Customized Programming in strict accordance
with AOL's instructions. HS shall further provide AOL with a
monthly report on or before the 18th of each month specifying
for the prior calendar month Impressions to the Customized
Programming as tracked by HS. HS acknowledges and agrees that
the reports provided by AOL shall be the governing reports
under this Agreement for all purposes, and further
acknowledges that there will be discrepancies between the HS
reports and the AOL reports. However, AOL may elect to monitor
the discrepancies between the two reports as an indication of
whether the AOL tags have been properly installed on the
Customized Programming. In the event that HS fails to properly
install the tags in accordance with AOL's instructions, AOL
shall be relieved of its obligation to provide Impressions to
the portion of the Customized Programming where such tags have
been improperly installed. The provisions of Sections 6.5.3,
6.5.4 and 6.5.5. shall apply to this Section 6.6.
6.7 CUSTOMIZED SITES REPORTING. HS will supply AOL with monthly
reports which reflect total Impressions and aggregate usage by
AOL Visitors to the Customized Sites during the prior calendar
month and, to the extent permitted by law and HS' standard
privacy policy applicable to the Generally Available Sites,
any registration information obtained from AOL Visitors at the
Customized Sites during the period in question. HS shall
provide AOL with a written list of all URLs related to the
Customized Sites and HS shall update such list promptly upon
any change thereto. Such reports shall be in such format as
reasonably requested by AOL, consistent in substance and form
with the reports required from other interactive marketing
partners similar to HS, provided that, in the event that AOL
changes the form of its reports and the change in form causes
HS to suffer more than incremental costs, AOL shall pay the
amount of any excess costs over and above such incremental
costs.
6.8 ADVERTISING. AOL shall provide monthly detailed information to
HS regarding all Advertisements appearing on the Home Channel
and any Advertisements on any other portion of the AOL Network
for which a revenue share is payable to HS hereunder. In
reporting any Advertisements, AOL shall provide reasonably
sufficient detail to enable HS to confirm the accuracy of its
revenue share payments.
6.9 SALES REPORTS. With respect to sales of Designated Products by
AOL on the Home Channel with each payment, AOL shall provide
HS with a monthly report containing such information as is
reasonably required for measuring Transaction Revenue activity
through the AOL Network with respect to such Designated
Products. Such report may include, without limitation, the
following to the extent available to or practicable for the
Party providing such report: (i) summary sales information by
day (date, number of Designated Products, number of orders,
total Transaction Revenues); and (ii) detailed sales
information to the extent AOL tracks such information (e.g.,
order date/time stamp, purchaser name and screenname, SKU,
product description). HS shall be entitled to use the reports
in its business operations and to disclose information derived
from such reports in an aggregate form.
6.10 PAYMENT SCHEDULE. Except as otherwise specified herein, AOL
agrees to pay HS all amounts owed to HS as described herein on
a quarterly basis within thirty (30) days of the end of the
quarter in which such amounts were collected by AOL. The first
quarter for which payment is to be made shall (i) begin on the
first day of the month following the month of execution of
this Agreement and (ii) include the portion of the month of
execution following the Effective Date (unless this Agreement
was executed on the first
16 CONFIDENTIAL
day of a month, in which case the quarter shall be deemed to
begin on the first day of such month).
6.11 WIRED PAYMENTS. All payments by HS hereunder shall be paid in
immediately available, non-refundable U.S. funds wired to the
"America Online" account, Account Number [*] at [*], or such
other account of which AOL shall give HS written notice. In
the event of any questions regarding a payment made (or
expected to be made) by HS to AOL, AOL may contact [*].
6.12 TAXES. All payments provided in this Agreement are exclusive
of any sales, use, gross receipts, excise, import or export
value added or similar taxes or duties (the "TAXES"). HS shall
collect and pay and indemnify and hold AOL harmless from, any
Taxes arising from or related to the operation of the
Customized Sites and/or the sale of any products or services
by HS or its Affiliates and agents, including any penalties
and interest, as well as any costs associated with the
collection or withholding thereof, including attorneys' fees.
7. TERM; TERMINATION; REMEDIES
7.1 TERM. Unless earlier terminated or renewed, or extended, as
set forth herein, the Term of this Agreement shall commence on
the Effective Date and end on June 30, 2004 (the "TERM"). Upon
the expiration or earlier termination of this Agreement, AOL
may, at its discretion, for a period of up to [*] ([*]) days,
continue to promote one or more "pointers" or links from the
AOL Network to the Generally Available Sites and continue to
use HS' trade names, trademarks and service marks for such
purpose, and HS shall have no promotional payment or other
obligations of any kind to AOL during such [*] ([*]) day
period.
7.2 TERMINATION FOR BREACH. Either Party may terminate this
Agreement at any time in the event of a material breach by the
other Party which remains uncured after thirty (30) days
written notice thereof; provided, however, that the cure
period with respect to any scheduled payment shall be five (5)
days from the date such payment is due. In the event that AOL
elects to terminate this Agreement based upon a scheduled
payment which was not received by five (5) days after its due
date, HS shall continue to maintain the Customized Programming
and the Customized Sites in accordance with this Agreement for
a period of [*] ([*]) days after receipt of a termination
notice from AOL; provided, however, that in the event that
AOL's termination of this Agreement pursuant to this Section
7.2 occurs during the last calendar quarter of the Term, HS
shall continue to maintain the Customized Programming and the
Customized Sites in accordance with this Agreement until June
30, 2004.
7.3 TERMINATION BY AOL. AOL may terminate this Agreement
immediately upon the sending of written notice of such
termination to HS if at any time during the Term, HS fails to
meet the Key Indicator set forth in Section 5.2.1(c).
7.4 TERMINATION FOR BANKRUPTCY/INSOLVENCY. Either Party may
terminate this Agreement immediately following written notice
to the other Party if the other Party (i) becomes or is
declared insolvent or bankrupt, (ii) is the subject of any
proceeding related to its
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[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
17 CONFIDENTIAL
liquidation or insolvency (whether voluntary or involuntary)
which is not dismissed within ninety (90) calendar days after
it is initiated, (iii) makes an assignment for the benefit of
creditors, or (iv) admits in writing that it is unable to pay
its debts in the ordinary course.
7.5 TERMINATION AND RELEASE FOR CHANGE OF CONTROL. AOL may
terminate this Agreement by providing HS with thirty (30) days
prior written notice of such intent to terminate in the event
of a Change of Control of HS resulting in control of HS by any
of the following or one of its Affiliates: (a) [*]; (b) [*],
(c) [*], (d) any Internet connectivity services (e.g., an
Internet service provider) that received over $[*] in gross
revenues from the provision of Internet connectivity services
during its most recent fiscal annual reporting period; or (e)
any of the top [*] Interactive Sites or services featuring a
broad selection of aggregated third party interactive Content
or navigation thereto (e.g., Alta Vista, Lycos) as measured
based on "reach" (as measured by Media Metrix or its
successor).
8. PRESS RELEASES. In addition to the requirements of Exhibit D, each
Party will submit to the other Party, for its prior written approval,
any press release or any other public statement ("PRESS RELEASE")
regarding the transactions contemplated hereunder, which approval will
not be unreasonably withheld. Notwithstanding the foregoing, either
Party may issue Press Releases and other disclosures as required by
law, rule, regulation or court order or as reasonably advised by legal
counsel without the consent of the other Party and in such event, the
disclosing Party will provide at least five (5) business days prior
written notice of such disclosure unless a shorter period is required
by such law, rule, regulation or court order, in which case the
disclosing Party shall provide as much notice as possible. The failure
by one Party to obtain the prior written approval of the other Party
prior to issuing a Press Release (except as required by law, rule,
regulation or court order) shall be deemed a material breach of this
Agreement.
9. PERFORMANCE BY SUBSIDIARIES. To the extent this Agreement requires
performance by a subsidiary of AOL, AOL, in its capacity as stockholder
of such subsidiary, shall cause such subsidiary to perform in
accordance with this Agreement. To the extent this Agreement requires
performance by a subsidiary of Homestore, Homestore, in its capacity as
stockholder of such subsidiary, shall cause such subsidiary to perform
in accordance with this Agreement.
10. REPRESENTATION AND WARRANTY. HS represents and warrants that it is the
successor-in-interest of RealSelect, Inc. and Homestore.com, Inc. and
that it has the ability to terminate the Existing Agreement on behalf
of RealSelect, Inc. and Homestore.com, Inc.
11. TERMINATION OF PRIOR AGREEMENTS. Upon the execution hereof, subject to
the fulfillment of the conditions precedent set forth in Section 13,
except as expressly provided in this Section 11, the Parties hereby
terminate as of the Effective Date of this Agreement, the Existing
Agreement, that certain Securities Purchase Agreement (the "SECURITIES
PURCHASE AGREEMENT") and that certain Registration Rights Agreement,
each dated as of April 25, 2000, between AOL and HS (including HS's
predecessors-in-interest) (collectively, the "PRIOR AGREEMENTS") and,
upon such termination, such Prior Agreements shall have no further
force or effect, except as expressly provided in this Section 11.
Without limiting the foregoing, the Parties specifically acknowledge
and agree that as a result of the termination of the Prior Agreements
all contractual restrictions and/or limitations contained in the Prior
Agreements relating to AOL's disposition of any or all shares of HS
common stock previously acquired pursuant to the Prior Agreements are
terminated and are of no further force and effect, including, without
limitation, all restrictions or limitations set forth in Sections 3(c)
and 4 of the Securities Purchase Agreement. Promptly upon AOL's
request, HS shall instruct its transfer agent to issue new certificates
to AOL evidencing such
- ---------------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
18 CONFIDENTIAL
shares without restrictive legends against delivery of the old
certificates. Upon termination of the Prior Agreements, AOL shall be
entitled to no further issuances of shares pursuant to the Prior
Agreements and shall have no put rights or price guaranties or similar
arrangements for equity downside protection with respect to such
shares. The foregoing notwithstanding, the following provisions in the
Prior Agreements shall expressly survive the termination of the Prior
Agreements (or the termination of the Prior Agreements shall not effect
the matters set forth below): (i) any rights with respect to any
warrants or other equity of HS held by AOL, which rights do not arise
out the Prior Agreements; (ii) any rights of AOL to receive any amounts
available for drawing under the Letter of Credit (as defined in the
Existing Agreement) unless and until the side letter described in
Sections 13.1.3 and 13.2.3 is signed by all parties thereto and AOL has
been paid Ninety Million Dollars ($90,000,000) by Merrill Lynch; and
(iii) Sections IV, V, VI, and VII of Exhibit D to the Existing
Agreement and the following sections of Section VIII of Exhibit D to
the Existing Agreement: Auditing Rights (including audit rights with
respect to Sales Revenue for purposes of computing payments due under
the Existing Agreement pursuant to revenue sharing arrangements (and
the obligation to pay any additional amounts owed based on the results
of such audit)), Notice, Return of Information, Entire Agreement,
Amendment, Construction; Severability, Remedies, Headings, and
Applicable Law, but survival shall not apply to any provision in
Section 6.6 of the Existing Agreement .
12. STANDARD TERMS. All Exhibits and Schedules hereto (including the
Standard Legal Terms & Conditions set forth on Exhibit D) are each
hereby made a part of this Agreement.
13. CONDITIONS PRECEDENT.
13.1 The obligations of AOL under this Agreement are subject to the
fulfillment of each of the following conditions, any one or
more of which may be waived by AOL:
13.1.1 AOL has received the amount of Ninety Million Dollars
($90,000,000) drawn pursuant to that certain
Irrevocable Standby Letter of Credit No. 200020
issued by Merrill Lynch Bank USA ("MERRILL LYNCH"),
dated May 18, 2000, as partial consideration for the
termination of the Existing Agreement;
13.1.2 HS shall have delivered to AOL a Settlement Agreement
and Release in a form acceptable to AOL, executed by
its duly authorized representative;
13.1.3 HS shall have delivered to AOL a side letter among
Merrill Lynch , HS and AOL regarding the payment of
the Ninety Million Dollars ($90,000,000) to AOL
pursuant to Section 13.1.1 in a form acceptable to
AOL, executed by its duly authorized representative
and by a representative of Merrill Lynch.
13.1.4 HS shall have paid to AOL Eleven Million Two Hundred
Fifty Thousand Dollars ($11,250,000) upon LOC
Termination as provided in Section 6.1.
13.2 The obligations of HS under this Agreement are subject to the
fulfillment of each of the following conditions, any one or
more of which may be waived by HS:
13.2.1 AOL shall have delivered to HS a Settlement Agreement
and Release in a form acceptable to HS, executed by
its duly authorized representative;
13.2.2 AOL shall have delivered to HS a side letter among
Merrill Lynch Bank USA, HS and AOL regarding the
payment of the Ninety Million Dollars ($90,000,000)
to
19 CONFIDENTIAL
AOL pursuant to Section 13.1.1 in a form acceptable
to HS, executed by its duly authorized representative
and by a representative of Merrill Lynch.
14. THIRD PARTY BENEFICIARY. Notwithstanding any other provision of this
Agreement, the Parties agree that AOL Canada, Inc. is an express third
party beneficiary of this Agreement, with any rights and remedies
associated therewith.
15. EMPLOYEE OFFER. AOL shall make available to HS the special employee
membership offer outlined on Exhibit J attached hereto.
20 CONFIDENTIAL
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the Effective Date.
AMERICA ONLINE, INC. HOMESTORE, INC.
By: /s/ Joseph A. Ripp By: /s/ Allan P. Merrill
------------------------------------- ------------------------------
Print Name: Joseph A. Ripp Print Name: Allan P. Merrill
----------------------------- ----------------------
Title: Vice Chairman Title: EVP Corporate Development
---------------------------------- ---------------------------
Date: 01/09/03 Date: January 9, 2003
----------------------------------- ----------------------------
Tax ID/EIN#: 52-2284225
---------------------
21 CONFIDENTIAL
LIST OF EXHIBITS
Exhibit A Carriage Plan
Exhibit A-1 Integrated Placement
Exhibit A-2 Media Placement
Exhibit B Capitalized Terms
Exhibit C Programming Plan
Exhibit D Standard Legal Terms and Conditions
Exhibit E Intentionally Deleted
Exhibit F AOL Site Testing and Technical Operating Standards
Exhibit G Offline Promotion
Exhibit H Home Channel Screen Shots
Exhibit I AOL Exclusive Relationships
Exhibit J Homestore Employee Offer
22 CONFIDENTIAL
EXHIBIT A
CARRIAGE PLAN
CONFIDENTIAL
EXHIBIT A-1
INTEGRATED PLACEMENT COMMITMENT
AOL LOCAL FLIGHT TOTALS
COPY SIZE START END IMPRESSIONS
- ------------------------------------------------------------------------------------------------------------------------------------
AOL Local- Real Estate Main- Functional Integration 1 Functional Integration 1/15/2003 6/30/2004 [*]
AOL Local- Real Estate Main- Functional Integration 2 Functional Integration 1/15/2003 6/30/2004 [*]
AOL Local- Real Estate Main- Graphic w/ Link 1 Graphic/Photo 6/1/2003 6/30/2004 [*]
AOL Local- Real Estate Main- Graphic w/ Link 2 Graphic/Photo 1/15/2003 5/31/2003 [*]
AOL Local- Real Estate Main- Text Link 1 Text 1 1/15/2003 6/30/2004 [*]
AOL Local- Real Estate Main- Text Link 2 Text 1 1/15/2003 6/30/2004 [*]
AOL Local- Real Estate Main- Text Link 3 Text 1 1/15/2003 6/30/2004 [*]
AOL Local- Real Estate Main- Text Link 4 Text 1 1/15/2003 6/30/2004 [*]
AOL Local- Real Estate Main- Text Link 5 Text 1 1/15/2003 6/30/2004 [*]
RealEstate - Digital Cities - Featured Homes- Listings Feed Functional Integration 1/15/2003 6/30/2004 [*]
RealEstate - Digital Cities - Featured New Homes- Listings Feed Functional Integration 1/15/2003 6/30/2004 [*]
RealEstate - Digital Cities - Featured Apartments- Listings Feed Functional Integration 1/15/2003 6/30/2004 [*]
====================================================================================================================================
SUB TOTAL [*]
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
AOL LOCAL FLIGHT TOTALS
COPY SIZE START END IMPRESSIONS
- ------------------------------------------------------------------------------------------------------------------------------------
AOL- House & Home- Decorating subscreens- Text Link 1 Graphic with Text 1/15/2003 6/30/2004 [*]
AOL- House & Home- Decorating subscreens- Text Link 2 Graphic with Text 1/15/2003 5/31/2003 [*]
AOL- House & Home- Gardening subscreens- Text Link 3 Text 1 1/15/2003 6/30/2004 [*]
AOL- House & Home- Gardening subscreens- Text Link 4 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Home Improvement subscreens- Text Link 1 Text 1 1/15/2003 6/30/2004 [*]
AOL- House & Home- Home Improvement subscreens- Text Link 2 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Home Services- Functional Integration Functional Integration 1/15/2003 5/31/2003 [*]
AOL- House & Home- Home Services- Graphic w/ link Graphic with Text 1/15/2003 5/31/2003 [*]
AOL- House & Home- Home Services- Text Link 1 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Home Services- Text Link 2 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Home Services- Text Link 3 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Home Services- Text Link 4 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Home Services- Text Link 5 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Home Services- Text Link 6 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Home Services- Text Link 7 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Home Services- Text Link 8 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Home Services- Text Link 9 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate- Buying & Selling- Text Link-
navigation 1 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate- Buying & Selling- Text Link-
navigation 2 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate- Buying & Selling- Text Link 1 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate- Buying & Selling- Text Link 2 Text 1 1/15/2003 5/31/2003 [*]
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
AOL- House & Home- Real Estate- Buying & Selling- Text Link 3 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate- Buying & Selling- Text Link 4 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate- Buying & Selling- Text Link 5 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate- Buying & Selling- Text Link 6 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate- Buying & Selling- Text Link 7 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate- Buying & Selling- Anchor Tenant Other 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate- Buying & Selling- Functional
Integration Functional Integration 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate- Buying & Selling- Graphic w/Link Graphic with Text 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate- Moving- Functional Integraton Functional Integration 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate- Moving- Text Link Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate- Moving- Text Link- Navigation 1 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate- Moving- Text Link- Navigation 2 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate- Moving- Text Link- Navigation 3 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate- Moving- Text Link- Navigation 4 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate- Moving- Text Link- Navigation 5 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate- Neighborhoods- Text Link-
Navigation 6 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate- Neighborhoods- Text Link 1 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate- Neighborhoods- Text Link 2 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate- Neighborhoods- Text Link 3 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate- Renting- Text Link- navigation 1 Text 1 1/15/2003 5/31/2003 [*]
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
AOL- House & Home- Real Estate- Renting- Text Link- navigation 2 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate- Renting- Text Link- navigation 3 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate- Renting- Text Link- navigation 4 Text 1 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate Apartments- Anchor Tenant Other 1/15/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Apartments- Functional Integration 1 Functional Integration 1/15/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Apartments- Functional Integration 2 Functional Integration 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Apartments- Functional Integration 3 Functional Integration 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Apartments- Functional Integration 4 Functional Integration 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Apartments- Graphic Photo w/ Link 1 Graphic with Text 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Apartments- Graphic Photo w/ Link 2 Graphic with Text 1/15/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Apartments- Graphic Photo w/ Link 3 Graphic with Text 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Apartments- Text Link 1 Text 1 1/15/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Apartments- Text Link 2 Text 1 1/15/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Apartments- Text Link 3 Text 1 1/15/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Apartments- Text Link 4 Text 1 1/15/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Homes- Anchor Tenant Other 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Homes- Functional Integration 1 Functional Integration 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Homes- Functional Integration 2 Functional Integration 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Homes- Functional Integration 3 Functional Integration 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Homes- Graphic Photo w/Link 1 Graphic with Text 6/1/2003 6/30/2004 [*]
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
AOL- House & Home- Real Estate Homes- Graphic Photo w/Link 2 Graphic with Text 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Homes- Graphic Photo w/Link 3 Graphic with Text 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Homes- Text Link 1 Text 1 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Homes- Text Link 2 Text 1 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Homes- Text Link 3 Text 1 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Homes- Text Link 4 Text 1 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Homes- Text Link 5 Text 1 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Main- Graphic w/ Link 1 Graphic with Text 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate Main- Graphic w/ Link 2 Graphic with Text 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate Main- Text Link- navigation 1 Functional Integration 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate Main- Text Link- navigation 2 Functional Integration 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate Main- Text Link- navigation 3 Functional Integration 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate Main- Text Link- navigation 4 Functional Integration 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate Main- Text Link- navigation 5 Functional Integration 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate Main- Text Link- navigation 6 Functional Integration 1/15/2003 5/31/2003 [*]
AOL- House & Home- Real Estate Main- Text Link 1 Text 1 1/15/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Main- Text Link 2 Text 1 1/15/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Moving- Functional Integration 1 Functional Integration 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Moving- Functional Integration 2 Functional Integration 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Moving- Functional Integration 3 Functional Integration 6/1/2003 6/30/2004 [*]
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
AOL- House & Home- Real Estate Moving- Graphic w/ Link Graphic with Text 1/15/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Moving- Text Link 1 Text 1 1/15/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Moving- Text Link 2 Text 1 1/15/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Neighborhoods- Functional Integration 1 Functional Integration 1/15/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Neighborhoods- Functional Integration 2 Functional Integration 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Neighborhoods- Functional Integration 3 Functional Integration 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Neighborhoods-Anchor Tenant Other 1/15/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Neighborhoods-Graphic w/ Link 1 Graphic with Text 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Neighborhoods-Graphic w/ Link 2 Graphic with Text 1/15/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Neighborhoods-Graphic w/ Link 3 Graphic with Text 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Neighborhoods-Graphic w/ Link 4 Graphic with Text 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Neighborhoods-Text Link 1 Text 1 1/15/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Neighborhoods-Text Link 2 Text 1 1/15/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Neighborhoods-Text Link 3 Text 1 1/15/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Neighborhoods-Text Link 4 Text 1 1/15/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Senior Housing- Anchor Tenant Other 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Senior Housing- Functional Integration 1 Functional Integration 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Senior Housing- Functional Integration 2 Functional Integration 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Senior Housing- Functional Integration 3 Functional Integration 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Senior Housing- Graphic w/ Link 1 Graphic with Text 6/1/2003 6/30/2004 [*]
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
AOL- House & Home- Real Estate Senior Housing- Graphic w/ Link 2 Graphic with Text 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Senior Housing- Graphic w/ Link 3 Graphic with Text 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Senior Housing- Text Link 4 Text 1 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Senior Housing- Text Link 1 Text 1 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Senior Housing- Text Link 2 Text 1 6/1/2003 6/30/2004 [*]
AOL- House & Home- Real Estate Senior Housing- Text Link 3 Text 1 6/1/2003 6/30/2004 [*]
AOL- House & Home Main- Graphic w/Text Graphic with Text 1/15/2003 5/31/2003 [*]
AOL- House & Home Main- Text Link- navigation Functional Integration 1/15/2003 5/31/2003 [*]
House & Home - AOL - Decorating Category- Text or Graphic with Link Graphic with Text 1/15/2003 6/30/2004 [*]
House & Home - AOL - Gardening Main Functional Integration Functional Integration 1/15/2003 6/30/2004 [*]
House & Home - AOL - Gardening Subs Text 1 or Graphic Photo w/ Link Text 1 1/15/2003 6/30/2004 [*]
House & Home - AOL - Home Improvement Subs Text 1 or Graphic Photo
w/ Link Text 1 1/15/2003 6/30/2004 [*]
House & Home - AOL - Home Services Text Text 1 1/15/2003 6/30/2004 [*]
House & Home - AOL - Main- Anchor Tenant Other 1/15/2003 6/30/2004 [*]
House & Home - AOL - Main Functional Integration 1 Functional Integration 1/15/2003 6/30/2004 [*]
House & Home - AOL - Main Functional Integration 2 Functional Integration 6/1/2003 6/30/2004 [*]
House & Home - AOL - Main Text 1 Text 1 1/15/2003 6/30/2004 [*]
House & Home - AOL - Real Estate Center Main- Anchor Tenant Other 1/15/2003 6/30/2004 [*]
House & Home - AOL - Real Estate Center Main Functional Integration 1 Functional Integration 1/15/2003 6/30/2004 [*]
House & Home - AOL - Real Estate Center Main Functional Integration 2 Functional Integration 6/1/2003 6/30/2004 [*]
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
House & Home - AOL - Real Estate Center Main Functional Integration 3 Functional Integration 6/1/2003 6/30/2004 [*]
House & Home - AOL - Real Estate Center Main Graphic with Text Graphic with Text 6/1/2003 6/30/2004 [*]
House & Home - AOL - Real Estate Center Main Text Link 1 Text 1 1/15/2003 6/30/2004 [*]
House & Home - AOL - Real Estate Center Main Text Link 2 Text 1 1/15/2003 6/30/2004 [*]
House & Home - AOL - Real Estate Center Main Text Link 3 Text 1 1/15/2003 6/30/2004 [*]
House & Home - AOL - Real Estate Center Moving- Anchor Tenant Other 1/15/2003 6/30/2004 [*]
House & Home - AOL - Real Estate Center Moving Text Link 1 Text 1 1/15/2003 6/30/2004 [*]
House & Home - AOL - Real Estate Center Moving Text Link 2 Text 1 1/15/2003 6/30/2004 [*]
Personal Finance - AOL - Real Estate- Integrated Widget Functional Integration 1/15/2003 6/30/2004 [*]
Personal Finance - AOL - Real Estate Main- HTML Feed Functional Integration 1/15/2003 6/30/2004 [*]
Personal Finance - AOL - Real Estate Mortgages- HTML Feed Functional Integration 1/15/2003 6/30/2004 [*]
Personal Finance - AOL - Real Estate Mortgages- Integrated Widget Functional Integration 1/15/2003 6/30/2004 [*]
Personal Finance - AOL - Real Estate Mortgages Text 1 Text 1 1/15/2003 6/30/2004 [*]
====================================================================================================================================
SUB TOTAL [*]
CLASSIFIEDS FLIGHT TOTALS
COPY SIZE START END IMPRESSIONS
- ------------------------------------------------------------------------------------------------------------------------------------
AOL Classifieds- Real Estate Rentals- Listing Details Page-
Functional Integration 1/15/2003 6/30/2004 [*]
AOL Classifieds- Real Estate Rentals- Listing Details Page-
Functional Integration 1/15/2003 6/30/2004 [*]
AOL Classifieds- Real Estate Rentals- Listing Results Page-
Functional Integration 1/15/2003 6/30/2004 [*]
AOL Classifieds Plus- Real Estate Main- New Homes- Text Link 1/15/2003 6/30/2004 [*]
AOL Classifieds Plus- Real Estate Main- Realtor Home Sales- Text Link 1/15/2003 6/30/2004 [*]
====================================================================================================================================
CLASSIFIEDS FLAT FEE TOTAL [*]
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
COMPUSERVE FLIGHT TOTALS
COPY SIZE START END IMPRESSIONS
- ------------------------------------------------------------------------------------------------------------------------------------
Compuserve- Home & Real Estate- Decorating Main- Text Link Text 1 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Decorating Main- Text Link or Graphic Text 1 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Gardening Main- Text Link Text 1 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Gardening Main- Text Link or Graphic
w/ Link Text 1 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Home Improvement Main- Text Link Text 1 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Home Improvement Main- Text Link
or Graphic Text 1 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate- Buying & Selling-
Anchor Tenant Other 1/15/2003 5/31/2003 [*]
Compuserve- Home & Real Estate- Real Estate- Buying & Selling-
Functional Integration 1 Functional Integration 1/15/2003 5/31/2003 [*]
Compuserve- Home & Real Estate- Real Estate- Buying & Selling-
Functional Integration 2 Functional Integration 1/15/2003 5/31/2003 [*]
Compuserve- Home & Real Estate- Real Estate- Buying & Selling-
Functional Integration 3 Functional Integration 1/15/2003 5/31/2003 [*]
Compuserve- Home & Real Estate- Real Estate- Buying & Selling-
Graphic w/ link 1 Graphic with Text 1/15/2003 5/31/2003 [*]
Compuserve- Home & Real Estate- Real Estate- Buying & Selling-
Graphic w/ link 2 Graphic with Text 1/15/2003 5/31/2003 [*]
Compuserve- Home & Real Estate- Real Estate- Buying & Selling-
Text Link 1 Text 1 1/15/2003 5/31/2003 [*]
Compuserve- Home & Real Estate- Real Estate- Buying & Selling-
Text Link 2 Text 1 1/15/2003 5/31/2003 [*]
Compuserve- Home & Real Estate- Real Estate- Buying & Selling-
Text Link 3 Text 1 1/15/2003 5/31/2003 [*]
Compuserve- Home & Real Estate- Real Estate- Buying & Selling-
Text Link 4 Text 1 1/15/2003 5/31/2003 [*]
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
Compuserve- Home & Real Estate- Real Estate- Buying & Selling- Text Link 5 Text 1 1/15/2003 5/31/2003 [*]
Compuserve- Home & Real Estate- Real Estate Apartments- Anchor Tenant Other 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Apartments- Functional Integration 1 Functional Integration 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Apartments- Functional Integration 2 Functional Integration 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Apartments- Functional Integration 3 Functional Integration 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Apartments- Functional Integration 4 Functional Integration 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Apartments- Graphic w/ Link 1 Graphic with Text 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Apartments- Graphic w/ Link 2 Graphic with Text 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Apartments- Graphic w/ Link 3 Graphic with Text 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Apartments- Text Link 1 Text 1 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Apartments- Text Link 2 Text 1 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Apartments- Text Link 3 Text 1 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Apartments- Text Link 4 Text 1 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Homes- Anchor Tenant Other 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Homes- Functional Integration 1 Functional Integration 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Homes- Functional Integration 2 Functional Integration 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Homes- Functional Integration 3 Functional Integration 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Homes- Graphic w/ Link 1 Graphic with Text 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Homes- Graphic w/ Link 2 Graphic with Text 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Homes- Graphic w/ Link 3 Graphic with Text 1/15/2003 6/30/2004 [*]
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
Compuserve- Home & Real Estate- Real Estate Homes- Text Link 1 Text 1 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Homes- Text Link 2 Text 1 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Homes- Text Link 3 Text 1 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Homes- Text Link 4 Text 1 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Homes- Text Link 5 Text 1 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Main- Graphic w/ Link Graphic with Text 1/15/2003 5/31/2003 [*]
Compuserve- Home & Real Estate- Real Estate Moving- Functional Integration 1 Functional Integration 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Moving- Functional Integration 2 Functional Integration 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Moving- Functional Integration 3 Functional Integration 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Moving- Graphic w/ Link Graphic with Text 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Moving- Text Link 1 Text 1 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Moving- Text Link 2 Text 1 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Neighborhoods- Anchor Tenant Other 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Neighborhoods- Functional
Integration 1 Functional Integration 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Neighborhoods- Functional
Integration 2 Functional Integration 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Neighborhoods- Functional
Integration 3 Functional Integration 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Neighborhoods- Graphic w/ Link 1 Graphic with Text 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Neighborhoods- Graphic w/ Link 2 Graphic with Text 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Neighborhoods- Graphic w/ Link 3 Graphic with Text 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Neighborhoods- Graphic w/ Link 4 Graphic with Text 1/15/2003 6/30/2004 [*]
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
Compuserve- Home & Real Estate- Real Estate Neighborhoods- Text Link 1 Text 1 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Neighborhoods- Text Link 2 Text 1 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Neighborhoods- Text Link 3 Text 1 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Neighborhoods- Text Link 4 Text 1 1/15/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Senior Housing- Anchor Tenant Other 6/1/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Senior Housing- Functional
Integration 1 Functional Integration 6/1/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Senior Housing- Functional
Integration 2 Functional Integration 6/1/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Senior Housing- Functional
Integration 3 Functional Integration 6/1/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Senior Housing- Graphic w/ Link 1 Graphic with Text 6/1/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Senior Housing- Graphic w/ Link 2 Graphic with Text 6/1/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Senior Housing- Graphic w/ Link 3 Graphic with Text 6/1/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Senior Housing- Text Link 1 Text 1 6/1/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Senior Housing- Text Link 2 Text 1 6/1/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Senior Housing- Text Link 3 Text 1 6/1/2003 6/30/2004 [*]
Compuserve- Home & Real Estate- Real Estate Senior Housing- Text Link 4 Text 1 6/1/2003 6/30/2004 [*]
Compuserve- Home & Real Estate Main- Graphic w/ link Graphic with Text 1/15/2003 5/31/2003 [*]
Compuserve- Money & Business Banking Center- Tool Integration Functional Integration 1/15/2003 6/30/2004 [*]
Compuserve- Money & Business Lending Center- Tool Integration Functional Integration 1/15/2003 6/30/2004 [*]
Home & Real Estate- Compuserve - Gardening Main - Functional Integration Functional Integration 1/15/2003 6/30/2004 [*]
Home & Real Estate- Compuserve - Home Services- Text Link Text 1 1/15/2003 6/30/2004 [*]
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
Home & Real Estate- Compuserve - Real Estate Main- Anchor Tenant Other 1/15/2003 6/30/2004 [*]
Home & Real Estate- Compuserve - Real Estate Moving- Anchor Tenant Other 1/15/2003 6/30/2004 [*]
Home & Real Estate - Compuserve - Real Estate Home Finance- Graphic
Photo w/ Link Graphic with Text 6/1/2003 6/30/2004 [*]
Home & Real Estate - Compuserve - Real Estate Home Finance-
Text Link 1 Text 1 1/15/2003 6/30/2004 [*]
Home & Real Estate - Compuserve - Real Estate Home Finance-
Text Link 2 Text 1 1/15/2003 6/30/2004 [*]
Home & Real Estate - Compuserve - Real Estate Home Finance-
Text Link 3 Text 1 1/15/2003 6/30/2004 [*]
Home & Real Estate - Compuserve - Real Estate Home Finance-
Text Link 4 Text 1 1/15/2003 6/30/2004 [*]
Home & Real Estate - Compuserve - Real Estate Home Finance-
Text Link 5 Text 1 1/15/2003 6/30/2004 [*]
Home & Real Estate - Compuserve - Real Estate Home Finance-
Text Link 6 Text 1 1/15/2003 6/30/2004 [*]
Home & Real Estate - Compuserve - Real Estate Home Finance-
Text Link 7 Text 1 1/15/2003 6/30/2004 [*]
Home & Real Estate - Compuserve - Real Estate Home Finance - Functional
Integration 1 Functional Integration 1/15/2003 6/30/2004 [*]
Home & Real Estate - Compuserve - Real Estate Home Finance -
Functional Integration 2 Functional Integration 1/15/2003 6/1/2003 [*]
Home & Real Estate - Compuserve - Real Estate Main- Functional
Integration- Navigation Functional Integration 1/15/2003 6/30/2004 [*]
Home & Real Estate - Compuserve - Real Estate Main-
Functional Integration 1 Functional Integration 1/15/2003 6/30/2004 [*]
Home & Real Estate - Compuserve - Real Estate Main-
Functional Integration 2 Functional Integration 1/15/2003 6/30/2004 [*]
Home & Real Estate - Compuserve - Real Estate Main-
Graphic Photo w/ Link Graphic with Text 6/1/2003 6/30/2004 [*]
Home & Real Estate - Compuserve - Real Estate Main- Text Link 1 Text 1 1/15/2003 6/30/2004 [*]
Home & Real Estate - Compuserve - Real Estate Main- Text Link 2 Text 1 1/15/2003 6/30/2004 [*]
Home & Real Estate - Compuserve - Real Estate Moving Text Link 1 Text 1 1/15/2003 6/30/2004 [*]
Home & Real Estate - Compuserve - Real Estate Moving Text Link 2 Text 1 1/15/2003 6/30/2004 [*]
Home & Real Estate Main - Compuserve - Functional Integration 1 Functional Integration 1/15/2003 6/30/2004 [*]
Home & Real Estate Main - Compuserve - Functional Integration 2 Functional Integration 1/15/2003 6/30/2004 [*]
Home & Real Estate Main - Compuserve - Text Link Text 1 1/15/2003 6/30/2004 [*]
====================================================================================================================================
SUB TOTAL [*]
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
INTERNATIONAL FLIGHT TOTALS
COPY SIZE START END IMPRESSIONS
- ------------------------------------------------------------------------------------------------------------------------------------
AOL.ca Targeted Search Terms 468x60 1/15/2003 6/30/2004 [*]
====================================================================================================================================
CANADA FLAT FEE
TOTAL [*]
MAPQUEST FLIGHT TOTALS
COPY SIZE START END IMPRESSIONS
- ------------------------------------------------------------------------------------------------------------------------------------
Driving Directions - MapQuest - Results Graphic with Text Graphic with Text 2/1/2003 6/30/2004 [*]
====================================================================================================================================
SUB TOTAL [*]
NETSCAPE FLIGHT TOTALS
COPY SIZE START END IMPRESSIONS
- ------------------------------------------------------------------------------------------------------------------------------------
Home & Real Estate - Netscape - Gardening Main- Functional Integration Functional Integration 1/15/2003 6/30/2004 [*]
Home & Real Estate - Netscape - Home Services- Text Link Text 1 1/15/2003 6/30/2004 [*]
Home & Real Estate - Netscape - Real Estate Main- Anchor Tenant Other 1/15/2003 6/30/2004 [*]
Home & Real Estate - Netscape - Real Estate Main- Functional
Integration- Navigation Functional Integration 1/15/2003 6/30/2004 [*]
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
Home & Real Estate - Netscape - Real Estate Main- Functional Integration 1 Functional Integration 1/15/2003 6/30/2004 [*]
Home & Real Estate - Netscape - Real Estate Main- Functional Integration 2 Functional Integration 1/15/2003 6/30/2004 [*]
Home & Real Estate - Netscape - Real Estate Main- Graphic Photo with Link Graphic with Text 6/1/2003 6/30/2004 [*]
Home & Real Estate - Netscape - Real Estate Main- Text Link 1 Text 1 1/15/2003 6/30/2004 [*]
Home & Real Estate - Netscape - Real Estate Main- Text Link 2 Text 1 1/15/2003 6/30/2004 [*]
Home & Real Estate - Netscape - Real Estate Moving- Anchor Tenant Other 1/15/2003 6/30/2004 [*]
Home & Real Estate - Netscape - Real Estate Moving- Text Link 1 Text 1 1/15/2003 6/30/2004 [*]
Home & Real Estate - Netscape - Real Estate Moving- Text Link 2 Text 1 1/15/2003 6/30/2004 [*]
Home & Real Estate Main- Netscape - Text Link Text 1 1/15/2003 6/30/2004 [*]
Home & Real Estate Main - Netscape - Functional Integration 1 Functional Integration 1/15/2003 6/30/2004 [*]
Home & Real Estate Main - Netscape - Functional Integration 2 Functional Integration 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Decorating Main- Text Link Text 1 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Decorating Main- Text Link or Graphic Text 1 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Gardening Main- Text Link Text 1 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Gardening Main- Text Link or Graphic Text 1 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Home Improvement Main- Text Link Text 1 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Home Improvement Main- Text Link or Graphic Text 1 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate- Buying & Selling- Anchor Tenant Other 1/15/2003 5/31/2003 [*]
Netscape- Home & Real Estate- Real Estate- Buying & Selling- Functional
Integration 1 Functional Integration 1/15/2003 5/31/2003 [*]
Netscape- Home & Real Estate- Real Estate- Buying & Selling- Functional
Integration 2 Functional Integration 1/15/2003 5/31/2003 [*]
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
Netscape- Home & Real Estate- Real Estate- Buying & Selling- Functional
Integration 3 Functional Integration 1/15/2003 5/31/2003 [*]
Netscape- Home & Real Estate- Real Estate- Buying & Selling- Graphic w/ Link 1 Graphic with Text 1/15/2003 5/31/2003 [*]
Netscape- Home & Real Estate- Real Estate- Buying & Selling- Graphic w/ Link 2 Graphic with Text 1/15/2003 5/31/2003 [*]
Netscape- Home & Real Estate- Real Estate- Buying & Selling- Text Link 1 Text 1 1/15/2003 5/31/2003 [*]
Netscape- Home & Real Estate- Real Estate- Buying & Selling- Text Link 2 Text 1 1/15/2003 5/31/2003 [*]
Netscape- Home & Real Estate- Real Estate- Buying & Selling- Text Link 3 Text 1 1/15/2003 5/31/2003 [*]
Netscape- Home & Real Estate- Real Estate- Buying & Selling- Text Link 4 Text 1 1/15/2003 5/31/2003 [*]
Netscape- Home & Real Estate- Real Estate- Buying & Selling- Text Link 5 Text 1 1/15/2003 5/31/2003 [*]
Netscape- Home & Real Estate- Real Estate Apartments- Functional Integration 1 Functional Integration 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Apartments- Functional Integration 2 Functional Integration 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Apartments- Functional Integration 3 Functional Integration 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Apartments- Functional Integration 4 Functional Integration 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Apartments- Graphic w/ link 1 Graphic with Text 6/1/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Apartments- Graphic w/ link 2 Graphic with Text 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Apartments- Graphic w/ link 3 Graphic with Text 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Apartments- Text Link 1 Text 1 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Apartments- Text Link 2 Text 1 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Apartments- Text Link 3 Text 1 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Apartments- Text Link 4 Text 1 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Apartments-Anchor Tenant Other 1/15/2003 6/30/2004 [*]
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
Netscape- Home & Real Estate- Real Estate Home Finance-
Functional Integration 1 Functional Integration 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Home Finance-
Functional Integration 2 Functional Integration 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Home Finance- Graphic w/ link Graphic with Text 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Home Finance - Text Link 1 Text 1 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Home Finance - Text Link 2 Text 1 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Home Finance - Text Link 3 Text 1 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Home Finance - Text Link 4 Text 1 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Home Finance - Text Link 5 Text 1 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Home Finance - Text Link 6 Text 1 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Home Finance - Text Link 7 Text 1 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Homes- Anchor Tenant Other 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Homes- Functional Integration 1 Functional Integration 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Homes- Functional Integration 2 Functional Integration 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Homes- Functional Integration 3 Functional Integration 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Homes- Graphic w/ link 1 Graphic with Text 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Homes- Graphic w/ link 2 Graphic with Text 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Homes- Graphic w/ link 3 Graphic with Text 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Homes- Text Link 1 Text 1 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Homes- Text Link 2 Text 1 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Homes- Text Link 3 Text 1 1/15/2003 6/30/2004 [*]
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
Netscape- Home & Real Estate- Real Estate Homes- Text Link 4 Text 1 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Homes- Text Link 5 Text 1 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Main- Graphic w/ Link Graphic with Text 1/15/2003 5/31/2003 [*]
Netscape- Home & Real Estate- Real Estate Moving- Functional Integration 1 Functional Integration 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Moving- Functional Integration 2 Functional Integration 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Moving- Functional Integration 3 Functional Integration 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Moving- Graphic w/ link Graphic with Text 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Moving- Text Link 1 Text 1 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Moving- Text Link 2 Text 1 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Neighborhoods- Anchor Tenant Other 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Neighborhoods- Functional
Integration 1 Functional Integration 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Neighborhoods- Functional
Integration 2 Functional Integration 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Neighborhoods- Functional
Integration 3 Functional Integration 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Neighborhoods- Graphic w/ link 1 Graphic with Text 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Neighborhoods- Graphic w/ link 2 Graphic with Text 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Neighborhoods- Graphic w/ link 3 Graphic with Text 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Neighborhoods- Graphic w/ link 4 Graphic with Text 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Neighborhoods- Text Link 1 Text 1 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Neighborhoods- Text Link 2 Text 1 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Neighborhoods- Text Link 3 Text 1 1/15/2003 6/30/2004 [*]
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
Netscape- Home & Real Estate- Real Estate Neighborhoods- Text Link 4 Text 1 1/15/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Senior Housing- Anchor Tenant Other 6/1/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Senior Housing- Functional
Integration 1 Functional Integration 6/1/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Senior Housing- Functional
Integration 2 Functional Integration 6/1/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Senior Housing- Functional
Integration 3 Functional Integration 6/1/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Senior Housing- Graphic
w/ link 1 Graphic with Text 6/1/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Senior Housing- Graphic
w/ link 2 Graphic with Text 6/1/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Senior Housing- Graphic
w/ link 3 Graphic with Text 6/1/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Senior Housing- Text Link 1 Text 1 6/1/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Senior Housing- Text Link 2 Text 1 6/1/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Senior Housing- Text Link 3 Text 1 6/1/2003 6/30/2004 [*]
Netscape- Home & Real Estate- Real Estate Senior Housing- Text Link 4 Text 1 6/1/2003 6/30/2004 [*]
Netscape- Money & Business Banking Center- Tool Integration 1 Functional Integration 1/15/2003 6/30/2004 [*]
Netscape- Money & Business Lending Center- Tool Integration 2 Functional Integration 1/15/2003 6/30/2004 [*]
====================================================================================================================================
SUB TOTAL [*]
====================================================================================================================================
INTEGRATED PLACEMENT COMMITMENT [*]
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
EXHIBIT A-2
MEDIA PLACEMENT COMMITMENT
[*] FLIGHT TOTALS
COPY SIZE START END IMPRESSIONS
- --------------------------------------------------------------------------------------------------------------------------------
AOL CANADA
Canada - House & Home - Home Improvement 136x27 1/15/2003 6/30/2004 [*]
Canada - House & Home - Main- Permanent Anchor Tenant 136x27 1/15/2003 6/30/2004 [*]
AOL SEARCH
apartment (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
apartment finder (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
apartment listing (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
apartment locator (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
apartment rent (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
apartment rental (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
apartment search (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
apartment search (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
apartments (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
appliances (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
banking (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
blueprints (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
builder (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
builders (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
contractor (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
cooking (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
custom homes (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
decorate (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
decorating (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
finance (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
furniture (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
gardening (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
hardware (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
home builder (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
home builders (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
home buying (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
home decor (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
home decorating (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
home electronics (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
home finance (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
home financing (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
home gardening (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
home improvement (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
home insurance (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
home listings (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
home listings (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
home loans (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
home maintenance (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
home mortgages (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
home office (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
home plans (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
home remodeling (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
home security (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
home services (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
home tech (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
home theater (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
homes (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
house plans (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
insurance (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
interior design (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
loan rates (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
loans (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
manufactured housing (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
mobile home (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
mobile homes (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
modular homes (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
mortages (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
mortgage (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
mortgage calculator (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
mortgage rates (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
mortgages (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
move (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
moving (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
new home (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
new homes (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
personal finance (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
prefab home (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
real estate (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
realtor (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
refinancing (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
relocation (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
remodeling (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
rentals (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
tax (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
tools (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
vacation homes (Search Banner) 468x60 1/15/2003 6/30/2004 [*]
AOL SERVICE
AOLTW Home & Interest Network - AOL (MULTI) 1/15/2003 6/30/2004 [*]
Run of House & Home {5100000570} (MULTI) 1/15/2003 6/30/2004 [*]
Run of Parenting Channel {5100009326} (MULTI) 1/15/2003 6/30/2004 [*]
COASTAL LIVING
Run of CoastalLiving.com (468x60) 468x60 1/15/2003 6/30/2004 [*]
COMPUSERVE
Run of Home & Family 468x60 {5100011080} 468x60 1/15/2003 6/30/2004 [*]
FORTUNE
FORTUNE - Run of Fortune.com (Top468x60) 468x60 1/15/2003 6/30/2004 [*]
PARENTING.COM
Run of Parenting.com (All) (MULTI) 1/15/2003 6/30/2004 [*]
REAL SIMPLE
Run of RealSimple.com - All art sizes (MULTI) 1/15/2003 6/30/2004 [*]
SOUTHERN LIVING
Homes - SouthernLiving.com - Top (468x60) 468x60 1/15/2003 6/30/2004 [*]
Run of SouthernLiving.com (120x240) 120x240 1/15/2003 6/30/2004 [*]
Run of SouthernLiving.com (468x60) 468x60 1/15/2003 6/30/2004 [*]
SUNSET
Run of Sunset.com - Homes (120x60) 120x60 1/15/2003 6/30/2004 [*]
Run of Sunset.com (468x60) 468x60 1/15/2003 6/30/2004 [*]
================================================================================================================================
SUB TOTAL [*]
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
[*] FLIGHT TOTALS
COPY SIZE START END IMPRESSIONS
- ----------------------------------------------------------------------------------------------------------------------------------
AOL CANADA
Canada - Finance - Main Page 234x60 1/15/2003 6/30/2004 [*]
Canada - Finance - Real Estate Centre- Permanent
Sponsor 120x60 1/15/2003 6/30/2004 [*]
AOL LOCAL
AOL Local - Run of Real Estate (120x60) 120x60 1/15/2003 6/30/2004 [*]
Run of Real Estate - AOL Local - (234x60) 234x60 1/15/2003 6/30/2004 [*]
AOL SERVICE
Run of Research & Learn 2 {5100035876} 234x60 1/15/2003 6/30/2004 [*]
CNNMONEY.COM
Personal Finance - CNNMoney.com - Money 101 - Buying
A Home (Lesson) - Text 3 (150x10) 150x10 1/15/2003 6/30/2004 [*]
Personal Finance - CNNMoney.com - Your Home - Real
Estate Calculators (468x60) 468x60 1/15/2003 6/30/2004 [*]
Personal Finance - CNNMoney.com - Your Home (160x600) 160x600 1/15/2003 6/30/2004 [*]
==================================================================================================================================
SUB TOTAL [*]
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
[*] FLIGHT TOTALS
COPY SIZE START END IMPRESSIONS
- ----------------------------------------------------------------------------------------------------------------------------------
AOL CANADA
Canada - Local Guide - Main 234x60 1/15/2003 6/30/2004 [*]
Canada - Local Guide - Main- Permanent Anchor 136x27 1/15/2003 6/30/2004 [*]
Canada - Mail in Box 234x60 1/15/2003 6/30/2004 [*]
AOL LOCAL
Run of Health - AOL Local - (234x60) 234x60 1/15/2003 6/30/2004 [*]
Run of Mains - AOL Local - (234x60) 234x60 1/15/2003 6/30/2004 [*]
CLASSIFIEDS
ClassifiedPlus - General Home & Garden Package
{5100010773} 234x60 1/15/2003 6/30/2004 [*]
ClassifiedPlus - Real Estate Home Sales Package
{5100010848} 234x60 1/15/2003 6/30/2004 [*]
ClassifiedPlus - Real Estate Main and Services
Package {5100010850} 234x60 1/15/2003 6/30/2004 [*]
CNNMONEY.COM
Run of CNNMoney.com (7) (468x60) 468x60 1/15/2003 6/30/2004 [*]
INTERNATIONAL
Canada - AOL Anywhere - Home Page (Web) 120x60 1/15/2003 6/30/2004 [*]
Canada - Netscape - Main Page 120x60 1/15/2003 6/30/2004 [*]
Canada - Netscape - Main Page 234x60 1/15/2003 6/30/2004 [*]
Canada - Time - Time Main Page 468x60 1/15/2003 6/30/2004 [*]
Canada - Time - Time Main Page 120x60 1/15/2003 6/30/2004 [*]
NETSCAPE
AOLTW Personal Finance Network - Netscape (MULTI) 1/15/2003 6/30/2004 [*]
Run of Money - NET Network (468x60) 468x60 1/15/2003 6/30/2004 [*]
EBAY
Ebay - AOL - Run of Home & Garden Department 468x60 1/15/2003 6/30/2004 [*]
eBay - AOL - Run of Real Estate Department 468x60 1/15/2003 6/30/2004 [*]
eBay - CSI - Run of Home & Garden Main 468x60 1/15/2003 6/30/2004 [*]
eBay - NET - Run of Home & Garden Department 468x60 1/15/2003 6/30/2004 [*]
eBay - Public - Category Browse - Run of Home &
Garden 468x60 1/15/2003 6/30/2004 [*]
eBay - Public - Category Browse - Run of Real Estate 468x60 1/15/2003 6/30/2004 [*]
eBay - PUBLIC - Run of Home and Garden Search Terms 468x60 1/15/2003 6/30/2004 [*]
eBay - Public - Themes - Home Interiors 120x60 1/15/2003 6/30/2004 [*]
==================================================================================================================================
SUB TOTAL [*]
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
[*] FLIGHT TOTALS
COPY SIZE START END IMPRESSIONS
- ----------------------------------------------------------------------------------------------------------------------------------
AOL LOCAL
Run of Personal Finance - AOL Local 234x60 1/15/2003 6/30/2004 [*]
AOL SERVICE
Run of Career's and Work Channel {5100001077} 234x60 1/15/2003 6/30/2004 [*]
Run of Personal Finance (AOL) (Financial) 234x60 1/15/2003 6/30/2004 [*]
CNN.COM
Run of CNN.com (1) (468x60) 468x60 1/15/2003 6/30/2004 [*]
COMPUSERVE
Run of Business & Professional 120x60 {5100012753} 120x60 1/15/2003 6/30/2004 [*]
Run of Personal Finance - CSI (468x60)
(Non Financial) 468x60 1/15/2003 6/30/2004 [*]
MAPQUEST
MapQuest - Q&R - Non Specific Target (120x240 and
160x600) 120x240 1/15/2003 6/30/2004 [*]
==================================================================================================================================
SUB TOTAL [*]
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
[*] FLIGHT TOTALS
COPY SIZE START END IMPRESSIONS
- ----------------------------------------------------------------------------------------------------------------------------------
AOL ANYWHERE
AOL.com - Webmail Read Mail 234x60 1/15/2003 6/30/2004 [*]
AOL LOCAL
Run of Other Markets (Yourtown) 234x60 1/15/2003 6/30/2004 [*]
AOL SEARCH
Search Term General Rotation (ICQ, CSI, NET)
{5100034951} 468x60 1/15/2003 6/30/2004 [*]
AOL SERVICE
Run of AOL Network {5100494563} (MULTI) 1/15/2003 6/30/2004 [*]
COMPUSERVE
Run of Compuserve {5100496125} (MULTI) 1/15/2003 6/30/2004 [*]
NETSCAPE
Run of NET Network (120x240) 120x240 1/15/2003 6/30/2004 [*]
Run of NET Network (468x60) 468x60 1/15/2003 6/30/2004 [*]
==================================================================================================================================
SUB TOTAL [*]
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
[*] FLIGHT TOTALS
COPY SIZE START END IMPRESSIONS
- ----------------------------------------------------------------------------------------------------------------------------------
AIM - Buddy List - MAC - Top (120x60) 120x60 1/15/2003 6/30/2004 [*]
AIM - Buddy List - Top (120x60) 120x60 1/15/2003 6/30/2004 [*]
==================================================================================================================================
SUB TOTAL [*]
MEDIA PLACEMENT COMMITMENT [*]
==================================================================================================================================
16. TOTAL IMPRESSIONS COMMITMENT FROM INTEGRATED PLACEMENT COMMITMENT AND MEDIA PLACEMENT COMMITMENT [*]
With respect to any inventory designated as "EBAY - PUBLIC" (or similar
designation of inventory on the publicly available version of EBay, Inc.'s
primary interactive site), this Insertion Order incorporates by reference the
EBay terms and conditions (the "EBay Ad Terms") which provide, among other
things, that EBay is an express third party beneficiary of this Insertion Order.
The EBay Ad Terms appear at keyword "EBay Ad Terms 1" on the U.S.-based America
Online brand service and at "http://mediaspace.aol.com/ebayadterms1.html." A
hard copy of the EBay terms and will be provided to Advertiser upon request.
Advertiser acknowledges that it has been provided an opportunity to review the
EBay Ad Terms and agrees to be bound by them.
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
EXHIBIT B
DEFINITIONS
DEFINITIONS. The following definitions shall apply to this Agreement:
AD SERVED IMPRESSIONS. As defined in Section 6.5.1 of the Agreement.
ADVERTISEMENTS. Promotions, advertisements, links, pointers, sponsorships, and
similar services or rights.
ADVERTISEMENTS REVENUE. The aggregate amount of all cash collected from third
parties by AOL or its agents, recognized as revenue under generally accepted
accounting principles arising from the license or sale of Advertisements on the
AOL Properties, as the case may be, less applicable Advertising Sales
Commissions and net of any cancellations. Advertising Revenues shall not include
HS Professional Fees or AOL Subscription Fees. HS and AOL agree that: (a) with
respect to the Home Channel, the fair market value of barter received by a Party
or its agents in any calendar quarter from third parties other than Affiliates
from the license or sale of Advertisements shall also be included in Advertising
Revenues, but only to the extent that the fair market value of such barter
received by such Party or its agents from all such third parties other than
Affiliates in any period of measurement exceeds in the aggregate fifteen percent
(15%) of the aggregate amount of all the value (including cash and the fair
market value of barter) received by such Party or its agents during such period
of measurement from the license or sale of such Advertisements; and (b) outside
of the Home Channel on the AOL Properties, the fair market value of barter shall
not be included in Advertising Revenues; however, if HS feels that AOL is
abusing barter in HS Service related areas outside of the Home Channel and as a
result is depriving HS of a meaningful revenue source hereunder, then HS shall
have the right to raise the issue to the Management Committee for resolution as
provided in Section VII of Exhibit D.
ADVERTISING SALES COMMISSIONS. (i) Actual amounts paid as commission to third
party agencies by either buyer or seller in connection with sale of the
Advertisement or (ii) [*]%, in the event the Party has sold the Advertisement
directly and will not be deducting any third party agency commissions.
AFFILIATE. With respect to any Person any agent, distributor or franchisee of
such Person, or an entity that, directly or indirectly, controls, is controlled
by, or is under common control with such Person, including any entity in which
such Person holds, directly or indirectly, at least a nineteen percent (19%)
equity interest, except that with respect to the provisions of Section 1.4.4 and
Article 5 of the body of this Agreement the required equity interest shall be at
least fifty percent (50%).
AGREEMENT. As defined in the introductory paragraph of the Agreement.
AIM. As defined in Section 2.5.1 of the Agreement.
AOL. As defined in the introductory paragraph of the Agreement.
AOL.COM. AOL's standard narrowband version of the primary Internet-based
Interactive Site marketed under the "AOL.com(SM)" brand, regardless of whether
users access such standard narrowband version of such primary Internet-based
Interactive Site by narrowband, DSL, cablemodem or other high speed or broadband
access medium, specifically excluding (a) the AOL Service, (b) any international
versions of such site, (c) CompuServe.com, Netscape.com, any other CompuServe or
Netscape products or services or interactive sites, (d) "ICQ(SM)," "AOL Search,"
"AOL Instant Messenger(SM)," "AOL NetMail(SM)" or any similar independent
product or service offered by or through such site or any other AOL Interactive
Site, (e) any programming or Content area offered by or through such site over
which AOL does not exercise complete operational control (including, without
limitation, Content areas controlled by other parties and member-created Content
areas), (f) any programming or Content area offered by or
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITTED AND FILED SEPERATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMMITTED PORTIONS.
CONFIDENTIAL
through the U.S. version of the America Online brand service which was operated,
maintained or controlled by the former AOL Studios division, (g) any yellow
pages, white pages, classifieds or other search, directory or review services or
Content offered by or through such site or any other AOL Interactive Site, (h)
any property, feature, product or service which AOL or its Affiliates may
acquire subsequent to the Effective Date and (i) 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 or services, including,
without limitation, any co-branded versions and any version distributed through
any broadband distribution platform or through any platform or device other than
a desktop personal computer.
AOL BROADBAND. The specific Content and functionality which is available through
the U.S. version of the America Online brand service and which is accessible
solely through a high speed (generally over 100 kbps) broadband distribution
platform, specifically excluding (a) the components of the AOL Service
accessible through narrowband distribution platforms, (b) AOL.com, any AOL
Interactive Site and the international versions of an America Online service
(e.g., AOL Japan) and any broadband component available through such AOL
Properties and versions (c) the CompuServe brand service and any other
CompuServe products or services whether broadband or narrowband, (d)
Netscape.com and any other Netscape products or services whether broadband or
narrowband, (e) "ICQ" "AOL NetFind," "AOL Instant Messenger," "Digital City"
"NetMail," "Real Fans", "Love@AOL", "Entertainment Asylum," "AOL Hometown" or
any similar independent product, service or property which may be offered by,
through or with the U.S. version of the America Online brand service or the
broadband component thereof, (f) 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),
whether broadband or narrowband, (g) 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 whether broadband or
narrowband, (h) any property, feature, product or service which AOL or its
Affiliates may acquire subsequent to the date of this Agreement and (i) any
other version of an America Online service (and broadband Content associated
therewith) 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 or services, including, without limitation, any
co-branded version of the service and any version distributed through any
platform or device other than a desktop personal computer.
AOL CANADA. The standard narrow-band Canadian version of the America Online(R)
brand service regardless of whether users access such standard narrowband
service by narrowband, DSL, cablemodem or other high-speed or broadband access
medium, specifically excluding (a) AOL.com and any other AOL Interactive Site(b)
other international versions of an America Online service (e.g., AOL Japan), (c)
the CompuServe(R) brand service and any other CompuServe products or services,
(d) Netscape Netcenter(TM) and any other Netscape(R) products or services, (e)
"ICQ(SM)," "AOL Search," "AOL Instant Messenger(SM)," "Digital City(SM)," "AOL
NetMail(SM)," "Real Fans(SM)", "Love@AOL(SM)", "Entertainment Asylum(SM)," "AOL
Hometown(SM)" or any similar independent product, service or property which may
be offered by, through or with the Canadian version of the America Online(R)
brand service, (f) any programming or content area offered by or through the
Canadian version of the America Online(R) brand service over which AOL does not
exercise complete operational control (including, without limitation, Content
areas controlled by other parties and member-created Content areas), (g) any
yellow pages, white pages, classifieds or other search, directory or review
services or Content offered by or through the Canadian. version of the America
Online(R) brand service, (h) any property, feature, product or service which AOL
or its Affiliates may acquire subsequent to the Effective Date and (i) any other
version of an America Online service which is materially different from the
standard narrow-band Canadian version of the America Online brand service, by
virtue of its branding, distribution, functionality, Content or services,
including, without limitation, any co-branded version of the service and any
version
2 CONFIDENTIAL
distributed through any platform or device other than a desktop personal
computer or, except as expressly provided above, through any broadband
distribution platform.
AOL INTERACTIVE SITE. Any interactive site which is managed, maintained, owned
or controlled by AOL or its agents.
AOL LIST. As defined in Section 6.4 of the Agreement.
AOL LOOK AND FEEL. The elements of graphics, design, organization, presentation,
layout, user interface, navigation, trade dress and stylistic convention
(including the digital implementations thereof) within the AOL Network and the
total appearance and impression substantially formed by the combination,
coordination and interaction of these elements.
AOL NETWORK. (i) The AOL Service, AOL Broadband, AOL.com, the CompuServe
Service, Digital City and Netscape.com and (ii) any other product, service or
property owned, operated, distributed or authorized to be distributed by or
through AOL or its Affiliates worldwide (and including those products, services
and properties that are excluded from the definitions of the AOL Service,
AOL.com or any other AOL Property). It is understood and agreed that the rights
of HS relate solely to particular AOL Properties as expressly set forth in this
Agreement and not generally to the AOL Network.
AOL PROPERTIES. The AOL Service, AOL Broadband, AOL.com, the Compuserve Service,
Netscape.com, Digital City, and AOL Canada.
AOL PURCHASER. In the case of the Customized Sites, (i) any AOL User who enters
the Customized Sites from the AOL Properties and generates Transaction Revenues
from the purchase of Products on the Customized Sites, (ii) any AOL User who
generates Transaction Revenues from any other electronic means through a
promotion directed at AOL Users (e.g., e-mail offers), or (iii) any AOL User who
generates Transaction Revenues from an "offline" means (e.g. toll-free number)
for receiving orders related to specific offers within the Customized Sites
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). In the case of the AOL
Properties, (i) any AOL User who enters the AOL Properties and generates
Transaction Revenues thereon from the purchase of Products within any HS
Service, (ii) any AOL User who generates Transaction Revenues from any other
electronic means through a promotion directly relating to Products within any HS
Service, or (iii) any AOL User who generates Transaction Revenues from an
"offline" means (e.g. toll-free number) for receiving orders related to specific
offers within the AOL Properties directly relating to Products within any HS
Service requiring purchasers to reference a specific promotional identifier or
tracking code, including, without limitation, products sold through surcharged
downloads.
AOL SERVICE. The standard narrow-band U.S. version of the America Online(R)
brand service regardless of whether users access such standard narrowband
version of such service by narrowband, DSL, cable modem or other high-speed or
broadband access medium, specifically excluding (a) AOL.com(SM) and any other
AOL Interactive Site, (b) the international versions of an America Online
service (e.g., AOL Japan), (c) the CompuServe(R) brand service and any other
CompuServe products or services, (d) Netscape.com and any other Netscape(R)
products or services, (e) "ICQ(SM)," "AOL Search," "AOL Instant Messenger(SM),"
"Digital City(SM)," "AOL NetMail(SM)," "Real Fans(SM)", "Love@AOL(SM)",
"Entertainment Asylum(SM)," "AOL Hometown(SM)" or any similar independent
product, service or property which may be offered by, through or with the U.S.
version of the America Online(R) brand service, (f) any programming or content
area offered by or through the U.S. version of the America Online(R) brand
service over which AOL does not exercise complete operational control
(including, without limitation, Content areas controlled by other parties and
member-created Content areas), (g) any yellow pages, white pages, classifieds or
other search, directory or review services or Content offered by or through the
U.S. version of the America Online(R) brand service, (h) any property, feature,
product or service which AOL or its Affiliates may acquire subsequent to the
Effective Date and (i) any other version of an America Online service which is
materially different
3 CONFIDENTIAL
from the standard narrow-band U.S. version of the America Online brand service,
by virtue of its branding, distribution, functionality, Content or services,
including, without limitation, any co-branded version of the service and any
version distributed through any platform or device other than a desktop personal
computer or, except as expressly provided above, through any broadband
distribution platform.
AOL SUBSCRIPTION FEES. Any subscription, licensing or other fees for use of the
products, services and properties included within the definition of the AOL
Network (i.e., the subscription fees for the AOL Service).
AOL TOOLS. As defined in Section 2.5.1 of the Agreement.
AOL USER. Any user of the AOL Network, including authorized users (including any
sub-accounts under an authorized master account) of the AOL Service and/or the
CompuServe Service.
AOL VISITOR. Any Person who enters the Customized Site or the Customized
Programming 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), (regardless of whether
such Person provides an e-mail address during registration or entrance to the
Customized Site which includes a domain other than an "AOL.com" domain); and
(ii) any other Person who, when purchasing a product, good or service through an
HS Interactive Site, provides an AOL.com domain name or a CompuServe.com domain
name as part of such Person's e-mail address.
CARRIAGE PLAN. As defined in Section 1.1 of the Agreement.
CATEGORY SHARE. As defined in Section 6.3 of the Agreement.
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 (a "FUNDAMENTAL TRANSACTION"), other than a Fundamental Transaction
which would result in the holders of the Party's voting securities outstanding
immediately before the Fundamental Transaction continuing after the Fundamental
Transaction to own more than 50% of the outstanding voting securities of (A) the
Company, (B) the surviving entity in the Fundamental Transaction, or (C) in the
case of a division, each entity resulting from the division; 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 1934, 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.
CLASSIFIEDS. As defined in Section 5.1.2 of the Agreement.
COMPUSERVE SERVICE. The standard HTML version of the narrow-band U.S. version of
the CompuServe brand service, regardless of whether users access such standard
narrowband service by narrowband, DSL, cable modem or other high-speed or
broadband access medium, specifically excluding (a) any international versions
of such service (e.g., NiftyServe), (b) any web-based service including
"compuserve.com", "cserve.com" and "cs.com", or any similar product or service
offered by or through the U.S. version of the CompuServe brand service, (c)
Content areas owned, maintained or controlled by CompuServe Affiliates or any
similar "sub-service," (d) any programming or Content area offered by or through
the U.S. version of the CompuServe brand service over which CompuServe does not
exercise complete or substantially complete operational control (e.g.,
third-party Content areas), (e) any yellow pages, white pages, classifieds or
other search, directory or review services or Content (f) any co-branded or
private label branded version of the U.S. version of the CompuServe brand
service, (g) any version of the U.S. version of the CompuServe brand service
which offers Content, distribution, services or functionality materially
different from the Content, distribution, services or functionality associated
with the standard, narrow-band U.S. version of the CompuServe brand service,
including, without limitation, any version of such service distributed through
any platform or device other than a desktop personal computer, (h) any property,
feature, product or service which
4 CONFIDENTIAL
CompuServe or its Affiliates may acquire subsequent to the Effective Date, (i)
the America Online brand service and any independent product or service which
may be offered by, through or with the U.S. version of the America Online brand
service and (j) the HMI versions of the CompuServe brand service.
CONFIDENTIAL INFORMATION. Any information relating to or disclosed in the course
of this 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 Users, technical
processes and formulas, source codes, product designs, sales, cost and other
unpublished financial information, product and business plans, projections and
marketing data. "Confidential Information" shall 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 through no
fault of the disclosing Party, or (d) lawfully obtained from any third party.
CONTENT. Text, images, video, audio (including, without limitation, music used
in time relation with text, images, or video), and other data, products,
services, Advertisements, promotions, URLs, keywords and other navigational
elements, links, pointers, technology and software.
CPM. Cost per one thousand Impressions.
CREDIT REPORTS. A report aggregating and detailing consumer credit information
from one or more of the following credit agencies: Experian, Equifax and
TransUnion. Products included, without limitation, 3 bureau credit report, 3
bureau credit score, and credit monitoring.
CRIME REPORTS. Reports detailing crime statistics for a particular geographic
area, including, without limitation, violent crime, aggravated assault, murder,
and robbery.
CUSTOMIZED PROGRAMMING. Any (a) areas within the AOL Network or outside the AOL
Network but exclusively available to AOL Users and all Licensed Content thereon,
to the extent such area is developed, programmed, and/or managed by HS or its
Affiliates or their respective agents pursuant to this Agreement (including,
without limitation, message boards, chat and other AOL User-supplied content
areas contained therein and including any sites or areas linked thereto)
including, without limitation, any co-branded site or page, but excluding the
Customized Site and (b) Licensed Content provided to AOL by HS or its Affiliates
or their respective agents pursuant to this Agreement and used by AOL in
accordance with this Agreement for distribution on or through the AOL Network
other than on the Customized Site.
CUSTOMIZED SITES. Collectively, each version of the Generally Available Sites
that is customized for distribution through the AOL Network in accordance with
this Agreement.
DESIGNATED PRODUCTS. Credit Reports and Property Reports.
DIGITAL CITY. The standard, narrow-band U.S. version of DCI's local content
offerings marketed under the Digital City brand name, regardless of whether
users access such standard, narrowband version of such local content offerings
by narrowband, DSL, cablemodem or other high-speed or broadband access medium,
specifically excluding (a) the AOL Service, AOL.com or any other AOL Interactive
Site, (b) any international versions of such local content offerings, (c) the
CompuServe brand service and any other CompuServe products or services (d)
"Driveway," "ICQ," "AOL Search," "AOL Instant Messenger," "Digital City," "AOL
NetMail," "Electra", "Thrive", "Real Fans", "Love@AOL", "Entertainment Asylum,"
"AOL Hometown," "My News" or any similar independent product, service or
property which may be offered by, through or with the standard narrow band
version of DCI's local content offerings, (e) any programming or Content area
offered by or through such local content offerings over which AOL does not
exercise complete operational control (including, without limitation, Content
areas controlled by other parties and member-created Content areas), (f) any
yellow pages, white pages, classifieds or other search, directory or review
services or Content offered by or through such local content offerings, (g) any
property, feature, product or service which AOL or its Affiliates may acquire
subsequent to the Effective Date, (h) any other version of a DCI local content
offering which is materially different from the narrow-band U.S. version of
DCI's local
5 CONFIDENTIAL
content offerings marketed under the Digital City brand name, by virtue of its
branding, distribution, functionality, Content or services, including, without
limitation, any co-branded version of the offerings and any version distributed
through any broadband distribution platform or through any platform or device
other than a desktop personal computer, and (i) Digital City-branded offerings
in any local area where such offerings are not owned or operationally controlled
by AOL, Inc. or DCI (e.g., Chicago, Orlando, South Florida, and Hampton Roads).
EFFECTIVE DATE. As defined in the introductory paragraph of the Agreement.
EXISTING AGREEMENT. As defined in the Introduction of the Agreement.
FSBOS. As defined in Section 5.1.2 of the Agreement.
FUNDAMENTAL TRANSACTION. As defined in the definition of "Change of Control."
GENERALLY AVAILABLE SITES. The Internet sites and Content, currently located at
the following URLs and all related URLs and any successors thereto containing HS
Services, which are owned or operated by HS or its Affiliates or their
respective agents or to which HS or its Affiliates or their respective agents
licenses information, content or other materials:
http://www.homestore.com
http://www.realtor.com
http://www.homebuilder.com
http://www.springstreet.com
http://www.remodel.com
http://www.homefair.com
http://www.manufacturedhousing.com
http://www.homeplans.com
http://www.homestyle.com
http://www.rent.net
http://www.rentnet.com
http://www.move.com
http://www.seniorhousing.net
HOME CHANNEL. As defined in Section 1.1 of the Agreement.
HS. As defined in the introductory paragraph of the Agreement.
HS APPLIANCES. The aggregation of service provider directories (consisting of
listings) and Content directly related to assisting persons select, purchase,
install and/or maintain appliances in their homes, including, without
limitation, kitchen appliances, washer and dryer appliances, heating and cooling
appliances in an online database searchable by such prospective persons.
HS APARTMENTS LISTINGS SERVICES. The aggregation of nation-wide real property
listings from third party content providers for residential Rental Properties
and short term corporate housing (excluding vacation and time-share properties)
in an online database searchable by prospective home renters. HS Apartments
Listings does not include any listings or other Content encompassed within any
other HS Service.
HS HOME DECORATING. The aggregation of service provider directories (consisting
of listings) and Content directly related to assisting persons to plan,
understand, and undertake home decorating projects, including, without
limitation, color choice, paint choice, painting techniques, room design, feng
shui, and furniture arrangement.
HS EXCLUSIVE SERVICES. HS Apartments Listings Services, HS Home Listings
Services, and HS Senior Listings Services.
HS HARDWARE. The aggregation of third-party Content directly related to
assisting persons to select and purchase the proper hand and power tools
necessary for projects for their homes.
HS HOME LISTINGS SERVICE. The aggregation of nation-wide property listings from
the multiple listings service and other third party content providers for new
and/or existing homes (including manufactured housing (i.e., mobile homes)) and
vacation homes for sale (not rental) but excluding time-share properties) in an
online database searchable by prospective home buyers and the aggregation of
listings for realtors and home builders in an online searchable database. HS
Home Listings Service does not include: (i) listings for any other form of real
estate other than new and existing homes (including, without limitation, Rental
Properties or commercial real estate), (ii) any home listings posted online by
AOL Users other than an AOL User which aggregates for sale
6 CONFIDENTIAL
by owner listings as its primary business, and (iii) any listings or other
Content encompassed within any other HS Service.
HS HOME FINANCE. Fee-based services directly related to (a) the origination of
first mortgages and second or other subordinate mortgages, home improvement
loans, home equity loans, and (b) the other fee-based services included on the
HUD-1 form (e.g., appraisals, credit reports, flood certifications and title
reports).
HS HOME OFFICE. The aggregation of service provider directories (consisting of
listings) and Content directly related to home office design.
HS HOME SECURITY. The aggregation of service provider directories (consisting of
listings) and Content directly related to assisting persons in securing their
homes from intrusion by third parties, including, without limitation, alarm
systems, and similar technology based solutions.
HS HOME SERVICES. The aggregation of home service provider directories
(consisting of listings) related to assisting persons in hiring third party
contractors for services directly related to the maintenance and improvement of
the physical systems and structures of their homes such as, without limitation,
architects, electricians, plumbers, roofers, cleaners and carpenters. HS Home
Services does not include any listings or other Content encompassed within any
other HS Service.
HS HOME TECHNOLOGY. The aggregation of service provider directories (consisting
of listings) and Content directly related to assisting persons select, purchase
and/or install technology solutions in their homes to make a home more
efficient, easier to manage or safer, including, without limitation, lighting
products and services, heating and cooling technology, but excluding
telecommunications and Internet access related services.
HS LAWN & GARDEN. The aggregation of service provider directories (consisting of
listings) and Content directly related to assisting persons to design, grow
and/or maintain their lawns, gardens, and landscapes, including, without
limitation, gardening and landscape services, gardening supplies, seeds and
plants.
HS LIST. As defined in Section 6.4 of the Agreement.
HS LOOK AND FEEL. The elements of graphics, design, organization, presentation,
layout, user interface, navigation, trade dress and stylistic convention
(including the digital implementations thereof) within the HS Interactive Sites
and the total appearance and impression substantially formed by the combination,
coordination and interaction of these elements.
HS MOVING SERVICES. The aggregation of moving service provider directories,
together with transactions for related products and services and related
Content, all directly related to assisting persons move from one home to
another, including, without limitation, national and regional packing and moving
services, van lines, movers and truck rentals. HS Moving Services does not
include any listings or other Content encompassed within any other HS Service.
HS PRESENCE. Any (a) HS trademark or logo, (b) headline or picture from HS
Content, (c) teaser, icon, or link to the Customized Site or Customized
Programming and/or (d) other Content which originates from, describes or
promotes HS or HS' Content.
HS PRODUCT. Any product, good or service which HS (or others acting on its
behalf or as distributors) offers, sells, provides, distributes or licenses to
users of the Generally Available Sites.
HS PROFESSIONAL FEES. The aggregate amounts collected by HS and its agents from
third party professionals for the provision of web site development and hosting
services.
HS PROPERTIES. The Customized Sites and the Generally Available Sites.
HS SENIOR LISTINGS SERVICES. The aggregation of service provider directories
(consisting of listings) and Content directly related to assisting senior
citizens in finding housing providing long term care and/or meeting other
retirement needs.
HS SERVICES. HS Home Listings Service, HS Apartments Listings Services, HS
Senior Listings Services, HS Home Decorating, HS Home
7 CONFIDENTIAL
Finance, HS Home Office, HS Home Security, HS Home Services, HS Home Technology,
HS Lawn & Garden, HS Appliances, HS Hardware, and HS Moving Services.
IMPRESSION. User exposure to a page or screen containing an HS Presence, as such
exposure may be reasonably determined and measured by AOL in accordance with its
standard methodologies and protocols consistent with generally accepted
standards. Each HS Presence on any such page or screen will count as a separate
Impression.
INTEGRATED PLACEMENT COMMITMENT. As defined in Section 1.2 of the Agreement.
INTERACTIVE SERVICE. An entity offering one or more of the following: (i) online
or Internet connectivity services (e.g., an Internet service provider); (ii) an
interactive site or service featuring a broad selection of aggregated third
party interactive content (e.g., Yahoo, Alta Vista, Lycos), or navigation
thereto (e.g. Google) ; or (iii) communications software capable of serving as
the principal means through which a user creates, sends or receives electronic
mail or real time online messages.
KEY INDICATORS. As defined in Section 5.2.1 of the Agreement.
KEYWORD SEARCH TERMS. (a) The Keyword online search terms made available on the
AOL Service, combining AOL's Keyword online search modifier with a term or
phrase specifically related to HS (and determined in accordance with the terms
of this Agreement) and (b) the Go Word online search terms made available on the
CompuServe Service, combining CompuServe's Go Word online search modifier with a
term or phrase specifically related to HS (and determined in accordance with the
terms of this Agreement). Keyword Search Terms provided to HS are set forth in
the Programming Plan attached as Exhibit C to the Agreement.
LAUNCH DATE. As defined in Section 1.1 of the Agreement.
LICENSED CONTENT. All Content provided by or on behalf of HS or its Affiliates
and/or their respective agents to AOL, its Affiliates and/or their respective
agents pursuant to this Agreement (e.g., offline promotional content or online
Content for distribution through the AOL Network), including without limitation
all Customized Programming.
LOC TERMINATION. As defined in Section 6.1 of the Agreement.
MATERIAL NON-COMPLIANCE EVENT. As defined in Section 1.7 of the Agreement.
MEDIA PLACEMENT COMMITMENT. As defined in Section 1.2 of the Agreement.
MERRILL LYNCH. As defined in Section 13.1.1 of the Agreement.
NAMED ENTITIES. Each of:
[*]
NEIGHBORHOOD REPORTS. An editorial and statistical report regarding population
and general demographics of a geographic area, including, without limitation,
population, composition, average home price, average home size, home types
available, and urbanization.
NETSCAPE.COM. Netscape Communications Corporation's primary narrowband version
of the Internet-based Interactive Site marketed under the "Netscape Netcenter
SM" brand, regardless of whether users access such standard narrowband version
of such Internet-based Interactive Site by narrowband, DSL, cablemodem or other
high-speed or broadband access medium, specifically excluding (a) the AOL
Service and the CompuServe Service, (b) AOL.com and CompuServe.com, (c) any
international versions of such site, (d) "ICQ," "AOLSearch," "AOL Instant
Messenger," "AOL NetMail," "AOL Hometown," "My News," "Digital City," or any
similar independent product or service offered by or through such site or any
other AOL Interactive Site, (e) any programming or Content area offered by or
through such site over which AOL does not exercise complete operational control
(including, without limitation, Content areas controlled by other parties and
member-created Content areas), (f) any programming or Content area offered by or
through the U.S. version of the America Online brand service which was operated,
maintained or controlled by the former AOL Studios division (e.g., Electra), (g)
any yellow pages, white pages,
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMMITTED AND FILED SEPERATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMMITTED PORTIONS.
8 CONFIDENTIAL
classifieds or other search, directory or review services or Content offered by
or through such site or any other AOL Interactive Site, (h) any property,
feature, product or service which AOL or its Affiliates may acquire subsequent
to the Effective Date and (i) any other version of an AOL or Netscape
Communications Corporation Interactive Site which is materially different from
Netscape Communications Corporation's primary Internet-based Interactive Site
marketed under the "Netscape Netcenter TM" brand, by virtue of its branding,
distribution, functionality, Content or services, including, without limitation,
any co-branded versions and any version distributed through any broadband
distribution platform or through any platform or device other than a desktop
personal computer (e.g., Custom NetCenters built specifically for third
parties).
NON-AD SERVED IMPRESSIONS. As defined in Section 6.5.2 of the Agreement.
PARTY. As defined in the introductory paragraph of the Agreement.
PERSON. A natural person, a corporation, a partnership, a limited liability
company, a trust, a joint venture, any governmental authority or any other
entity or organization.
PRESS RELEASE. As defined in Section 8 of the Agreement.
PRIOR AGREEMENTS. As defined in Section 11 of the Agreement.
PRODUCT. Any product, good or service which HS or AOL (or others acting on its
behalf or as distributors) offers, sells, provides, distributes or licenses to
AOL Users directly or indirectly through (i) the Customized Site, Customized
Programming or AOL Properties, (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 Customized
Site, Customized Programming or AOL Properties 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).
PROGRAMMING PLAN. As defined in Section 1.1 of the Agreement.
PROMOTION. The promotions described on Exhibit A and any other promotions
provided by AOL to HS.
PROPERTY REPORTS. A report designed to assist potential buyers/sellers in
valuing a home by detailing relevant information on a subject property,
including, without limitation, physical property information, comparable sales,
School Reports, Crime Reports, Neighborhood Reports, natural hazards and
environmental hazards.
REFERENCE. As defined in Exhibit G of the Agreement.
RENTAL PROPERTIES. A building or buildings owned by the same Person, which
building or buildings contain one or more dwelling units held for rent.
SALES REVENUES. Advertisements Revenues plus Transaction Revenues.
SCHOOL REPORTS. An editorial and statistical report detailing relevant
information on a given school or schools in a given area, including, without
limitation, student population, student teacher ratio, average class size,
graduation rate, and number of computers in class rooms.
SECURITIES PURCHASE AGREEMENT. As defined in Section 11 of the Agreement.
SHOP@AOL. The aggregated shopping services on the AOL Properties (e.g.,
Shop@AOL, the Shopping Channel).
TAXES. As defined in Section 6.12 of the Agreement.
TERM. The period beginning on the Effective Date and ending upon the expiration
or earlier termination of this Agreement, as further defined in Section 7.1 of
the Agreement.
TERM INTEGRATION SHORTFALL. As defined in Section 1.2 of the Agreement.
TERM MEDIA SHORTFALL. As defined in Section 1.2 of the Agreement.
9 CONFIDENTIAL
TRANSACTION REVENUES. The aggregate amount of all cash collected by a Party or
its agents from third parties and recognized as revenue under generally accepted
accounting principles from AOL Purchasers in connection with the sale,
licensing, distribution or provision of any Designated 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 unreduced by such
Party's and its agents' direct cost of goods sold. Transaction Revenues shall
not include AOL Subscription Fees.
10 CONFIDENTIAL
EXHIBIT C
PROGRAMMING PLAN
GENERAL PROGRAMMING OVERVIEW AND REQUIREMENTS:
HS and its family of brands (e.g., Realtor.com, Rent.net, Homebuilder.com) will
provide the editorial content and functionality set forth below and otherwise
mutually agreed by the Parties from time to time for integration within the AOL
Properties. The editorial content provided by HS will supplement existing
content offerings provided by other current channel partners and may primarily
be used as rotating feature and how-to articles. HS will provide features that
are timely, reflecting current trends and interests, and appropriate for the
audience of each AOL property. All Content will be updated at least as
frequently as the industry standard set by other leading Content providers in
the relevant category and in accordance with the schedule set forth below where
specified. HS will provide to AOL any Content optimized for broadband access
which is available on the Generally Available Sites.
CUSTOMIZED SITES
HS shall deliver the programming specified below on each version of the
Customized Site co-branded with the applicable AOL property. AOL's provision of
the Promotions specified in Exhibit A-1 and A-2 shall be contingent on HS
providing the following Content. If any such Content is unavailable, AOL be
relieved of the obligation to provide any Promotion related to such Content from
the date such Content becomes unavailable until [*] ([*]) days after such
Content again becomes available. In the event that AOL does not deliver any
Promotions in accordance with the foregoing sentence, AOL shall be relieved of a
proportional amount of the Integrated Placement Commitment and/or Media
Placement Commitment, as applicable, related to the Promotions which were not
displayed.
GENERAL CONTENT & FUNCTIONALITY REQUIREMENTS:
(AOL will provide HS with technical specifications for feeds after the Effective
Date).
REAL ESTATE: HS will provide the following tools, functionality and Content:
Content, listings, links and backend support for the following widgets on AOL
Service, Netscape and CompuServe:
- - Home/apartment search
- - Existing/New home search
- - Find a lender
- - Find a mover
- - Apartment search
- - Find storage
- - Rent calculator
- - Neighborhood search
- - City or school comparison tool
- - Salary calculator
- - Senior housing
- - Moving checklist
- - Mortgage calculator
- - Home affordability calculator
- - Rent vs. buy calculator
- - Credit links
HS will ad serve the following widgets:
- - Local featured home on ~3 pages/brand
- - Local featured apartment on ~3 pages/brand
- - Local featured Realtor on ~3 pages/brand
- - Featured new homes~3 pages/brand
- - Featured builder~3 pages/brand
HS will provide the following Feeds:
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
- - Mortgage rates (Localized & national) for each brand
Logo graphic for sponsorship on all Real Estate main and sub areas
Real Estate/Moving/Home Finance editorial for the AOL Properties:
- - Real Estate tools, calculators and decision guides, including, but not limited
to the following:
- Home appreciation;
- Home affordability;
- Mortgage calculator;
- Rent vs. buy;
- City comparison;
- School comparison;
- Neighborhood comparison;
- Find a neighborhood;
- Home valuation;
- Closing checklist;
- Buying guide;
- Selling guide;
- Moving checklist;
- Calculate moving costs;
- Calculate packing supplies;
- Rent calculator;
- Crime report; and
- Cost of living calculator.
- - HS shall at all times display the most recent real estate listings Content
available. Additionally, HS shall make available supporting real estate news
Content
- - News/topical information shall be updated every other week at minimum (tools
and other static links should be updated as necessary or as mutually agreed
upon by the Parties).
- - News/topical articles are defined as information that reflects the current
status of an ever-changing industry. (News/topical articles do not generally
include tools, calculators, buying/selling basics and other such Content that
does not change over the course of time). Should newer articles become
available that supersedes the article/information on
Homes/Apartments/Neighborhoods/Senior Housing, the article/information will be
considered out of date and HS will replace the "dated" article within [*]
([*]) days, or remove it completely until such time that a replacement article
can be authored.
- - If news/topical links are not updated or removed as provided herein, AOL will
provide HS notice and HS will have [*] days to perform the refreshes. Should
those updates not be made, Homestore will be considered in breach of contract
without regard to any additional cure period set forth in the Agreement (i.e.,
this [*] day cure period replaces the 30 day cure period set forth in Section
7.2).
"LIVING" CATEGORIES: HS will provide the following tools, functionality and
Content.
Home Improvement:
- - How-to home improvement articles with images and step-by-step;
- - Before and after home improvement articles;
- - Material and project estimator calculators and tools;
- - Content such as ,Top 10 Lists, Smart Tips, etc.);
- - Photo galleries;
- - Content feed (including the above-described Content), updated weekly, for
CompuServe and Netscape;
Decorating:
- - Decorating how-to features;
- - Inspirational decorating features;
- - Celebrity decorating features;
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
2 CONFIDENTIAL
- - Decorating before-and-after features;
- - Room-by-room features (e.g., kitchens, bedrooms, living rooms);
- - Material and project estimator calculators and tools;
- - Content such as Top 10 Lists, Smart Tips, etc.;
- - Photo galleries;
- - Content feed (including the above-described Content), updated weekly, for the
AOL Properties.
Gardening:
- - Inspirational, seasonally appropriate gardening features;
- - Garden problem solver tool and content (HS will provide a "problem solver"
application, as currently executed on the H&H Gardening Main Screen, that
helps AOL Members identify and solve problems with flowers, houseplants,
vegetables, lawns, trees and shrubs);
- - Content feed (including the above-described Content), updated weekly, for the
AOL Properties;
- -
Cross-category home service directories content/links:
- - Decorator/designer;
- - Contractor;
- - Painter;
- - Landscaper;
- - Gardener;
- - Wallpaper hanger;
- - Handyman/all purpose;
- - Carpenter;
- - Plumber;
- - Electrician;
- - Architect;
- - Builder;
- - Others as determined by AOL.
CLASSIFIEDS: HS will provide the following tools, functionality and Content:
- - HS shall provide apartment listings to the AOL Properties
- - HS shall provide AOL with the apartment listings data in a machine-readable
format through an FTP feed. The frequency of the feed will be determined by HS
in its reasonable discretion and communicated to AOL.
- - HS shall adhere to the listing feed upload specifications for each AOL
Property.
- - AOL has the right to modify the upload specification one (1) time per quarter.
AOL will notify HS of any changes. HS has [*] days from notification to comply
to the modified specification. If HS does not comply with the new
specification after such [*] day period, the data feed will fail and listings
will not be published until the feed meets the new specification.
- - In the event that HS provides to AOL a feed that does not meet specifications
or the data contains errors (ex. monthly rental price for an apartment is a
$1), AOL reserves the right to suspend the feed or remove the erroneous
records until they can be corrected.
REAL ESTATE - PERSONAL FINANCE: HS will provide the following tools,
functionality and Content::
- - Daily and weekly national and local mortgage rate data on the following
products: 30-year fixed mortgage, 15-year fixed mortgage and 1-Year ARM.
- - The data shall include current rate, change vs. the week-ago rate, the monthly
cost of the mortgage itself on a $150k loan, for example, and the change over
the week ago cost. Feed shall also include URL to link in to a more detailed
rate table hosted by HS.
- - Feed shall be provided in XML and delivered daily at midnight ET for the
previous day (for the 5 business days each week).
- - Feed shall link through to a rate table on the Customized Site that displays
current rates for selected products from an aggregate of lenders.
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
3 CONFIDENTIAL
- - With respect to the `How Much House Can You Afford' widget, when an AOL user
clicks through to the Customized Site from the `Home Affordability' widget,
results shall be transparent, with no pop-ups or secondary screens displayed
before the user sees the results.
- - Home and apartment search. HS shall at all times display the most recent real
estate listings Content available.
- - How Much Can you Afford Widget
- - Calculate your mortgage widget.
BROADBAND: HS will provide access to the following broadband Content in addition
to any other Content optimized for broadband access which is available on the
Generally Available Sites.
- - Virtual home tours;
- - Neighborhood tours, to the extend HS has such Content available;
- - Apartment community tours;
- - Buying/selling tutorials video, if made available by HS.
OTHER CATEGORIES: HS will provide AOL access to all other tools, functionality,
and Content then available on any Generally Available Site (e.g., appliances,
commercial services, etc.) for use through the AOL Network.
CUSTOMIZED PROGRAMMING
HS shall deliver the programming specified below for AOL's inclusion within the
AOL Properties and, at AOL's option, other portions of the AOL Network. AOL's
provision of the Promotions specified in Exhibit A-1 and A-2 shall be contingent
on HS providing the following Content. If any such Content is unavailable, AOL
be relieved of the obligation to provide any Promotion related to such Content
from the date such Content becomes unavailable until [*] ([*]) days after such
Content again becomes available. In the event that AOL does not deliver any
Promotions in accordance with the foregoing sentence, AOL shall be relieved of a
proportional amount of the Integrated Placement Commitment and/or Media
Placement Commitment, as applicable, related to the Promotions which were not
displayed.
REAL ESTATE
- Homes ([*])
- Apartments ([*])
- Senior Housing ([*])
- Neighborhoods ([*])
- Homes widget (New, Existing and Manufactured homes): Widget will be more
in-depth and robust than home search widget on main screen and will
include property type radio buttons.
- Apartments widget (Rentals, Temporary housing, Senior housing): Will
include property type radio buttons.
- Rates Widget or ticker
- "Featured..." widget (Featured Homes, Realtors, Apartments, Builders).
- "Find a..." widget, input box or dropdown (Find a Realtor, builder, home
plan, apartment community, lender)
[*] screens will all be built, hosted and programmed by HS in accordance with
AOL UI, design and branding direction and subject to final AOL approval. AOL
will have input on the programming of these screens. HS shall at all times
display the most recent real estate news and information on these pages.
WIDGETS:
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
4 CONFIDENTIAL
- - find a lender
- - find a mover
- - mortgage calculator
- - mortgage rate feed
- - find self storage
- - salary calculator
- - neighborhood information
- - school reports
- - check your credit/credit reports
- - home affordability calculator
- - relocation wizard
MOVING PAGE: [*] screen will be built, hosted and programmed by AOL. HS will
provide Content for integration within this page as follows.
SCREEN ELEMENTS:
- - Planning section/navigation, with hyperlinks to more Content on the Customized
Site.
- - "Executing" section/navigation, with hyperlinks to more Content on the
Customized Site.
- - Moving checklist/s.
- - "Payoff" section, where a paragraph or robust offering of Content is presented
to the member.
- - AOL New Homeowners Guide section
- - Additional promotional areas as space permits
- - Find a mover widget
For the avoidance of doubt, inclusion of any Content on this Exhibit C does not
represent any obligation of or guarantee by AOL that such Content will be
promoted by AOL in any particular manner; guaranteed promotion of Content will
be as set forth in the Carriage Plan and Sections 1.1 through 1.3 of the
Agreement.
KEYWORD SEARCH TERMS
Subject to the provisions of Exhibit D, HS shall have the right to use the
following Keyword Search Terms:
Homestore
Homestore.com
Realtor.com
Homebuilder.com
Remodel.com
Springstreet.com
Springstreet
Homefair.com
Seniorhousing.net
Corporatehousing.net
Move.com
Homeplans.com
Homestyles.com
Rent.net
Rentnet
Welcome Wagon
The School Report
Additionally, AOL Canada will provide HS with the Keyword Search Term:
Homestore.
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
5 CONFIDENTIAL
EXHIBIT D
STANDARD LEGAL TERMS AND CONDITIONS
I. AOL NETWORK
CONTENT. HS represents and warrants to the best of its knowledge and covenants
to use all commercially reasonable efforts to ensure that all Content contained
within the Customized Site and Customized Programming and all Licensed Content,
at the time such Content or Licensed Content is made available by HS, (i)
conforms to the Terms of Service for the applicable AOL Property, the terms of
this Agreement and any other standard, written policy of AOL and any applicable
AOL Property (including without limitation AOL's kids policies to the extent
applicable), (ii) does not infringe on or violate any copyright, trademark, U.S.
patent, rights of publicity or privacy, moral rights or any other third party
right, including without limitation, any music performance or other music
related rights, and (iii) does not contain any Content which violates any
applicable law or regulation ((i), (ii) and (iii) collectively, the "RULES").
Subject to the provisions of Section 1.6 of the Agreement, in the event that AOL
notifies HS in writing that any such Content, as reasonably determined by AOL,
does not comply or adhere to the Rules, then (a) HS shall use commercially
reasonable efforts to remove such Content or block access by AOL Users to such
Content; (b) in the event that HS cannot, remove such Content or block access by
AOL Users to such Content in question, then HS shall provide AOL prompt written
notice of such fact; (c) AOL may, at its option, either (i) restrict access from
the AOL Network to the Content in question using technology available to AOL or
(ii) in the event access cannot be restricted, direct HS to remove any such
Content; and (d) HS will cooperate with AOL's reasonable requests to the extent
AOL elects to implement any such access restrictions.
AOL NETWORK DISTRIBUTION. HS shall not authorize or knowingly permit any third
party to distribute any Content of HS through the AOL Network absent AOL's prior
written approval. The distribution, placements and/or promotions described in
this Agreement or otherwise provided to HS by AOL shall be used by HS solely for
its own benefit, will promote solely the Licensed Content within the Customized
Site or Customized Programming expressly described on Exhibit A or as permitted
in the Agreement and will not be resold, traded, exchanged, bartered, brokered
or otherwise offered or transferred to any third party or contain any branding
other than HS' branding. Further, the Content of all such distribution,
placements and promotions shall be subject to AOL's relevant written policies
that are provided in writing to HS regarding objectionable content (e.g.,
illegal, illicit or unfit for minors) and promotion (provided that such policies
shall not apply to the extent such policies would materially adversely affect
HS' rights under the Agreement).
KIDS AND TEENS POLICIES. At all times, HS shall comply with the applicable AOL
Property's then-standard policies regarding "child designated content." As used
herein, "child designated content" means Content that is designed for: (i) Kids
(children 12 and under), (ii) Young Teens (children ages 13-15), (iii) Mature
Teens (children ages 16-17), and (iv) any combination of Kids, Young Teens, and
Mature Teens. HS shall ensure that all child designated content (including all
advertising in child designated content areas) distributed on or through the
Customized Programming complies with any relevant written AOL policy (Kids,
Young Teens, Mature Teens) that is made available to HS, including any
obligations that such child designated content be marked or tagged so that it
may operate properly in connection with viewing restriction functionality
provided to AOL Users. HS shall ensure that all child designated content
(including all advertising in child designated content areas) distributed on or
through the Customized Site complies with any relevant written AOL policy (Kids,
Young Teens, Mature Teens) as of the Effective Date, including any obligations
that such child designated content be marked or tagged so that it may operate
properly in connection with viewing restriction functionality provided to AOL
Users, and to the extent AOL makes material changes to such policies during the
Term, HS shall make commercially reasonable efforts to comply with any such
revised policies made available to it. Without
CONFIDENTIAL
limiting the generality of the foregoing or any other provision of this
Agreement, HS shall notify AOL in writing whenever it intends to distribute
child designated content for these age groups on or through the Customized
Programming or the Customized Sites to ensure proper age restriction
categorization.
CONTESTS. HS shall ensure that any contest, sweepstakes or similar promotion
conducted or promoted through the Customized Programming (a "CONTEST") complies
with all applicable laws and regulations. HS shall use commercially reasonable
efforts to ensure that any Contest promoted through the Customized Site complies
with all applicable laws and regulations.
DISCLAIMERS. HS agrees to include within the Customized Site and Customized
Programming a disclaimer (the specific form and substance to be mutually agreed
upon by the Parties) indicating that all Licensed Content (including any
products and services) is provided by HS and its licensors, and not AOL, and any
transactions are between HS and AOL Users using or purchasing such Content and
AOL is not responsible for any loss, expense or damage arising out of the
Licensed Content or services provided through the Customized Site or Customized
Programming (e.g., "In no event shall AOL nor any of its agents, employees,
representatives or Affiliates be in any respect legally liable to you or any
third party in connection with any information or services contained herein and
AOL makes no warranty or guaranty as to the accuracy, completeness, correctness,
timeliness, or usefulness of any of the information contained herein"). HS shall
not in any manner state or imply that AOL recommends or endorses HS or its
Content. Within Shop@AOL, with respect to any AOL Users who access Shop@AOL
through the Customized Sites or the Customized Programming, AOL agrees to
include a similar disclaimer that excuses HS from liability with respect to any
transactions conducted on Shop@AOL.
EXPERT/SPECIALIST CONTENT. If any of the Licensed Content professes to provide
expert, professional or other specialty advice or Content (such as, without
limitation, medical or psychological, religious, financial, etc.), HS shall use
commercially reasonable efforts to ensure that all such Licensed Content is
prepared or reviewed by licensed, insured and qualified
practitioners/professionals in such field with expertise on the particular topic
and such Licensed Content complies with applicable standards of the applicable
profession and all applicable laws and regulations. Upon request by AOL from
time to time, HS shall provide AOL with evidence reasonably satisfactory to AOL
of compliance with the foregoing sentence.
INSURANCE. At all times during the Term, HS shall maintain an insurance policy
or policies reasonably satisfactory to AOL and adequate in amount to insure HS
against all liability associated with the Licensed Content. HS shall include AOL
as an additional insured party on such policy or policies. If requested by AOL
in writing, HS shall provide AOL with a copy of such policy or policies within
thirty (30) days after such request, failing which, in addition to all other
available remedies, AOL shall be entitled to delay the launch of the Licensed
Content on the AOL Network (and reduce AOL's promotional and Impressions
obligations proportionately). HS shall promptly notify AOL of any material
change in such policy or policies.
REWARDS PROGRAMS. HS shall not offer, provide, implement or otherwise make
available on the Customized Site or Customized Programming any promotional
programs or plans that are intended to provide customers with rewards or
benefits in exchange for, or on account of, their past or continued loyalty to,
or patronage or purchase of, the products or services of HS or any third party
(e.g., a promotional program similar to a "frequent flier" program), unless such
promotional program or plan is provided exclusively through AOL's "AOL Rewards"
program, accessible on the AOL Service at Keyword: "AOL Rewards."
NAVIGATION. In cases where an AOL User performs a search for HS through any
search or navigational tool or mechanism that is accessible or available through
the AOL Network (e.g., promotions, Keyword Search Terms, navigation bars or any
other promotions or navigational tools), AOL shall have the right to direct such
AOL User to the Customized Site, or any other Generally Available Site
determined by AOL in its reasonable discretion. HS shall ensure that navigation
back to the AOL Network from the Customized Site (and from any other Generally
Available Site linked to from the AOL Network), whether through a particular
pointer or link, the "back" button on an Internet browser, the closing of an
active window, or any other return
2 CONFIDENTIAL
mechanism, shall not be interrupted by HS through the use of any intermediate
screen or other device not specifically requested by the user, including without
limitation through the use of any html pop-up window or any other similar
device.
CLIENT ALTERATIONS. HS shall not knowingly include on the Customized Site or
Customized Programming any downloadable software or other mechanism that allows
users to alter the navigation, user interface, look and feel, or any other
element of any AOL or AOL Affiliate client software or software that is bundled
therewith (including, without limitation, the Internet browsers).
AOL LOOK AND FEEL. HS acknowledges and agrees that AOL shall own all right,
title and interest in and to the AOL Look and Feel. In addition, AOL shall
retain editorial control over the portions of the AOL pages and forms which
frame the Customized Site or Customized Programming, if any, (the "AOL FRAMES")
subject to the provisions of this Agreement. Subject to the requirements of
Section 5 of this Agreement, AOL may, at its discretion, incorporate
navigational icons, links and pointers or other Content into such AOL Frames, if
any.
HS LOOK AND FEEL. AOL acknowledges and agrees that HS shall own all right, title
and interest in and to the HS Look and Feel.
OPERATIONS. AOL shall be entitled to require reasonable changes to the
Customized Site and Customized Programming that are generally required of AOL's
Content providers to the extent such site will, in AOL's good faith judgment,
adversely affect the technical operations of the AOL Network. AOL shall provide
notice to HS of any specific sites or events on such sites that adversely affect
the technical operations of the AOL Network.
AUCTIONS. HS shall not conduct any merchandising (other than auctions of real
property) through the Customized Site or Customized Programming through auctions
or any method other than a direct sales format without AOL's prior written
consent.
MESSAGE BOARDS; CHAT ROOMS AND COMPARABLE VEHICLES. Any Content submitted by HS
or its agents within message boards, chat rooms or any comparable vehicles on
the Customized Site and Customized Programming will be subject to the license
grant relating to submissions to "public areas" set forth in the AOL Terms of
Service. HS acknowledges that it has no rights or interest in AOL User
submissions to message boards, chat rooms or any other vehicles through which
AOL Users may make submissions within the AOL Network. HS will refrain from
editing, deleting or altering, without AOL's prior approval, any opinion
expressed or submission made by an AOL User within Customized Programming except
in cases where HS has a good faith belief that the Content in question violates
an applicable law, regulation, third party right or the applicable AOL
Property's Terms of Service.
DUTY TO INFORM. HS and AOL shall promptly inform the other Party of any
information related to the Customized Site, Customized Programming or the
Licensed Content which it believes will reasonably lead to a claim, demand or
liability of or against AOL and/or its Affiliates or HS and/or its Affiliates by
any third party.
RESPONSE TO QUESTIONS/COMMENTS; CUSTOMER SERVICE. HS shall respond promptly and
professionally to questions, comments, complaints and other reasonable requests
regarding the Customized Site, Customized Programming or the Licensed Content by
AOL Users or on request by AOL, and shall cooperate and assist AOL in promptly
answering the same. HS shall have sole responsibility for customer service
(including, without limitation, order processing, billing, shipping, etc.)
regarding the Customized Site, Customized Programming or the Licensed Content
and AOL shall have no responsibility with respect thereto. HS shall not have any
responsibilities under this paragraph with respect to Content included in
Shop@AOL other than the Customized Programming and Licensed Content. HS and AOL
shall each comply with all applicable requirements of any federal, state or
local consumer protection or disclosure law.
PRODUCTION WORK. In the event that HS requests any AOL production assistance, HS
shall work with AOL to develop detailed production plans for the requested
production assistance (the "PRODUCTION PLAN"). Following receipt of the final
Production Plan, AOL shall notify HS of (i) AOL's availability to perform the
requested production work, (ii) the proposed fee or fee structure for the
requested production work and (iii) the estimated development schedule for such
work. To the extent the Parties
3 CONFIDENTIAL
reach agreement regarding implementation of agreed-upon Production Plan, such
agreement shall be reflected in a separate work order signed by the Parties. All
fees to be paid to AOL for any such production work shall be paid pursuant to
the terms of the applicable work order. To the extent HS elects to retain a
third party provider to perform any such production work, work produced by such
third party provider must generally conform to AOL's production standards
available at Keyword "Styleguide." The specific production resources which AOL
allocates to any production work to be performed on behalf of HS shall be as
determined by AOL in its sole discretion. With respect to any routine
production, maintenance or related services which AOL reasonably determines are
necessary for AOL to perform in order to support the proper functioning and
integration of the Promotions, Customized Programming and the Customized Site
("ROUTINE SERVICES"), HS will pay the then-standard fees charged by AOL for such
Routine Services.
PRODUCTION TOOLS. AOL shall provide to HS those of it's proprietary publishing
tools (each a "PUBLISHING TOOL") necessary for HS to comply with the
requirements of the Programming Plan in order to develop and implement the
Licensed Content during the Term. HS shall determine, in its reasonable
discretion and consistent with the Programming Plan, which Publishing Tool(s) to
utilize and shall be granted a nonexclusive license during the Term to use any
such Publishing Tool(s), which license shall be subject to: (i) HS' compliance
with all rules and regulations relating to use of the Publishing Tools, as
published from time to time by AOL, (ii) AOL's right to withdraw or modify such
license at any time, and (iii) HS' express recognition that AOL provides all
Publishing Tools on an "as is" basis, without warranties of any kind.
TRAINING AND SUPPORT. AOL shall make available to HS standard AOL training and
support programs necessary to produce any AOL areas hereunder. HS can select its
training and support program from the options then offered by AOL. HS shall be
responsible to pay the fees associated with its chosen training and support
package. In addition, HS will pay travel and lodging costs associated with its
participation in any AOL training programs (including AOL's reasonable travel
and lodging costs when training is conducted at HS' offices).
KEYWORDS. Any Keyword Search Terms to be directed to the Customized Site shall
be (i) subject to availability for use by HS and (ii) limited to the combination
of the Keyword(TM) search modifier combined with a trademark of HS and any
Keyword Search Terms granted to HS during the Term of the Agreement. AOL
reserves the right to revoke HS' use of any Keyword Search Terms which do not
incorporate trademarks of HS upon [*] days written notice (or a shorter time
period if continued use by HS of any such Keyword Search Term may expose AOL to
liability). HS acknowledges that its utilization of a Keyword Search Term will
not create in it, nor will it represent it has, any right, title or interest in
or to such Keyword Search Term, other than the right, title and interest HS
holds in HS' registered trademark independent of the Keyword Search Term.
Without limiting the generality of the foregoing, HS will not: (a) attempt to
register or otherwise obtain trademark or copyright protection in the Keyword
Search Term; or (b) use the Keyword Search Term, except for the purposes
expressly required or permitted under this Agreement. This Section shall survive
the completion, expiration, termination or cancellation of this Agreement.
ACCOUNTS. To the extent AOL has granted HS any accounts on the AOL Service, HS
will be responsible for the actions taken under or through its accounts, which
actions are subject to AOL's applicable Terms of Service and for any surcharges,
including, without limitation, all premium charges, transaction charges, and any
applicable communication surcharges incurred by any account issued to HS, but HS
will not be liable for charges incurred by any account relating to AOL's
standard monthly usage fees and standard hourly charges, which charges AOL will
bear. Upon the termination of this Agreement, all accounts, related screen names
and any associated usage credits or similar rights, will automatically
terminate. AOL will have no liability for loss of any data or content related to
the proper termination of any such account.
II. TRADEMARKS
TRADEMARK LICENSE. In designing and implementing any marketing, advertising, or
other promotional materials (expressly excluding Press Releases) related to this
Agreement and/or referencing the other Party and/or its trade names, trademarks
and service marks (the "PROMOTIONAL
- ----------
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
4 CONFIDENTIAL
MATERIALS") and subject to the other provisions contained herein: HS shall be
entitled to use the following trade names, trademarks and service marks of AOL:
the "America Online(R)" brand service, "AOL(TM)" service/software and AOL's
triangle logo and, and the applicable trade names, trademarks and service marks
of AOL and its Affiliates relating to the AOL Properties in connection
therewith; HS shall comply with the AOL styleguide available at keyword:
"Styleguide"; and AOL and its Affiliates shall be entitled to use the trade
names, trademarks and service marks of HS and its Affiliates relating to the
Customized Sites and Customized Programming (collectively, together with the AOL
marks listed above, the "MARKS"); provided that each Party: (i) does not create
a unitary composite mark involving a Mark of the other Party without the prior
written approval of such other Party, (ii) displays symbols and notices clearly
and sufficiently indicating the trademark status and ownership of the other
Party's Marks in accordance with applicable trademark law and practice, and
(iii) complies with all written guidelines provided to it by the other Party
related to use of the other Party's Marks. This Section other than the grant of
licenses herein, shall survive the completion, expiration, termination or
cancellation of this Agreement.
RIGHTS. Each Party acknowledges the ownership right of the other Party in the
Marks of the other Party and agrees that all use of the other Party's Marks will
inure to the benefit, and be on behalf, of the other Party. Each Party
acknowledges that its utilization of the other Party's Marks will not create in
it, nor will it represent it has, any right, title or interest in or to such
Marks other than the licenses expressly granted herein. Each Party agrees not to
do anything contesting or impairing the trademark rights of the other Party.
QUALITY STANDARDS. Each Party agrees that the nature and quality of its products
and services supplied in connection with the other Party's Marks shall conform
to quality standards communicated in writing by the other Party for use of its
trademarks. Each Party agrees to supply the other Party, upon request, with a
reasonable number of samples of any Materials publicly disseminated by such
Party which utilize the other Party's Marks. Each Party shall comply with all
applicable laws, regulations and customs and obtain any required government
approvals pertaining to use of the other Party's Marks.
PROMOTIONAL MATERIALS. Each Party will submit to the other Party, for its prior
written approval, which shall not be unreasonably withheld or delayed, any
Promotional Materials (excluding Press Releases) related to the Customized Sites
and/or referencing the other Party and/or its trade names, trademarks, and
service marks; provided, however, that either Party's use of screen shots of the
Customized Site for promotional purposes will not require the approval of the
other Party; and provided further, however, that, following the initial public
announcement of the business relationship between the Parties in accordance with
the approval and other requirements contained herein, either Party's subsequent
factual reference to the existence of a business relationship between the
Parties in Promotional Materials will not require the approval of the other
Party. Each Party will solicit and reasonably consider the views of the other
Party in designing and implementing such Promotional Materials. Once approved,
the Promotional Materials may be used by a Party and its affiliates for the
purpose of promoting the Customized Site and the Content contained therein and
reused for such purpose until such approval is withdrawn with reasonable prior
notice. In the event such approval is withdrawn, existing inventories of
Promotional Materials may be depleted.
INFRINGEMENT PROCEEDINGS. Each Party agrees to promptly notify the other Party
of any unauthorized use of the other Party's Marks of which it has actual
knowledge. Each Party shall have the sole right and discretion to bring
proceedings alleging infringement of its Marks or unfair competition related
thereto; provided, however, that each Party agrees to provide the other Party,
at such other Party's expense, with its reasonable cooperation and assistance
with respect to any such infringement proceedings.
III. REPRESENTATIONS AND WARRANTIES
Each Party represents and warrants to the other Party that: (i) such Party has
the full corporate right, power and authority to enter into this Agreement, to
grant the licenses granted hereunder and to perform the acts required of it
hereunder; (ii) the execution of this Agreement by such Party, and the
performance by such Party of its obligations and duties hereunder, do not and
will not violate any agreement to which such Party is a party or by which it is
5 CONFIDENTIAL
otherwise bound; (iii) when executed and delivered by such Party, this Agreement
will constitute the legal, valid and binding obligation of such Party,
enforceable against such Party in accordance with its terms; (iv) to its best
knowledge, such Party's Promotional Materials will neither infringe on any
copyright, U.S. patent or any other third party right nor violate any applicable
law or regulation; and (v) such Party acknowledges that the other Party makes no
representations, warranties or agreements related to the subject matter hereof
which are not expressly provided for in this Agreement.
IV. CONFIDENTIALITY
Each Party acknowledges that Confidential Information may be disclosed to the
other Party during the course of this Agreement. Each Party agrees that it will
take reasonable steps, at least substantially equivalent to the steps it takes
to protect its own proprietary information, during the term of this Agreement,
and for a period of three years following expiration or termination of this
Agreement, to prevent the disclosure of Confidential Information of the other
Party, other than to its employees, or to its other agents who must have access
to such Confidential Information for such Party to perform its obligations
hereunder, who will each agree to comply with this section. Notwithstanding the
foregoing, either Party may issue a press release or other disclosure containing
Confidential Information without the consent of the other Party, to the extent
such disclosure is required by law, rule, regulation or government or court
order or as reasonably advised by legal counsel. In such event, the disclosing
Party will provide at least five (5) business days prior written notice of such
proposed disclosure to the other Party. Further, in the event such disclosure is
required of either Party under the laws, rules or regulations of the Securities
and Exchange Commission or any other applicable governing body, such Party will
(i) redact mutually agreed-upon portions of this Agreement to the fullest extent
permitted under applicable laws, rules and regulations and (ii) submit a request
to such governing body that such portions and other provisions of this Agreement
receive confidential treatment under the laws, rules and regulations of the
Securities and Exchange Commission or otherwise be held in the strictest
confidence to the fullest extent permitted under the laws, rules or regulations
of any other applicable governing body. Notwithstanding the foregoing, AOL shall
be permitted to disclose this Agreement and any Confidential Information to AOL
Canada, Inc.
V. RELATIONSHIP WITH AOL USERS
SOLICITATION OF SUBSCRIBERS. (a) Except as otherwise provided in the main body
of the Agreement, during the Term of this Agreement and for a two year period
thereafter, HS will not use the AOL Network (including, without limitation, the
e-mail network contained therein) to solicit AOL Users on behalf of another
Interactive Service. More generally, HS will not send unsolicited, commercial
e-mail (i.e., "spam") or other online communications through or into AOL's
products or services, absent a Prior Business Relationship. For purposes of this
Agreement, a "PRIOR BUSINESS RELATIONSHIP" will mean that the AOL User to whom
commercial e-mail or other online communication is being sent has voluntarily
either (i) engaged in a transaction with HS or (ii) provided information to HS
through a contest, registration, or other communication, which included clear
notice to the AOL User that the information provided could result in commercial
e-mail or other online communications being sent to that AOL User by HS, its
Affiliates or their respective agents. Any commercial e-mail or other online
communications to AOL Users which are otherwise permitted hereunder will (x)
include a prominent and easy means to "opt-out" of receiving any future
commercial communications from HS and (y) shall also be subject to AOL's
then-standard restrictions on distribution of bulk e-mail (e.g., related to the
time and manner in which such e-mail can be distributed through or into the AOL
product or service in question).
(b) HS and AOL shall ensure that their respective collection, use and disclosure
of information obtained from AOL Users under this Agreement ("MEMBER
INFORMATION") complies with (i) all applicable laws and regulations and (ii)
AOL's standard privacy policies, available on the AOL Service at the keyword
term "Privacy" (or, in the case of the Customized Site, HS' standard privacy
policies so long as such policies are published on the site and provide adequate
notice, disclosure and choice to users regarding HS' collection, use and
disclosure of user information). HS will not disclose Member Information
collected hereunder to any third party in a manner that identifies AOL Users as
end users of an AOL product or service or use Member
6 CONFIDENTIAL
Information collected under this Agreement to market another Interactive
Service.
EMAIL NEWSLETTERS. Any email newsletters sent to AOL Users by HS or its agents
shall (i) be subject to AOL's then current policies on use of the email
functionality, including but not limited to AOL's then current 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 third-party Interactive Service.
AOL USER COMMUNICATIONS. To the extent HS is otherwise permitted to send
communications to AOL Users (in accordance with the other requirements contained
herein) in any such communications to AOL Users on or off the Customized Sites
(including, without limitation, e-mail solicitations), HS will not encourage AOL
Users to take any action inconsistent with the scope and purpose of this
Agreement, including without limitation, the following actions: (i) using an
interactive site other than the Customized Site for the purchase of Products,
(ii) using Content other than the Licensed Content; (iii) bookmarking of
interactive sites; or (iv) changing the default home page on the AOL browser.
Additionally, with respect to such AOL User communications, in the event that HS
encourages an AOL User to purchase Products through such communications, HS
shall ensure that (a) the AOL Network is promoted as the primary means through
which the AOL User can access the Customized Site and (b) any link to the
Customized Site will link to a page which indicates to the AOL User that such
user is in a site which is affiliated with the AOL Network.
VI. TREATMENT OF CLAIMS
LIABILITY. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES
(EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES),
ARISING FROM BREACH OF THIS AGREEMENT, THE USE OF OR INABILITY TO USE THE
LICENSED CONTENT, THE CUSTOMIZED SITE, THE CUSTOMIZED PROGRAMMING, THE GENERALLY
AVAILABLE SITES OR THE AOL NETWORK OR ANY OTHER PROVISION OF THIS AGREEMENT,
SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST
BUSINESS (COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY SHALL
REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE
CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION BELOW. EXCEPT AS
PROVIDED BELOW IN THE "INDEMNITY" SECTION, NEITHER PARTY SHALL BE LIABLE TO THE
OTHER PARTY FOR MORE THAN THE AGGREGATE AMOUNTS PAYABLE HEREUNDER IN THE YEAR IN
WHICH THE EVENT GIVING RISE TO SUCH LIABILITY OCCURRED; PROVIDED THAT EACH PARTY
SHALL REMAIN LIABLE FOR THE AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO
THE OTHER PARTY UNDER THE PROVISIONS OF THIS AGREEMENT, SUBJECT TO ANY DEFENSES
TO PAYMENT.
NO ADDITIONAL WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED
CONTENT, CUSTOMIZED SITE, THE CUSTOMIZED PROGRAMMING, THE GENERALLY AVAILABLE
SITES, THE AOL NETWORK, THE AOL TOOLS, OR THE PUBLISHING TOOLS, INCLUDING ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND
IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EACH PARTY SPECIFICALLY
DISCLAIMS ANY WARRANTY REGARDING THE PROFITABILITY OF AOL NETWORK OR THE
CUSTOMIZED SITE.
INDEMNITY. Each Party will defend, indemnify, save and hold harmless the other
Party and the officers, directors, agents, Affiliates, distributors, franchisees
and employees of the other Party from any and all third party claims, demands,
liabilities, costs or expenses, including reasonable attorneys' fees
("LIABILITIES"), resulting from the indemnifying Party's material breach or
alleged breach of any obligation, representation, or warranty of this Agreement.
In addition, HS will defend, indemnify, save and hold harmless AOL and AOL's
officers,
7 CONFIDENTIAL
directors, agents, Affiliates, distributors, franchisees and employees from any
and all Liabilities arising out of or in any way related to the Licensed
Content, including any allegation of or actual infringement of any third party's
intellectual property rights by Content on the Customized Programming or the
Customized Sites, except to the extent any such Liabilities are caused by AOL's
acts or omissions. AOL will defend, indemnify, save and hold harmless HS and HS'
officers, directors, agents, Affiliates, distributors, franchisees and employees
from any and all Liabilities arising out of or related to HS' use of the AOL
Tools in accordance with this Agreement, except to the extent the use of the AOL
Tools is governed by a separate agreement mutually entered into by the Parties.
If a Party entitled to indemnification hereunder (the "INDEMNIFIED PARTY")
becomes aware of any matter it believes is indemnifiable hereunder involving any
claim, action, suit, investigation, arbitration or other proceeding against the
Indemnified Party by any third party (each an "ACTION"), the Indemnified Party
shall give the other Party (the "INDEMNIFYING PARTY") prompt written notice of
such Action. Such notice shall (i) provide the basis on which indemnification is
being asserted and (ii) be accompanied by copies of all relevant pleadings,
demands, and other papers related to the Action and in the possession of the
Indemnified Party. The Indemnifying Party shall have a period of ten (10) days
after delivery of such notice to respond. If the Indemnifying Party elects to
defend the Action or does not respond within the requisite ten (10) day period,
the Indemnifying Party shall be obligated to defend the Action, at its own
expense, and by counsel reasonably satisfactory to the Indemnified Party. The
Indemnified Party shall cooperate, at the expense of the Indemnifying Party,
with the Indemnifying Party and its counsel in the defense and the Indemnified
Party shall have the right to participate fully, at its own expense, in the
defense of such Action. If the Indemnifying Party responds within the required
ten (10) day period and elects not to defend such Action, the Indemnified Party
shall be free, without prejudice to any of the Indemnified Party's rights
hereunder, to compromise or defend (and control the defense of) such Action. In
such case, the Indemnifying Party shall cooperate, at its own expense, with the
Indemnified Party and its counsel in the defense against such Action and the
Indemnifying Party shall have the right to participate fully, at its own
expense, in the defense of such Action. Any compromise or settlement of an
Action shall require the prior written consent of both Parties hereunder, such
consent not to be unreasonably withheld or delayed.
ACKNOWLEDGMENT. AOL AND HS EACH ACKNOWLEDGES THAT THE PROVISIONS OF THIS
AGREEMENT WERE NEGOTIATED TO REFLECT AN INFORMED, VOLUNTARY ALLOCATION BETWEEN
THEM OF ALL RISKS (BOTH KNOWN AND UNKNOWN) ASSOCIATED WITH THE TRANSACTIONS
CONTEMPLATED HEREUNDER. THE LIMITATIONS AND DISCLAIMERS RELATED TO WARRANTIES
AND LIABILITY CONTAINED IN THIS AGREEMENT ARE INTENDED TO LIMIT THE
CIRCUMSTANCES AND EXTENT OF LIABILITY. THE PROVISIONS OF THIS SECTION VI SHALL
BE ENFORCEABLE INDEPENDENT OF AND SEVERABLE FROM ANY OTHER ENFORCEABLE OR
UNENFORCEABLE PROVISION OF THIS AGREEMENT.
VII. ARBITRATION
(a) Management Committee. The Parties will act in good faith and use
commercially reasonable efforts to promptly resolve any claim, dispute,
controversy or disagreement (each a "DISPUTE") between the Parties or any of
their respective subsidiaries, affiliates, successors and assigns arising under,
in connection with or related to this Agreement or any document executed
pursuant to this Agreement or any of the transactions contemplated hereby.or any
document executed pursuant to this Agreement or any of the transactions
contemplated hereby. If the Parties cannot promptly resolve the Dispute, the
Dispute will be submitted in writing 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 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 for a period of thirty (30) days 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
8 CONFIDENTIAL
mediator within such thirty (30) day period, 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 VII and generally overseeing the
relationship between the Parties contemplated by this Agreement. Neither Party
will seek, nor will be entitled to seek, binding outside resolution of the
Dispute unless and until the Parties have been unable amicably to resolve the
Dispute as set forth in this Section VII(a) and then, only in compliance with
the procedures set forth in the remainder of this Section VII.
(b) Arbitration. Except for Disputes relating to issues of proprietary rights,
including but not limited to intellectual property and confidentiality, any
Dispute not resolved by amicable resolution as set forth in Section VII(a) will
be governed exclusively and finally by arbitration. Such arbitration will be
conducted by JAMS, or if not possible, another comparable ADR/arbitration
company, in Washington, D.C. and will be initiated and conducted in accordance
with the Commercial Arbitration Rules ("COMMERCIAL RULES") of JAMS, including
any supplementary procedures applicable to 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 in writing 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.
(c) Selection of Arbitrators. The arbitration panel will consist of three
arbitrators. Each Party will name an arbitrator to be selected from the
JAMS-approved list of arbitrators within ten (10) days after the delivery of the
Demand. The arbitrators should be neutral participants, with no prior
relationship of any kind with either Party that may create a conflict of
interest. Each Party will select one arbitrator, and the third arbitrator should
be selected by the first two arbitrators. If the two arbitrators are unable to
select a third arbitrator within ten (10) days, a third neutral arbitrator will
be appointed by JAMS from its panel of commercial arbitrators for large and
complex cases . Similarly, if either party objects to the selection of any
arbitrator because of an identifiable conflict of interest and the Parties are
unable to resolve the dispute within ten (10) days, then a replacement
arbitrator will be appointed by JAMS from its panel of commercial arbitrators
for large and complex cases. 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. If the Parties so desire, the Parties may agree to
proceed with arbitration with one arbitrator upon mutual agreement.
(d) Governing Law. The Federal Arbitration Act, 9 U.S.C. Secs. 1-16, and not
state law, will govern the arbitrability of all Disputes. The arbitrators will
allow such discovery as is appropriate to the purposes of arbitration in
accomplishing a fair, speedy and cost-effective resolution of the Disputes. The
arbitrators will reference the Federal Rules of Civil Procedure then in effect
in setting the scope and timing of discovery. The Federal Rules of Evidence will
apply in toto. The arbitrators may enter a default decision against any Party
who fails to participate in the arbitration proceedings.
(e) Arbitration Awards. The arbitrators will have the authority to award
compensatory damages only. Any award by the arbitrators will be accompanied by a
written opinion setting forth the findings of fact and conclusions of law relied
upon in reaching the decision. Judgment upon the 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.
(f) Fees. Each Party will pay the fees of its own attorneys, expenses of
witnesses and all other expenses and costs in connection with the presentation
of such Party's case (collectively, "ATTORNEYS' FEES"). The remaining costs of
the arbitration, including without limitation, fees of the arbitrators, costs of
records or transcripts and administrative fees (collectively, "ARBITRATION
COSTS") will be borne equally by the Parties. Notwithstanding the foregoing, the
arbitrators may modify the allocation of Arbitration Costs and award Attorneys'
Fees in those cases where fairness
9 CONFIDENTIAL
dictates a different allocation of Arbitration Costs between the Parties or an
award of Attorneys' Fees to the prevailing Party as determined to be appropriate
by the arbitrators.
(g) Non Arbitratable Disputes. Any Dispute that is not subject to final
resolution by the Management Committee or to arbitration under this Section VII
(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.
VIII. MISCELLANEOUS
AUDITING RIGHTS. Each Party shall maintain complete, clear and accurate records
of all expenses, revenues, fees, transactions and related documentation
(including agreements) in connection with the performance of this Agreement
("RECORDS"). All such Records shall be maintained for a minimum of five (5)
years following termination of this Agreement. For the sole purpose of ensuring
compliance with this Agreement, each of HS and AOL shall have the right, at its
expense, to direct an independent certified public accounting firm subject to
strict confidentiality restrictions to conduct a reasonable and necessary
copying and inspection of portions of the Records of the other Party that are
directly related to amounts payable to HS or AOL pursuant to this Agreement. Any
such audit may be conducted after twenty (20) business days prior written
notice, subject to the following: Such audits shall not be made more frequently
than once every twelve months.
EXCUSE. Neither Party shall be liable for, or be considered in breach of or
default under this Agreement on account of, any delay or failure to perform as
required by this Agreement as a result of any causes or conditions which are
beyond such Party's reasonable control and which such Party is unable to
overcome by the exercise of reasonable diligence. Without limiting the
generality of the foregoing, AOL's Promotion commitments hereunder are subject
to the prior timely receipt from HS of Licensed Content for such Promotion which
complies with all applicable terms of this Agreement and any standard written
policies of AOL.
INDEPENDENT CONTRACTORS. The Parties to this Agreement are independent
contractors. Neither Party is an agent, representative or partner of the other
Party. Neither Party shall have any right, power or authority to enter into any
agreement for or on behalf of, or incur any obligation or liability of, or to
otherwise bind, the other Party. This Agreement shall not be interpreted or
construed to create an association, agency, joint venture or partnership between
the Parties or to impose any liability attributable to such a relationship upon
either Party.
NOTICE. Any notice, approval, request, authorization, direction or other
communication under this Agreement will be given in writing and will be deemed
to have been delivered and given for all purposes (a) on the delivery date if
delivered by confirmed facsimile or, in the case of AOL, by electronic mail on
the AOL Network (to screenname "[*]"; (ii) on the delivery date if delivered
personally to the Party to whom the same is directed; or (iii) one business day
after deposit with a commercial overnight carrier, with written verification of
receipt; or (iv) on the date of receipt if sent by registered or certified mail.
In the case of AOL, such notice will be provided to both the Vice President,
Interactive Marketing Business Development (fax no. [*]) and the Deputy General
Counsel (fax no. [*]), each at the address of AOL set forth in the first
paragraph of this Agreement. In the case of HS, except as otherwise specified
herein, such notice will be provided to the Vice President General Counsel and
the Senior Vice President Business Development and the notice address shall be
the address for HS set forth in the first paragraph of this Agreement.
Notwithstanding the foregoing, no notice related to the breach or termination of
this Agreement will be deemed to have been delivered and given if delivered by
electronic mail.
NO WAIVER. The failure of either Party to insist upon or enforce strict
performance by the other Party of any provision of this Agreement or to exercise
any right under this Agreement shall not be construed as a waiver or
relinquishment to any extent of such Party's right to assert or rely upon any
such provision or right in that or any other instance;
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[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
10 CONFIDENTIAL
rather, the same shall be and remain in full force and effect.
RETURN OF INFORMATION. Upon the expiration or termination of this Agreement,
each Party shall, upon the written request of the other Party, return or destroy
(at the option of the Party receiving the request) all Confidential Information,
documents, manuals and other materials specified by the other Party.
SURVIVAL. Sections IV, V, VI, VII and VIII of this Exhibit D, shall survive the
completion, expiration, termination or cancellation of this Agreement. In
addition, all payment terms of this Agreement shall survive with regard to any
accrued payments due and owing before completion, expiration, termination or
cancellation of this Agreement, and any provision that expressly states that it
shall survive or which, by its nature, must survive the completion, expiration,
termination or cancellation of this Agreement, shall survive the completion,
expiration, termination or cancellation of this Agreement.
ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and supersedes
any and all prior agreements of the Parties with respect to the transactions set
forth herein. Neither Party shall be bound by, and each Party specifically
objects to, any term, condition or other provision which is different from or in
addition to the provisions of this Agreement (whether or not it would materially
alter this Agreement) and which is proffered by the other Party in any
correspondence or other document, unless the Party to be bound thereby
specifically agrees to such provision in writing.
AMENDMENT. No change, amendment or modification of any provision of this
Agreement shall be valid unless set forth in a written instrument signed by the
Party subject to enforcement of such amendment.
FURTHER ASSURANCES. Each Party shall take such action (including, but not
limited to, the execution, acknowledgment and delivery of documents) as may
reasonably be requested by the other Party for the implementation or continuing
performance of this Agreement.
ASSIGNMENT. Neither Party shall assign this Agreement or any right, interest or
benefit under this Agreement without the prior written consent of the other
Party. Except as provided below, assumption of this Agreement by any successor
of a Party (including, without limitation, by way of merger, consolidation or
sale of all or substantially all of HS' stock or assets) shall be subject to the
other Party's prior written approval. Notwithstanding the foregoing, HS shall
have the right to assign this agreement to an entity controlling, controlled by,
or under common control with HS as part of an internal corporate reorganization
without the prior written approval of AOL. Subject to the foregoing, this
Agreement shall be fully binding upon, inure to the benefit of and be
enforceable by the Parties hereto and their respective successors and assigns.
SUBCONTRACTORS. Each Party shall be responsible for ensuring that all of its
consultants and subcontractors comply with this Agreement and such Party shall
be liable for any breaches of this Agreement caused by any of its consultants or
subcontractors.
CONSTRUCTION; SEVERABILITY. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be construed or if any
such provision is held invalid by a court with jurisdiction over the Parties to
this Agreement, (i) such provision shall be deemed to be restated to reflect as
nearly as possible the original intentions of the Parties in accordance with
applicable law, and (ii) the remaining terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect.
REMEDIES. Except where otherwise specified, the rights and remedies granted to a
Party under this Agreement are cumulative and in addition to, and not in lieu
of, any other rights or remedies which the Party may possess at law or in
equity.
APPLICABLE LAW. This Agreement shall be interpreted, construed and enforced in
all respects in accordance with the laws of the Commonwealth of Virginia except
for its conflicts of laws principles.
EXPORT CONTROLS. Both Parties shall adhere to all applicable laws, regulations
and rules relating to the export of technical data and shall not export or
re-export any technical data, any products received from the other Party or the
direct product of such technical data to any proscribed country listed in such
applicable laws, regulations and rules unless properly authorized.
11 CONFIDENTIAL
HEADINGS. The captions and headings used in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
COUNTERPARTS. This Agreement may be executed in counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same document. Signatures sent by facsimile shall be deemed original
signatures.
12 CONFIDENTIAL
EXHIBIT E
AOL LOOK AND FEEL
INTENTIONALLY DELETED
CONFIDENTIAL
EXHIBIT F
TECHNICAL OPERATING STANDARDS
1. Customized Site Infrastructure. HS will be responsible for all
communications, hosting and connectivity costs and expenses associated
with the Customized Site. HS will provide all hardware, software,
telecommunications lines and other infrastructure necessary to meet
traffic demands on the Customized Site from the AOL Network. HS will
design and implement the infrastructure and network between the AOL
Network and Customized Site such that (i) no single component failure over
which HS exercises control will have a materially adverse impact on AOL
Users seeking to reach the Customized Site from the AOL Network and (ii)
sufficient bandwidth is maintained to handle sustained load and regular
spikes in traffic. In the event that HS elects to create a custom version
of the Customized Site in order to comply with the terms of this
Agreement, HS will bear responsibility for all aspects of the
implementation, management and cost of such customized site.
2. Optimization; Speed. HS will use commercially reasonable efforts to ensure
that: (a) the functionality and features within the Customized Site are
optimized for the client software then in use by AOL Members; and (b) the
Customized Site is designed and populated in a manner that minimizes
delays when AOL Users attempt to access such site. At a minimum, HS will
ensure that the Customized Site's data transfers initiate within fewer
than [*] ([*]) seconds on average, excluding HS feeds to AOL DCI. Prior to
commercial launch of any material promotions described herein, HS will
permit AOL to conduct performance, load and browser compatibility testing
of the Customized Site (in person or through remote communications), with
such commercial launch not to commence until such time as AOL is
reasonably satisfied with the results of any such testing.
3. Technical Problems. HS agrees to use commercially reasonable efforts to
address material technical problems (over which HS exercises control)
affecting use by AOL Users of the Customized Site (a "HS Technical
Problem") promptly following notice thereof. In the event of a HS
Technical Problem (including, without limitation, infrastructure
deficiencies producing user delays), AOL will have the right to regulate
the promotions it provides to HS hereunder until such time as HS corrects
the HS Technical Problem at issue.
4. Monitoring. HS will ensure that the performance and availability of the
Customized Site is monitored on a continuous basis. HS will provide AOL
with contact information (including e-mail, phone, pager and fax
information, as applicable, for both during and after business hours) for
HS's principal business and technical representatives, for use in cases
when issues or problems arise with respect to the Customized Site.
5. Telecommunications. Where applicable, HS will utilize encryption
methodology to secure data communications between the Parties' data
centers.
6. Security. On non-email transfers HS will utilize Internet standard
encryption technologies (e.g., Secure Socket Layer - SSL) to provide a
secure environment for conducting transactions and/or transferring private
AOL User information (e.g. credit card numbers, banking/financial
information, and user address information) to and from the Customized
Site. AOL may periodically conduct reviews of the Customized site (hosting
infrastructure) in conjunction with, and facilitated by, HS in order to
evaluate any potential security risks of such site. HS will use
commercially reasonable efforts to promptly remedy any security risks or
breaches of security as may be identified.
7. Technical Performance.
i. HS will design the Customized Site to support the AOL-client
embedded versions of the Microsoft Internet Explorer 4.5 and higher
(Windows and Macintosh)and the Netscape Browser 4.7and 6.XX and make
commercially reasonable efforts to support all other AOL browsers
listed at: "http://webmaster.info.aol.com."
ii. To the extent HS creates customized pages on the Customized Site for
AOL Members, HS shall develop and employ a methodology to detect AOL
Members.
iii. HS will periodically review the technical information made available
by AOL at http://webmaster.info.aol.com.
iv. HS will design its site to support HTTP 1.0, 1.1 or later protocol
as defined in RFC 1945 and to adhere to AOL's parameters for
refreshing or preventing the caching of information in AOL's proxy
system as outlined in the document provided at the following URL:
http://webmaster.info.aol.com. HS is responsible for the
manipulation of these parameters in web-based objects so as to allow
them to be cached or not cached as outlined in RFC 1945.
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[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
v. Prior to releasing major or material new functionality through the
Customized Site ("New Functionality"), HS will use commercially
reasonable efforts to (i) test the New Functionality to confirm its
compatibility with AOL Service client software and (ii) provide AOL
with notice of the New Functionality so that AOL can perform tests
of the New Functionality to confirm its compatibility with the AOL
Service client software. Should any new material, new functionality
or features through the Customized Site be released without
notification to AOL, AOL will not be responsible for any adverse
user experience until such time that compatibility tests can be
performed and the new material, functionality or features qualified
for the AOL Service.
8. AOL Internet Services HS Support. AOL will provide HS with access to the
standard online resources, standards and guidelines documentation,
technical phone support, monitoring and after-hours assistance that AOL
makes generally available to similarly situated web-based partners. AOL
support will not, in any case, be involved with content creation on behalf
of HS or support for any technologies, databases, software or other
applications which are not supported by AOL or are related to any HS area
other than the Customized Site. Support to be provided by AOL is
contingent on HS providing to AOL demo account information (where
applicable), and will make reasonable efforts to provide a detailed
description of the relevant areas of the Customized Site's software,
hardware and network architecture and access to a replicated Quality
Assurance environment of the Customized Site for purposes of such
performance and load testing as AOL elects to conduct.
9. Industry Standards. In addition to the foregoing standards, and if and to
the extent site standards are not established in this Exhibit with respect
to any other aspect or portion of the Customized Site (or the Products or
other Content contained therein), HS shall provide such aspect or portion
at a level of accuracy, quality, completeness, and timeliness which meets
or exceeds prevailing standards in the applicable industry.
10. AOL Style Guidelines. HS will be in compliance with the AOL Style
Guidelines as available through the following link:
http://styleguide.aol.com.
2 CONFIDENTIAL
EXHIBIT G
OFFLINE PROMOTION
In (a) all HS television advertisements lasting 30 seconds or longer that
include any reference to the HS Properties (a "REFERENCE") and (b) all HS print
advertisements that are greater than one-half (1/2) of the page size of the
publication in which they appear and that include a Reference, HS shall
prominently promote the Customized Sites' availability through America Online(R)
and include prominent specific references or mentions (verbally where possible)
of the Customized Sites' availability through America Online(R) except where the
written, generally applicable policies of the publisher prohibits the mention of
the HS Properties' availability through America Online or where creative
execution does not permit such promotion; provided however, that in
advertisements that for policy or creative reasons do not include AOL's
"keywords" in an advertisement, HS will provide AOL with mutually agreed
alternative cross promotion. In all other HS television, radio and print
advertisements which include a Reference, HS will use commercially reasonable
good faith efforts to prominently promote the Customized Sites' availability
through America Online(R) and include prominent specific references or mentions
(verbally where possible) of the Customized Sites' availability through America
Online(R) except where not possible due to space and programming constraints, or
where the creative execution does not permit such promotion. Listing of the
"URL(s)" for the Generally Available Sites in any of HS' advertisements will be
accompanied by the AOL "keyword" for the Customized Site. The foregoing
notwithstanding, in the case of advertisements acquired or arranged on a
cooperative basis with any third party and over which HS therefore does not have
editorial control, and which include a Reference, HS shall use commercially
reasonable good faith efforts to prominently promote the Customized Sites'
availability through America Online(R) and include prominent specific references
or mentions (verbally where possible) of the Customized Sites' availability
through America Online(R).
CONFIDENTIAL
EXHIBIT H
HOME CHANNEL SCREEN SHOTS
CONFIDENTIAL
EXHIBIT I
AOL EXCLUSIVE RELATIONSHIPS
*** Subject to revision by AOL in accordance with the provisions of the
Agreement***
CATEGORY
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[*] (Corporate event/company sponsored investor-related events)
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[*] (i.e., in retail locations)
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[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
CATEGORY
[*]
[*]
[*]
[*] (for market research purposes)
[*]
[*]
[*]
[*]
[*]
[*]
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[*]; provided, however, that inclusion of this item on the initial Exhibit I
shall not preclude HS from promoting its "Find a Realtor," "Find a Lender,"
"Find a Mover," "Find a Builder," or "Find Self-Storage" functionality within
the Customized Programming"
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[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL
EXHIBIT J
HOMESTORE EMPLOYEE OFFER
HS employees that are located in the United States and not current AOL Members
(the "EMPLOYEES") shall be entitled to receive the following offer during the
sixty (60) day period immediately succeeding the Package Delivery Date (as
defined below) in accordance with the terms herein (the "EMPLOYEE OFFER"):
unlimited access to the AOL Service for a subscription fee of $[*] per month for
one year from registration (the "DISCOUNT PERIOD"). AOL shall, at its expense,
deliver 1,800 AOL Packages to HS on a date no later than forty five (45) days
following the Effective Date (the "PACKAGE DELIVERY DATE"). HS shall promptly
notify all Employees of the availability of the Offer Request; provided that all
communications by HS relating to the Employee Offer shall be subject to AOL's
prior written approval (which may be provided via e-mail), not to be
unreasonably withheld. HS shall provide one (1) AOL Package to each Employee
electing to participate in the Employee Offer. HS shall be responsible for the
costs and expenses associated with its distribution or promotional obligations
set forth under this Exhibit J. As used herein, "AOL PACKAGE" means an
AOL-supplied CD-ROM containing the AOL Software and related promotional and
packaging materials included therewith and "AOL SOFTWARE" means the proprietary
software used to connect to and use the AOL Service.
Each Employee participating in the Employee Offer must register for the AOL
Service during the two (2) month period immediately succeeding the Package
Delivery Date and agree to the terms and conditions of the AOL Service. The
Parties acknowledge that each Employee shall be responsible (and in no event
shall AOL or HS be responsible) for (i) the actions taken by any such Employee
under or through his or her AOL Service account, which actions are subject to
AOL's applicable Terms of Service and (ii) for any surcharges, including,
without limitation, all premium charges, transaction charges, and any applicable
communication surcharges incurred by any AOL Service account issued to any such
Employee. HS understands and agrees that each AOL Service account offered to
Employees hereunder may only be provided to an Employee and may not be sold,
bartered, exchanged or otherwise provided to any other person or entity for use
by such person or entity (the "EMPLOYEE USAGE REQUIREMENT"). AOL shall have the
right to terminate immediately any such AOL Service account for violation of
AOL's Terms of Service or the Employee Usage Requirement, and shall have no
obligation to reinstate or replace any such terminated AOL Service account.
Following the Discount Period for each Employee participating in the Employee
Offer hereunder, continued use of such Employee's AOL Service account
established pursuant to the Employee Offer will be subject to payment by the
applicable Employee of AOL's then-standard monthly subscription fee for the AOL
Service.
AOL DOES NOT MAKE, AND HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AOL SOFTWARE, THE AOL PACKAGES, OR
ANY OTHER AOL DELIVERABLES UNDER THIS EXHIBIT J, INCLUDING ANY IMPLIED WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT AND
IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
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[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
CONFIDENTIAL