EXHIBIT 10.5
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AOL ADVERTISING INSERTION ORDER
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[LOGO OF AMERICA ONLINE APPEARS HERE]
Contract #:_____________________
AOL Salesperson:
Sals Coordinator: Cluny Venables
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Date:___________________________
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Advertiser Advertising Agency
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Contact Person Anne Moellering, Director, Consumer
Marketing
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Company Name Fogdog Sports
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Address - Line 1 3031 Tish Way,Suite 100
Plaza East
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Address - Line 2 San Jose, CA
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Phone # 408-615-3535
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Fax #
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Email
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SIC Code
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Advertiser IAB Category
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Billing Information
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Send Invoices to (choose one): [ ] Advertiser [ ] Agency
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Advertiser or Agency Billing
Contact Person
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Company Name
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Billing Address - Line 1
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Billing Address - Line 2
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Billing Phone #
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Billing Fax #
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Billing Email Address
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P.O. #, if applicable
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.
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Billing Schedule (select one):
[ ] If total payment due is less than or equal to $5,000 and the advertiser is
new to AOL, payment is due upon signing* and must be received by AOL prior to ad
flight.
[ ] If total payment due is greater than $5,000, an advertiser new to AOL must
have a favorable D&B credit rating (as determined by AOL). If the new advertiser
does not receive a favorable credit rating or no D&B credit rating is available,
payment is due* in advance of display start date.
[ ] Given a favorable credit rating for a new advertiser or a positive payment
history for a current advertiser, invoices will be due monthly commencing on the
display start date, due net 30. A current advertiser with invoices past due to
AOL must pay outstanding debts prior to new display start date.
* Payment Information if payment is due to AOL upon signing or prior to display
start date (select one):
[ ] Payment due is greater than or equal to $100,000, please wire funds to:
Acct Title: America Online, Inc., ABA: 021000021, Acct #: 323070752, The Chase
Manhattan Bank, 1 Chase Manhattan Bank, New York, NY 10081.
[ ] Payment due is less than $100,000, please mail checks to: America Online,
Inc., Attn: Accounts Receivable, General Post Office, P.O. Box 5696, New York,
NY 10087-5696.
All amounts not paid when due and payable will bear interest from the due date
at the prime rate in effect at such time. In the event of nonpayment, AOL
reserves the right to immediately terminate this Agreement with written notice
to Advertiser
Inventory Type (choose one): [ ] AOL Service only [ ] AOL Affiliate only
(e.g., AOL.com)
[ ] AOL Service & AOL Affiliate
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AOL Service
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AOL Inventory/Demographic* Display Display # of Ad Total Gross Total
Purchased Start Stop Ad Type Slots Price Impressions
Date Date Purchased
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See Exhibit D
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Total
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* Attach completed AOL Demographic Totals:
Profile Worksheet
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All necessary artwork and active URL's must be provided by advertiser 3 business days prior to start date.
Artwork required from Advertiser/Agency:
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[ ] 234x60 IAB Standard /7k Max [ ] 120x60 Shopping/5k Max [ ] 175x45 Chat/Mail in-box/5k Max
[ ] Special_____
* Animation is only available on selected screens. Please contact your AOL Salesperson for additional information. *
Linking URL: The HTTP/URL address to be connected to the Advertisement shall be: http:// (must be filled in)
Please send artwork and URL to (choose one):
[ ] AOLARTWEST@aol.com [ ] AOLARTEAST@aol.com [ ] CENTRALADS@aol.com
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AOL reserves the right to immediately cancel any advertising flight in the event of a material change to the nature or
content of the site linked to the Advertisement.
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AOL Affiliate (e.g., AOL.com)
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AOL Affiliate (e.g., AOL.com)
Inventory
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AOL Affiliate Display Display # of Ad Total Gross Total
Inventory/Demographic* Start Stop Ad Type Slots Price Impressions
Purchased Date Date Purchased
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See Exhibit D
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* See attached package description for Totals:
any AOL.com package purchases
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Art
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All necessary artwork and active URL's must be provided by advertiser 3 business
days prior to start date.
Artwork required from Advertiser/Agency :
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[_] 468x60 NF Reviews, Search Terms, My News & Hometown/12k Max/animation OK
[_] 100x70 AOL.com Home Page/3k [_] 120x60 NF Home Page/2k
Max/No animation Max/No animation
[_] 234x60 NF Kids Only & [_] 120x60 Instant Messenger/7.5k
Hometown/5k Max/animation OK Max/animation OK
Linking URL: The HTTP/URL address to be connected to the Advertisement shall
be: http:// ________________(must be filled in)
Please send artwork and URL to (choose one):
[_] AOLWEBWEST@aol.com [_] AOLWEBEAST@aol.com [_] CENTRALADS@aol.com
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AOL reserves the right to immediately cancel any advertising flight in the event
of a material change to the nature or content of the site linked to the
Advertisement.
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Advertising Purchase Summary
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Total Price Total Impressions CPM
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AOL Networks
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AOL Affiliate
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Total Purchase Price
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(Less Agency Discount)
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Net Purchase Price Total Impressions
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The products and/or services to be offered or promoted by Advertiser in the
Advertisements are as follows: Sporting Goods (specifically excluding events,
event tickets and any auction or club services offered by Advertiser) (the
"Advertiser's Products"). Notwithstanding the foregoing, Advertiser shall not
be restricted from promoting sporting events and the sale of event tickets on
the Affiliated Advertiser Site. Advertiser agrees to offer AOL the opportunity
to sell on terms as the Parties shall reasonably agree on or off the AOL Network
any and all event tickets offered on the Affiliated Advertiser Site, except
where Advertiser is prohibited via contract or otherwise from extending such
opportunity to AOL.
Impressions Commitment. In the event AOL delivers the impression commitment
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provided for hereunder prior to the Display Stop Date, AOL may, at its option,
discontinue display at such earlier time; provided, however, that AOL shall make
commercially reasonable efforts to generally deliver the impression commitment
evenly over the Term. Any guarantees are to impressions (as measured by AOL in
accordance with its standard methodologies and protocols), not "click-throughs."
In the event there is (or will be in AOL's reasonable judgment) a shortfall in
impressions as of the end of a display period (a "Shortfall"), such Shortfall
shall not be considered a breach of the Agreement by AOL: instead, AOL will
provide Advertiser, as its sole remedy, with "makegood" impressions through
comparable advertisement placements on the AOL Network which have a total value,
based on AOL's then-current advertising rate card, equal to the value of the
Shortfall. To the extent impressions commitments are identified without regard
to specific placements, such placements will be as mutually agreed upon by AOL
and Advertiser during the course of the display period. AOL reserves the right
to alter Advertiser flight dates to accommodate trafficking needs or other
operational needs. In such cases, AOL will make available to Advertiser
comparable equivalent flight(s).
Standard Terms and Conditions. This Insertion Order (this "Insertion Order" or
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"Agreement") incorporates by reference AOL's standard advertising terms and
conditions (the "Standard Terms"), including terms related to advertising
material, payment modifications, cancellation rights, usage data, limitations of
liability, disclaimers, indemnifications, use of AOL member information and
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miscellaneous legal terms. Among other things, the Standard Terms provide AOL
the right to cancel and remove any and all Advertisements, promotions and
Impressions provided under this Insertion Order on thirty days notice to
Advertiser (or upon such shorter notice as may be designated by AOL in the event
that AOL believes that further display of the Advertisement will expose AOL to
liability or other adverse consequences), in which case Advertiser shall only be
responsible for the pro-rata portion of payments attributable to the period
preceding such termination. The Standard Terms appear at keyword "Standard Ad
Terms4" on the U.S.-based America Online brand service and at
http://mediaspace.aol.com/adterms4.html." A hard copy of the Standard Terms
will be provided to advertiser upon request. Advertiser acknowledges that it
has been provided an opportunity to review the Standard Terms and agrees to be
bound by them.
AUTHORIZED SIGNATURES
In order to bind the parties to this Insertion Order, their duly authorized
representatives have signed their names below on the dates indicated. This
Agreement (including (i) the Standard Terms, (ii) the additional terms and
conditions on Exhibit A attached hereto, (iii) the definitions on Exhibit B
attached hereto, the operational provisions on Exhibit C attached hereto and the
Carriage Plan on Exhibit D attached hereto, each incorporated herein by
reference and made a part hereof) shall be binding on both parties when signed
on behalf of each party and delivered to the other party (which delivery may be
accomplished by facsimile transmission of the signature pages hereto)).
AMERICA ONLINE, INC. ADVERTISER
By: /s/ David M. Colburn By: /s/ Tim Harrington
Print Name: David M. Colburn Print Name: Tim Harrington
Title: Senior Vice President Title: President and CEO
Date: 6/30/99 Date: 6/30/99
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EXHIBIT A
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Additional Terms
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1. Payments; Late Payments; Wired Payments. Advertiser shall pay AOL a non-
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refundable guaranteed payment of [*], payable as follows:
[*]
[*]
[*]
[*]
All amounts owed under this Agreement not paid when due and payable will
bear interest from the date such amounts are due and payable at the prime
rate in effect at such time. All payments required hereunder will be paid
in immediately available, non-refundable U.S. funds wired to the "America
Online" account, Account Number 323070752 at The Chase Manhattan Bank, 1
Chase Manhattan Plaza, New York, NY 10081 (ABA: 021000021). In the event
of nonpayment, AOL reserves the right to immediately terminate this
Agreement with written notice to Advertiser.
2. Content of Affiliated Site. The Advertisements will only promote the
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Advertiser's Products. Additionally, the Affiliated Advertiser Site will
only offer the Advertiser's Products and content related thereto (except to
the extent otherwise mutually agreed upon by the parties). Advertiser will
ensure that the prices, terms and conditions for the Products in the
Affiliated Advertiser Site are no less favorable than the prices, terms and
conditions on which the Products or substantially similar products are
offered by or on behalf of Advertiser through any other distribution
channels. No sales of Advertiser's Products or any other products through
the Affiliated Advertiser Site shall be conducted (i) through a person-to-
person auction format, or (ii) in the case of sales to AOL Users, through a
fee-based club format.
3. Advertising Sales. The Parties acknowledge that Advertiser does not
currently sell such Advertisements and has currently no plans to sell such
Advertisements in the future In the event that Advertiser sells such
advertisements during the term, the Parties shall conduct good faith
negotiation of an appropriate relationship (which may include a revenue
share) concerning such Advertisements. No Interactive Service (other than
AOL or its affiliates) will be promoted in the Affiliated Advertiser Site.
4. Special Offers/Member Benefits. Advertiser will generally promote through
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the Affiliated Advertiser Site any special or promotional offers made
available by or on behalf of Advertiser through any other distribution
channels. In addition, Advertiser shall use its best faith efforts to
promote through the Affiliated Advertiser Site on a regular and consistent
basis, special offers exclusively available to AOL Users (the "AOL Special
Offers"). AOL Special Offers made available by Advertiser shall provide a
substantial benefit to AOL users, either by virtue of a meaningful price
discount, product enhancement, unique service benefit or other special
feature. Advertiser will provide AOL with reasonable prior notice of AOL
Special Offers so that AOL can market the availability of such AOL Special
Offers in the manner AOL deems appropriate in its editorial discretion.
5. AOL Quick Checkout. Advertiser will take all reasonable steps necessary to
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conform its promotion and sale of products through the Advertiser Site to
the then-existing commerce technologies made available to Advertiser by
AOL, including without limitation AOL's "quick checkout" tool which allows
AOL users to enter payment and shipping information which is then passed
from AOL's centralized server unit to Advertiser for order fulfillment
("AOL Quick Checkout"). AOL will make all reasonable efforts to provide
the tools for the Advertiser to enable the Advertiser Site with the AOL
Quick Checkout technology and functionality. Collection, storage and
disclosure of information which Advertiser provides to AOL, will be subject
to AOL's privacy
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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policy and all confidentiality requirements hereunder. To the extent that
the Advertiser Site includes AOL's Quick Checkout, Advertiser will ensure
that the AOL Quick Checkout is of equal placement and promotion prominence
to other available payment options.
6. Merchant Certification Program. Advertiser will participate in any
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generally applicable "Certified Merchant" program operated by AOL or its
authorized agents or contractors. Such program may require Advertiser
participants on the Shopping Channel on an ongoing basis to meet certain
reasonable standards relating to provision of electronic commerce through
the AOL Service, AOL.com and the CompuServe Service and may also require
from "Certified Merchant" program participants generally, the payment of
certain nominal certification fees to AOL or its authorized agents or
contractors operating the program.
7. BizRate Survey. Advertiser agrees to (i) participate in the BizRate
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Program, a service offered by Binary Compass Enterprises, Inc. (BCE), which
provides opt-in satisfaction surveys to Users who purchase products through
such Affiliated Advertiser Site or such other provider of such services as
AOL may designate or approve from time to time, and (ii) provide a link to
BizRate's then-current standard survey forms, or such other survey forms
offered by any other party that AOL may reasonably designate or approve
from time to time. Advertiser's participation shall be based upon a
separate written agreement which Advertiser will enter into with BCE, or
other such party reasonably designated or approved by AOL. Advertiser
hereby authorizes BCE to provide to AOL any and all reports (other than
proprietary reports to which access is password controlled) provided to
Advertiser by BCE, or other third party providing such services, and
agrees to provide written notice of such authorization to BCE, or such
other third party.
8. Specific Customer Service Requirements. Advertiser will receive all emails
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from Customers via a computer available to Advertiser's customer service
staff and generally respond to such emails in a manner consistent with its
best business practices, which Advertiser represents is currently within
one business day . Advertiser will receive all orders electronically and
generally process all orders within one business day of receipt, provided
products ordered are not advance order items. Advertiser will ensure that
all orders of products are received, processed, fulfilled and delivered on
a timely and professional basis. Advertiser will offer AOL users who
purchase products through such the Advertiser Site a money-back
satisfaction guarantee that is consistent with Advertiser's then-current
return policy and is no less favorable the standard in Advertiser's
industry . Such money-back satisfaction guarantee policy shall be readily
accessible to users of the Affiliated Advertiser Site. Advertiser will bear
all responsibility for compliance with federal, state and local laws in the
event that products are out of stock or are no longer available at the time
an order is received. Advertiser will also comply with the requirements of
any federal, state or local consumer protection or disclosure law. Payment
for products will be collected by Advertiser directly from customers.
Advertiser's order fulfillment operation will be subject to AOL's
reasonable review.
9. Navigation. Advertiser will use best faith efforts to provide navigational
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ability for AOL or users to return to an agreed-upon point on the AOL
Network (for which AOL shall supply the proper address) from the Affiliated
Advertiser Site (e.g., the point on the AOL Service from which the
Affiliated Advertiser Site is linked) in a manner mutually acceptable to
the Parties, which, at AOL's option, may be satisfied through the use of a
hybrid browser format. Additionally, in cases where an AOL User performs a
search for Advertiser through any search or navigational tool or mechanism
that is accessible or available through the AOL Network (including without
limitation Advertisements, AOL Service "Keywords", AOL.com "Search Terms",
CompuServe "Go Words" or any other similar promotions or navigational
tools), AOL shall have the right to direct such AOL User to the Affiliated
Advertiser Site, or any other Advertiser Interactive Site determined by AOL
in its reasonable discretion.
10. Auditing Rights. At all times during the Continued Link Period, Advertiser
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will maintain complete, clear and accurate records of all expenses,
revenues and fees in connection payments due during the Continued Link
Period. For the sole purpose of ensuring compliance with this Agreement,
AOL (or its representative) will have the right to conduct a reasonable and
necessary inspection of only the portions of the books and records of
Advertiser which are relevant to Advertiser's payments
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due during the Continued Link Period. Any such audit may be conducted after
twenty-(20) business days prior written notice to Advertiser. AOL shall
bear the expense of any audit conducted pursuant to this Agreement unless
such audit shows an error in AOL's favor amounting to a deficiency to AOL
in excess of five percent (5%) of the actual amounts paid and/or payable to
AOL hereunder, in which event Advertiser shall bear the reasonable expenses
of the audit. Advertiser shall pay AOL the amount of any deficiency
discovered by AOL within thirty (30) days after receipt of notice thereof
from AOL.
11. Taxes. Advertiser will collect and pay and indemnify and hold AOL harmless
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from, any sales, use, excise, import or export value added or similar tax
or duty not based on AOL's net income, including any penalties and
interest, as well as any costs associated with the collection or
withholding thereof, including attorneys' fees.
12. Sales Reports. During the Continued Link Period, Advertiser will provide
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AOL in an automated manner with a monthly report in an AOL-designated
format, detailing the following activity in such period (and any other
information mutually agreed upon by the parties or reasonably required for
measuring revenue activity of AOL Users by Advertiser through AOL links to
the Affiliated Advertiser Site): (i) summary sales information by day
(date, number of products sold, number of orders, total Transaction
Revenues). More generally, each payment to be made by Advertiser during
the Continued Link Period pursuant to the revenue sharing provisions
hereof, will be accompanied by a report containing information which
supports the payment, including information identifying (i) gross
Transaction Revenues and all items deducted or excluded from gross
Transaction Revenues to produce Transaction Revenues. During the Term and
the Continued Link Period, Advertiser shall provide AOL with aggregate
sales and revenue information, as AOL shall reasonably request.
13. Solicitation of AOL Users. During the term of the Agreement and for a two
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year period thereafter, Advertiser 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, Advertiser
will not send unsolicited, commercial e-mail (i.e., "spam") 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 is being sent has voluntarily either
(i) engaged in a transaction with Advertiser or (ii) provided information
to Advertiser 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 being sent to that AOL User by Advertiser
or its agents. Any commercial e-mail communications to AOL Users which are
otherwise permitted hereunder, will (a) include a prominent and easy means
to "opt-out" of receiving any future commercial e-mail communications from
Advertiser, and (b) shall also be subject to AOL's then-standard
restrictions on distribution of bulk e-mail (e.g., related to the time and
manner in which such e-mail can be distributed through or into the AOL
product or service in question).
14. Collection and use of User Information. Advertiser shall ensure that its
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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
Affiliated Advertiser Site, Advertiser's standard privacy policies so long
as such policies are prominently published on the site and provide adequate
notice, disclosure and choice to users regarding Advertiser's collection,
use and disclosure of user information). Except when required by legal
process, Advertiser 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 Information collected
under this Agreement to market another Interactive Service.
15. AOL Look and Feel. Advertiser acknowledges and agrees that AOL will own
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all right, title and interest in and to the AOL Look and Feel (subject only
to Advertiser's ownership rights in any Advertiser trademarks or
copyrighted material within the Affiliated Advertiser Site).
16. Management of the Affiliated Advertiser Site. Advertiser will manage,
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review, delete, edit, create, update and otherwise manage all Content
available on or through the Affiliated Advertiser
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Site, in a timely and professional manner and in accordance with the terms
of this Agreement. Advertiser will ensure that the Affiliated Advertiser
Site is current, accurate and well-organized at all times. Advertiser
warrants that the Licensed Content : (i) will not infringe on or violate
any copyright, trademark, U.S. patent or any other third party right; (ii)
will not violate AOL's then-applicable Terms of Service; and (iii) will not
violate any applicable law or regulation (federal, state, or otherwise),
including without limitation those relating to taxes, advertising, or
contests, sweepstakes or similar promotions. Additionally, Advertiser
represents and warrants that, to the best of its knowledge, it owns or has
a valid license to all rights to any Licensed Content used in AOL
"slideshow" or other formats embodying elements such as graphics, animation
and sound, free and clear of all encumbrances and without violating the
rights of any other person or entity. Advertiser also warrants that a
reasonable basis exists for all Product performance or comparison claims
appearing through the Affiliated Advertiser Site. Advertiser shall not in
any manner, including, without limitation in any Advertisement, the
Licensed Content, or any Materials (defined below), state or imply that AOL
recommends or endorses Advertiser or Advertiser's Services (e.g., no
statements that Advertiser is an "official" or "preferred" provider of
products or services for AOL). AOL will have no obligations with respect to
the Products available on or through the Affiliated Advertiser Site,
including, but not limited to, any duty to review or monitor any such
Products.
17. Duty to Inform. Advertiser will promptly inform AOL of any information
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related to the Affiliated Advertiser Site which Advertiser believes in good
faith could reasonably lead to a material claim, demand, or liability of or
against AOL and/or its affiliates by any third party.
18. Cross-Promotion
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(a) Online. Advertiser represents that it does not currently include
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third party promotional banners or buttons ("Third Party Promotions")
on the Affiliated Advertiser Site. In the event that Advertiser elects
to include Third Party Promotions on the Affiliated Advertiser Site in
the future, the Parties agree to discuss in good faith the placement
of AOL promotional material on the Affiliated Advertiser Site and the
payment by AOL to Advertiser of bounties for new AOL Subscribers
attained as a result of such promotional materials.
(b) In Advertiser's television, radio, print and "out of home" (e.g.,
buses and billboards) advertisements and in any publications,
programs, features or other forms of media over which Advertiser
exercises at least partial editorial control, Advertiser will use best
faith efforts to include specific references or mentions (verbally
where possible) of the availability of the Affiliated Advertiser Site
through the AOL Service. Such efforts will include efforts to
accompany Advertiser's listing of the "URL" for any Advertiser Web
Site with a prominent listing of the "keyword" term on AOL for the
Affiliated Advertiser Site. Advertiser will not implement or authorize
any promotion similar in any respect (including, without limitation,
in scope, purpose, amount, prominence or regularity) to the promotion
required or provided pursuant to this Agreement for any other entity
reasonably construed to be competitive to AOL.
19. Promotional Materials/Press Releases. Each Party will submit to the other
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Party, for its prior written approval, which will not be unreasonably
withheld or delayed, any marketing, advertising, press releases, and all
other promotional materials related to the Affiliated Advertiser Site
and/or referencing the other Party and/or its trade names, trademarks, and
service marks (the "Materials"); provided, however, that either Party's use
of screen shots of the Affiliated Advertiser Site for promotional purposes
will not require the approval of the other Party so long as America
Online(R) is clearly identified as the source of such screen shots; and
provided further, however, that, following the initial public announcement
of the business relationship between the Parties in accordance with the
approval and other requirements contained herein, either Party's subsequent
factual reference to the existence of a business relationship between the
Parties 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 Materials. Once approved, the Materials may be used
by a Party and its affiliates for the purpose of promoting the Affiliated
Advertiser 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 Materials
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may be depleted. Notwithstanding the foregoing, either Party may issue
press releases and other disclosures as required by law 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.
20. Term. The effective term (the "Term") hereof shall begin on the Effective
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Date hereof and end on the two year anniversary thereof, unless otherwise
terminated prior thereto.
21. Continued Link. Upon conclusion of the Term of this Agreement, AOL may, at
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its discretion, continue to promote one or more "pointers" or links from
the AOL Network to the Affiliated Advertiser Site (or, if the Affiliated
Advertiser Site no longer exists, to any Advertiser Interactive Site) and
continue to use Advertiser's trade names, trade marks and service marks in
connection therewith (collectively, a "Continued Link"). After the Term,
regardless of any Continued Link, the following obligations of the Parties
will cease: (i) Advertiser will not be required to pay any guaranteed,
fixed payment, maintain the Affiliated Advertiser Site nor perform any of
the cross-promotional obligations contained herein (except as set forth
below); and (ii) AOL will not be required to undertake any minimum
promotional/placement obligations. However, so long as AOL maintains a
Continued Link (the "Continued Link Period"), the following obligations
shall survive the Term of this Agreement: (i) Advertiser shall pay to AOL
a percentage of all Transaction Revenues (without respect to any revenue
thresholds or hurdles, payable on a quarterly basis within thirty (30) days
following the end of the quarter in which the applicable Transaction
Revenues were generated) equal to [*] and (ii) the Standard Terms shall
survive, together with any provisions necessary if and to the extent
required for the express purposes of this paragraph. For purposes hereof,
"Transaction Revenues" shall mean aggregate amounts paid by AOL
Purchasers connecting to the Advertiser's site by such continued links or
pointers and completing purchase on the same visit, in connection with
the purchase of any of Advertiser's Products in the Affiliated Advertiser
Site, 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, (c) handling, shipping and service charges, but not
excluding cost of goods sold or any similar cost. Notwithstanding the
foregoing, the calculation of "Transaction Revenues" shall be no less
favorable to AOL than the most favorable calculation (to the partner)
under Advertiser's Affiliate's Program.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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Exhibit B
Definitions
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Advertising Revenues. Aggregate amounts collected plus the fair market value of
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any other compensation received (such as barter advertising) by Advertiser, AOL
or either Party's agents, as the case may be, arising from the license or sale
of Advertisements, promotions, links or sponsorships that appear within any
pages of the Affiliated Advertiser Site, less applicable advertising sales
commissions. Advertising Revenues does not include amounts arising from
Advertisements on any screens or forms preceding, framing or otherwise directly
associated with the Affiliated Advertiser Site, which will be sold exclusively
by AOL.
Affiliated Advertiser Site. The specific area to be promoted and distributed by
- --------------------------
AOL hereunder through which Advertiser can market and complete transactions
regarding its permitted Services.
AOL Member. Any authorized user of the AOL Service, including any sub-accounts
- ----------
using the AOL Service under an authorized master account.
AOL Network. (i) The AOL Service, (ii) AOL.com, (iii) CompuServe, (iv) Digital
- -----------
City, (v) Netcenter, and (vi) any other product or service owned, operated,
distributed or authorized to be distributed by or through AOL or its affiliates
worldwide (and including those properties excluded from the definitions of the
AOL Service or AOL.com). It is understood and agreed that the rights of MP
relate only to the AOL Service and AOL.com and not generally to the AOL Network.
AOL Purchaser. (i) Any person or entity who enters the Affiliated Advertiser
- -------------
Site from the AOL Network including, without limitation, from any third party
area therein (to the extent entry from such third party area is traceable
through both Parties' commercially reasonable efforts), and generates
Transaction Revenues (regardless of whether such person or entity provides an e-
mail address during registration or entrance to the Affiliated Advertiser Site
which includes a domain other than an "AOL.com" domain); and (ii) any other
person or entity who, when purchasing a product, good or service through an
Advertiser Interactive Site, provides an AOL.com domain name or a Compuserve.com
domain name as part of such person or entity's e-mail address.
AOL Service. The standard narrow-band U.S. version of the America Online brand
- -----------
service, specifically excluding (a) AOL.com, Netcenter or any other AOL
Interactive Site, (b) the international versions of an America Online service
(e.g., AOL Japan), (c) the CompuServe(R) brand service and any other CompuServe
products or services (d) "Driveway," "ICQ(TM)," "AOL NetFind(TM)," "AOL Instant
Messenger(TM)," "Digital City," "NetMail(TM)," "Electra", "Thrive", "Real Fans",
"Love@AOL", "Entertainment Asylum," "AOL Hometown," "My News" or any similar
independent product, service or property which may be offered by, through or
with the U.S. version of the America Online brand service, (e) 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), (f) any yellow pages, white pages, classifieds or
other search, directory or review services or Content offered by or through the
U.S. version of the America Online brand service, (g) any property, feature,
product or service which AOL or its affiliates may acquire subsequent to the
Effective Date and (h) any other version of an America Online service which is
materially different from the standard narrow-band U.S. version of the America
Online brand service, by virtue of its branding, distribution, functionality,
Content or services, including, without limitation, any co-branded version of
the service or any version distributed through any broadband distribution
platform or through any platform or device other than a desktop personal
computer.
AOL Look and Feel. The elements of graphics, design, organization,
- -----------------
presentation, layout, user interface, navigation and stylistic convention
(including the digital implementations thereof) which are generally associated
with interactive sites within the AOL Network.
AOL User. Any user of the AOL Service, AOL.com, CompuServe, Digital City,
- --------
Netcenter, or the AOL Network.
AOL.com. AOL's primary Internet-based Interactive Site marketed under the
- -------
"AOL.COM(TM)" brand, specifically excluding (a) the AOL Service, (b) Netcenter,
(c) any international versions of such site, (d)
10
"ICQ," "AOL NetFind(TM)," "AOL Instant Messenger(TM)," "NetMail(TM)," "AOL
Hometown," "My News" or any similar independent product or service offered by or
through such site or any other AOL Interactive Site, (e) any programming or
Content area offered by or through such site over which AOL does not exercise
complete operational control (including, without limitation, Content areas
controlled by other parties and member-created Content areas), (f) any
programming or Content area offered by or through such site which was operated,
maintained or controlled by the former AOL Studios division (e.g., Electra), (g)
any yellow pages, white pages, classifieds or other search, directory or review
services or Content offered by or through such site or any other AOL Interactive
Site, (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(TM)" brand, by
virtue of its branding, distribution, functionality, Content or services,
including, without limitation, any co-branded versions or any version
distributed through any broadband distribution platform or through any platform
or device other than a desktop personal computer.
Advertiser Interactive Site. Any Interactive Site (other than the Affiliated
- ---------------------------
Advertiser Site) which is managed, maintained, owned or controlled by Advertiser
or its agents.
CompuServe. The standard, narrow-band U.S. version of the CompuServe brand
- ----------
service, specifically excluding (a) any international versions of such service,
(b) any web-based service including "compuserve.com", "cserve.com" and "cs.com",
or any similar product or service offered by or through the U.S. version of the
CompuServe brand service, (c) Content areas owned, maintained or controlled by
CompuServe affiliates or any similar "sub-service," (d) any programming or
Content area offered by or through the U.S. version of the CompuServe brand
service over which CompuServe does not exercise complete or substantially
complete operational control (e.g., third-party Content areas), (e) any yellow
pages, white pages, classifieds or other search, directory or review services or
Content and (f) any co-branded or private label branded version of the U.S.
version of the CompuServe brand service, (g) any version of the U.S. version of
the CompuServe brand service which offers Content, distribution, services and/or
functionality materially different from the Content, distribution, services
and/or functionality associated with the standard, narrow-band U.S. version of
the CompuServe brand service, including, without limitation, any version of such
service distributed through any platform or device other than a desktop personal
computer and (h) any property, feature, product or service which CompuServe or
its affiliates may acquire subsequent to the Effective Date.
Confidential Information. Any information relating to or disclosed in the
- ------------------------
course of the Agreement, which is or should be reasonably understood to be
confidential or proprietary to the disclosing Party, including, but not limited
to, the material terms of this Agreement, information about AOL Members, AOL
Users, AOL Purchasers and Advertiser customers, technical processes and
formulas, source codes, product designs, sales, cost and other unpublished
financial information, product and business plans, projections, and marketing
data. "Confidential Information" will not include information (a) already
lawfully known to or independently developed by the receiving Party, (b)
disclosed in published materials, (c) generally known to the public, or (d)
lawfully obtained from any third party.
Content. Text, images, video, audio (including, without limitation, music used
- -------
in synchronism or timed relation with visual displays) and other data, Services,
advertisements, promotions, links, pointers and software, including any
modifications, upgrades, updates, enhancements and related documentation.
Digital City. The standard, narrow-band U.S. version of Digital City's local
- -------------
content offerings marketed under the Digital City brand name, specifically
excluding (a) the AOL Service, AOL.com, Netcenter, or any other AOL Interactive
Site, (b) any international versions of such local content offerings, (c) the
CompuServe(R) brand service and any other CompuServe products or services (d)
"Driveway," "ICQ(TM)," "AOL NetFind(TM)," "AOL Instant Messenger(TM)," "Digital
City," "NetMail(TM)," "Electra", "Thrive", "Real Fans", "Love@AOL",
"Entertainment Asylum," "AOL Hometown," "My News" or any similar independent
product, service or property which may be offered by, through or with the
standard narrow band version of Digital City's local content offerings, (e) any
programming or Content area offered by or through such local content offerings
over which AOL does not exercise complete operational control (including,
without limitation, Content areas controlled by other parties and member-created
Content areas), (f) any yellow pages, white pages, classifieds or other search,
directory or review services or Content offered by or through such local content
offerings, (g) any property, feature, product or service which AOL or its
affiliates may acquire subsequent to the Effective Date, (h) any other version
of a Digital City local content offering which is
11
materially different from the narrow-band U.S. version of Digital City's local
content offerings marketed under the Digital City(R) brand name, by virtue of
its branding, distribution, functionality, Content or services, including,
without limitation, any co-branded version of the offerings or any version
distributed through any broadband distribution platform or through any platform
or device other than a desktop personal computer, and (i) Digital City- branded
offerings in any local area where such offerings are not owned or operationally
controlled by America Online, Inc. or DCI (e.g., Chicago, Orlando, South
Florida, and Hampton Roads).
Effective Date. June 30, 1999.
- --------------
Impression. User exposure to the applicable Promotion, as such exposure may be
- ----------
reasonably determined and measured by AOL in accordance with its standard
methodologies and protocols.
Interactive Service. An entity 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 (or navigation thereto) (e.g., an online service
or search and directory service) and/or marketing a broad selection of products
and/or services across numerous interactive commerce categories (e.g., an online
mall or other leading online commerce site); and (iii) communications software
capable of serving as the principal means through which a user creates, sends
and receives electronic mail or real time online messages.
Interactive Site. Any interactive site or area, including, by way of example and
- ----------------
without limitation, (i) a Advertiser site on the World Wide Web portion of the
Internet or (ii) a channel or area delivered through a "push" product such as
the Pointcast Network, interactive environment such as Microsoft's Active
Desktop or interactive television service such as WebTV.
Licensed Content. All Content offered through the Affiliated Advertiser Site
- ----------------
pursuant to this Agreement or otherwise provided by Advertiser or its agents in
connection herewith (e.g., offline or online promotional Content, Promotions,
AOL "slideshows", etc.), including in each case, any modifications, upgrades,
updates, enhancements, and related documentation.
Netcenter. Netscape Communications Corporation's primary Internet-based
- ---------
Interactive Site marketed under the "Netscape Netcenter" brand, specifically
excluding (a) the AOL Service, (b) AOL.com, (c) any international versions of
such site, (d) "ICQ," "AOL Netfind," "AOL Instant Messenger," "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,
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" 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).
Search Term or searchterm. The online search term or terms made available on
- ----------- ----------
AOL.com only for use by AOL.com users using the NetFind brand search engine
thereon (the results of which such search are non-exclusive, and result in
references to many entities).
12
Exhibit C
Operations
----------
1. Affiliated Advertiser Site Infrastructure. Advertiser will be responsible
-----------------------------------------
for all communications, hosting and connectivity costs and expenses
associated with the Affiliated Advertiser Site. Advertiser will provide all
hardware, software, telecommunications lines and other infrastructure
necessary to meet traffic demands on the Affiliated Advertiser Site from the
AOL Network. Advertiser will design and implement the network between the
AOL Service and Affiliated Advertiser Site such that (i) no single component
failure will have a materially adverse impact on AOL Members seeking to
reach the Affiliated Advertiser Site from the AOL Network and (ii) no single
line will run at more than 70% average utilization for a 5-minute peak in a
daily period. In this regard, Advertiser will provide AOL, upon request,
with a detailed network diagram regarding the network infrastructure
supporting the Affiliated Advertiser Site. In the event that Advertiser
elects to create a custom version of the Affiliated Advertiser Site in order
to comply with the terms of this Agreement, Advertiser will bear
responsibility for all aspects of the implementation, management and cost of
such customized site.
2. Optimization; Speed. Advertiser will use commercially reasonable efforts to
-------------------
ensure that: (a) the functionality and features within the Affiliated
Advertiser Site are optimized for the client software then in use by AOL
Members; and (b) the Affiliated Advertiser Site is designed and populated in
a manner that minimizes delays when AOL Members attempt to access such site.
At a minimum, Advertiser will ensure that the Affiliated Advertiser Site's
data transfers initiate within fewer than fifteen (15) seconds on average.
Prior to commercial launch of any material promotions described herein,
Advertiser will permit AOL to conduct performance and load testing of the
Affiliated Advertiser 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. User Interface. Advertiser will maintain a graphical user interface within
--------------
the Affiliated Advertiser Site that is competitive in all material respects
with interfaces of other similar sites based on similar form technology. AOL
reserves the right to review and approve the user interface and site design
prior to launch of the Promotions and to conduct focus group testing to
assess compliance with respect to such consultation and with respect to
Advertiser's compliance with the preceding sentence.
4. Technical Problems. Advertiser agrees to use commercially reasonable efforts
------------------
to address material technical problems (over which Advertiser exercises
control) affecting use by AOL Members of the Affiliated Advertiser Site (a
"Advertiser Technical Problem") promptly following notice thereof. In the
event that Advertiser is unable to promptly resolve a Advertiser Technical
Problem following notice thereof from AOL (including, without limitation,
infrastructure deficiencies producing user delays), AOL will have the right
to regulate the promotions it provides to Advertiser hereunder until such
time as Advertiser corrects the Advertiser Technical Problem at issue.
5. Monitoring. Advertiser will ensure that the performance and availability of
----------
the Affiliated Advertiser Site is monitored on a continuous basis.
Advertiser will provide AOL with contact information (including e-mail,
phone, pager and fax information, as applicable, for both during and after
business hours) for Advertiser's principal business and technical
representatives, for use in cases when issues or problems arise with respect
to the Affiliated Advertiser Site.
6. Telecommunications. The Parties agree to explore encryption methodology to
------------------
secure data communications between the Parties' data centers. The network
between the Parties will be configured such that no single component failure
will significantly impact AOL Users. The network will be sized such that no
single line runs at more than 70% average utilization for a 5-minute peak in
a daily period.
7. Security. Advertiser will utilize Internet standard encryption technologies
--------
(e.g., Secure Socket Layer - SSL) to provide a secure environment for
conducting transactions and/or transferring private member information (e.g.
credit card numbers, banking/financial information, and member address
information) to and from the Affiliated Advertiser Site. Advertiser will
facilitate periodic reviews of the Affiliated Advertiser Site by AOL in
order to evaluate the security risks of such site. Advertiser will
13
promptly remedy any security risks or breaches of security as may be
identified by AOL's Operations Security team.
8. Technical Performance.
---------------------
i. Advertiser will design the Affiliated Advertiser Site to support the
AOL-client embedded versions of the Microsoft Internet Explorer 3.0 and
4.0 browsers (Windows and Macintosh), the Macintosh version of the
Microsoft Internet Explorer 3.0, and make commercially reasonable
efforts to support all other AOL browsers listed at:
"http://webmaster.info.aol.com/BrowTable.html."
ii. To the extent Advertiser creates customized pages on the Affiliated
Advertiser Site for AOL Members, Advertiser will configure the server
from which it serves the site to examine the HTTP User-Agent field in
order to identify the "AOL Member-Agents" listed at:
"http://webmaster.info.aol.com/Brow2Text.html."
iii. Advertiser will periodically review the technical information made
available by AOL at http://webmaster.info.aol.com.
------------------------------
iv. Advertiser will design its site to support HTTP 1.0 or later
protocol as defined in RFC 1945 and to adhere to AOL's parameters for
refreshing cached information listed at http://webmaster.info.aol.com.
------------------------------
v. Prior to releasing material, new functionality or features through
------------------------------------------------------------------
the Affiliated Advertiser Site ("New Functionality"), Advertiser will
---------------------------------------------------------------------
use commercially reasonable efforts to either (i) test the New
--------------------------------------------------------------
Functionality to confirm its compatibility with AOL Service client
------------------------------------------------------------------
software or (ii) provide AOL with written notice of the New
-----------------------------------------------------------
Functionality so that AOL can perform tests of the New Functionality to
-----------------------------------------------------------------------
confirm its compatibility with the AOL Service client software.
---------------------------------------------------------------
9. AOL Internet Services Advertiser Support. AOL will provide Advertiser 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 Advertiser or support for any technologies, databases,
software or other applications which are not supported by AOL or are related
to any Advertiser area other than the Affiliated Advertiser Site. Support to
be provided by AOL is contingent on Advertiser providing to AOL demo account
information (where applicable), a detailed description of the Affiliated
Advertiser Site's software, hardware and network architecture and access to
the Affiliated Advertiser Site for purposes of such performance and load
testing as AOL elects to conduct.
14
Exhibit D
Carriage
- ----------------------------------------------------------------------
Shopping Start End Impressions
Date Date Target
- ----------------------------------------------------------------------
Athletic Shoes and Apparel - GOLD 7/14/99 5/14/01
Golf & Recreation - GOLD 7/14/99 5/14/01
Camping & Outdoors - ANCHOR 7/14/99 5/14/01
Fitness & Sports - ANCHOR 7/14/99 5/14/01
======================================================================
Subtotal [*]
AOL Service
======================================================================
Sports: ROS 8/1/99 7/31/01
ROS 8/1/99 7/31/01
Email - In Box 8/1/99 7/31/01
People Connection: News, Sports, 8/1/99 7/31/01
Finance - Sports ROS
======================================================================
Subtotal [*]
AOL.com
======================================================================
Webcenter: Run of Sports 8/1/99 7/31/01
Sports Search Package:Baseball 8/1/99 7/31/01
Module
Sports Search Package: Soccer 8/1/99 7/31/01
Sports Search Package: Golf 9/1/99 7/31/01
Sports Search Package: Outdoor 8/1/99 7/31/01
ROS 8/1/99 7/31/01
AIM 8/1/99 7/31/01
======================================================================
Subtotal [*]
======================================================================
Year 1 [*]
Year 2 [*]
======================================================================
TOTAL [*]
======================================================================
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
15