Exhibit 10.7
CONFIDENTIAL
SHOPPING CHANNEL PROMOTIONAL AGREEMENT
This Agreement, dated as of October 2, 1998 (the "Effective Date"), is made
and entered into by and between America Online, Inc. ("AOL"), a Delaware
corporation, with its principal offices at ▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, and Garden Escape, Inc. ("MERCHANT"), a Delaware corporation, with its
principal offices at ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (each a "Party"
and collectively the "Parties").
INTRODUCTION
AOL owns, operates and distributes the U.S. America Online(R) brand
commercial online service (the "AOL Service"), the U.S. version of its primary
website marketed under the ▇▇▇.▇▇▇(R) brand ("▇▇▇.▇▇▇") and the affiliate U.S.
CompuServe(R) brand commercial online service (the "CompuServe Service").
MERCHANT wishes to secure a promotional placement (the "Promotion") within the
shopping channel of the AOL Service, ▇▇▇.▇▇▇ and the CompuServe Service (as
specified in Exhibit A) (each channel, a "Shopping Channel") which, when
activated, will provide access to MERCHANT's site on the World Wide Web or its
area on the AOL or CompuServe Services (as the case may be) (the "Merchant
Site") where MERCHANT offers content, products and/or services for sale.
TERMS
1. MERCHANT PROGRAMMING. MERCHANT will make available through the Merchant
Site the certain products, content and/or services specified in Exhibit A (the
"Products") in accordance with the Standard Shopping Channel Terms and
Conditions set forth on Exhibit B B.
2. PROMOTIONAL OBLIGATIONS.
2.1 AOL Promotion of MERCHANT. Commencing on a date to be mutually agreed
upon promptly following execution hereof, AOL will provide the Promotion(s) set
forth in Exhibit A. Except to the extent expressly described in Exhibit A, the
specific form, placement, positioning, duration and nature of the Promotion(s)
will be as determined by AOL in its reasonable discretion (consistent with the
editorial composition of the applicable screens) and the nature of the Promotion
being purchased by MERCHANT as reflected in Exhibit A and in any placement fee
specified in Section 3 below). The specific content to be contained within the
Promotions (including, without limitation, within any advertising banners or
contextual promotions) will be determined by MERCHANT, subject to AOL's
technical limitations, the terms of this Agreement and AOL's then-applicable
policies relating to advertising and promotions. Each Promotion will link only
to the Merchant Site and will promote only Products in the category directly
relating to the Shopping Channel department for which the Promotion is being
purchased by MERCHANT. MERCHANT acknowledges that the sole obligation of AOL is
to display the Promotion(s) in the Shopping Channel(s) in accordance with the
terms and conditions hereto.
3. PAYMENTS; REPORTS.
3.1 Placement Fees. MERCHANT
will pay AOL $480,000.00 for displaying the Promotion on the AOL Service,
▇▇▇.▇▇▇ and the CompuServe Service. The total amount of $480,000.00 will be
payable in equal quarterly installments, with the first such payment to be made
upon the Effective Date and subsequent quarterly payments to be made on the
first day of each subsequent quarter. MERCHANT agrees
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that except as specified herein, once the Promotion is installed, there will be
no refunds or proration of rates if MERCHANT elects to discontinue display of
the Promotion prior to expiration of the Term. Should AOL fail to display the
Promotion in accordance with the terms of this Agreement due to MERCHANT's
failure to comply with any requirement of this Agreement, MERCHANT will remain
liable for the full amount indicated above.
3.2 Other. In addition to the fees described in Section 3.1, upon execution
of this Agreement, MERCHANT will pay AOL an additional fee of [*****], which
shall be in lieu of all payments due to AOL by MERCHANT for the promotions and
advertising placements provided by AOL pursuant to the following agreements by
and between the Parties: The Marketplace Advertising Agreement dated as of April
1, 1997, as modified by the First and Second Addenda to such agreement dated as
of September 1, 1997 and October 16, 1997, respectively; the Advertising
Agreement dated as of June 13, 1997; the Insertion Order Agreement dated
September 29, 1997 (underlying the $[*****] invoice previously sent by AOL to
MERCHANT); and the Insertion Order Agreement dated October 13, 1997 (underlying
to the $[*****] invoice previously sent by AOL to MERCHANT).
3.3 Reports. AOL will provide MERCHANT with monthly usage information
related to the Promotion in substance and form determined by AOL. MERCHANT may
not distribute or disclose usage information to any third party without AOL's
prior written consent. AOL makes no guarantees regarding the accuracy,
reliability or completeness of any usage information provided to MERCHANT.
MERCHANT will provide AOL with monthly reports, in a form reasonably
satisfactory to AOL, which include the total number of (i) gross monthly items
purchased (ii) gross monthly orders placed and (iii) gross monthly sales
revenues generated, through the Merchant Site from purchases originating through
the AOL Service, ▇▇▇.▇▇▇ and the CompuServe Service (as applicable). AOL may not
distribute or disclose such information to any third party without MERCHANT's
prior written consent.
4. TERM. Unless otherwise rightfully terminated pursuant to the terms
hereto, the term of this Agreement will be for a period of twelve (12) months
commencing on the October 1, 1998 (the "Term").
GENERAL TERMS. The general legal terms and conditions set forth on Exhibit
C attached hereto are hereby made a part of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the Effective Date.
AMERICA ONLINE, INC. GARDEN ESCAPE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------- ------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Print Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President, Marketing Title: CEO and President & Operations
Date: 10-7-90 Date: 10-2-98
Tax ID/EIN#: ▇▇-▇▇▇▇▇▇▇
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
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EXHIBIT A
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Description of Products: The only categories of Products to be sold through the
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Merchant Site are as listed below. MERCHANT shall be entitled to offer, sell,
promote, or otherwise include in the Merchant Site any content or service
reasonably related to gardening and outdoor living (collectively, the "Merchant
C&S"); provided that MERCHANT shall not be entitled to promote any such Merchant
C&S through AOL-controlled content screens appearing within the AOL Service,
▇▇▇.▇▇▇ or the CompuServe Service unless (i) such Merchant C&S is directly
related to sale of the Products which are permitted to be promoted through such
screens in accordance with the following provisions (the "Permitted Products")
or (ii) MERCHANT has obtained AOL's prior written approval with respect to
promotion through such screens of any Merchant C&S which is not directly related
to sale of the Permitted Products.
Product List. Merchant shall be entitled to promote and sell any Product within
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the categories specified on Exhibit E, subject to the "Product Restrictions"
below. Merchant shall not be entitled to promote through AOL-controlled content
screens appearing within the AOL Service or ▇▇▇.▇▇▇ (absent AOL's prior written
approval with respect to any specific promotion) the following plant products:
(i) the items listed at roman numeral I under the heading "Live Goods," with the
exception of trees, wreaths, shrubs, vines, seeds, bulbs and fish; and (ii) the
items listed at roman numeral III under the subheading "Blooming/Gift Plants".
Product Restrictions. In no event will MERCHANT promote, or be entitled to
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promote, any plants through AOL-controlled content screens appearing within the
AOL Service or ▇▇▇.▇▇▇ (absent AOL's prior written approval with respect to any
specific promotion); provided that the restriction contained in the foregoing
clause is not intended to restrict MERCHANT promotion of trees, wreaths, shrubs,
vines, seeds, bulbs and fish. In addition, AOL shall have the right to impose
additional restrictions with respect to MERCHANT's promotion of plants
(including, without limitation, trees, wreaths, shrubs, vines, seeds, bulbs and
fish for purposes of any additional restrictions) under this Agreement (for
example, which would restrict MERCHANT's promotion of plants on the first page
of the Merchant Site directly linked to the promotions for MERCHANTS appearing
on the AOL Service or ▇▇▇.▇▇▇); provided that (i) any additional restrictions
which would directly impact the Merchant Site shall require thirty (30) days
prior written notice from AOL; and (ii) in the event that AOL imposes additional
restrictions (including, without limitation, any additional restrictions on
promotions of specific products), MERCHANT shall be entitled to terminate this
Agreement with fifteen (15) days prior written notice to AOL, in which case
MERCHANT shall only be responsible for the pro-rata portion of payments
allocable on a daily basis to the period preceding the effectiveness of such
termination. In the event that MERCHANT is uncertain regarding its ability to
promote a specific product in accordance with the terms of this Agreement,
MERCHANT may submit a promotion featuring such product to AOL for its approval.
Folowing MERCHANT's submission of a promotion featuring a specific product, AOL
will use commercially reasonable efforts to indicate to MERCHANT within two (2)
business days AOL's determination that the featured product is subject to
restriction under this Agreement. If AOL reasonably deems the additional product
in question to be restricted, then MERCHANT may, in its discretion, submit to
AOL substitute promotion featuring a different product which is not restricted
under the terms of this Agreement.
Impressions: The screens on which the promotions appear on each of the AOL
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Service, ▇▇▇.▇▇▇ and the CompuServe Service will receive a minimum of [****]
Impressions in the aggregate, subject to the remainder of this paragraph. In the
event there is (or will be in AOL's reasonable judgment) a shortfall in
Impressions as of the end of the Initial Term (a "Shortfall"), AOL will provide
MERCHANT, as its sole remedy, with advertising placements through reasonably
comparable advertising on AOL properties (determined by AOL) which has a total
value, based on AOL's then-current advertising rate card, equal to [****.] For
purposes of this Agreement, "Impression" shall mean user exposure to the
department level screen containing the applicable promotion or advertisement, as
such exposure may be reasonably determined and measured by AOL in accordance
with its standard methodologies and protocols.
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Description of Specific Promotion(s): Please check the box next to the
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Promotion(s) that MERCHANT is purchasing.
[_] ANCHOR PROMOTION
MERCHANT will become an "Anchor" in the Home, Kitchen and Garden
department(s) of the Shopping Channel on the AOL Service, ▇▇▇.▇▇▇ and the
CompuServe Service. As an Anchor in a department, MERCHANT will be entitled to
the following:
. Principal Exposure on the AOL Service, ▇▇▇.▇▇▇ and the CompuServe
Service: One continuous (24/7) [****] button with corporate brand or
logo on the department front screen of the AOL Service.
. One continuous (24/7) [****] button with corporate brand or logo on
the department front screen of ▇▇▇.▇▇▇. One continuous (24/7) [****]
button with corporate brand or logo on the department front screen of
the CompuServe Service.
Additional Promotion on the AOL Service Shopping Channel.
. One continuous (24/7) [****] with featured product to promote store
product offerings on the corresponding department screen.
. Product listing availability through the AOL Service Shopping channel
search screen. Web MERCHANT search links to storefront.
. Up to [****] AOL Keywords(TM) for use from the AOL Service, for
registered MERCHANT trade name or trademark (subject to the other
provisions contained herein).
. [****] discount from the then-current rate card on purchases of
additional advertising banners or buttons on the AOL Service, ▇▇▇.▇▇▇
and the CompuServe Service, subject to availability for the period
requested (with such purchases to be made in accordance with the then-
applicable Standard Advertising Insertion Order for the property in
question).
Eligibility to participate in the following AOL Shopping promotional
programs (the "Program Areas"):
Bargain Basement by Department
Quick Gifts
Seasonal Catalogs or Special Events areas (e.g., Christmas Shop)
Order from Print Catalogs
Gift Reminder
Newsletters
AOL's Quick Checkout
BizRate(R) Program
All additional Promotions on ▇▇▇.▇▇▇ and the CompuServe Service not
specified herein will be determined at AOL's reasonable and sole discretion;
provided that the additional, standard Promotions to be provided to the MERCHANT
within the Shopping areas on ▇▇▇.▇▇▇ and the CompuServe Service will be
comparable in nature to the additional, standard Promotions provided to other
similarly situated MERCHANTs in the same category (i.e. Anchor, Tenant or More
Stores).
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
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EXHIBIT B
Standard Shopping Channel Terms & Conditions
1. Merchant Site. MERCHANT will work diligently to develop and implement the
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Merchant Site. consisting, in part, of the specific categories of Product(s) set
forth in Exhibit E to the Shopping Channel Promotional Agreement which has been
executed by AOL and MERCHANT (the "Promotional Agreement," and, collectively
with these Standard Shopping Channel Terms and Conditions, the "Agreement") and
any additional categories of Products agreed upon in writing by the Parties
subsequent to the Effective Date. Except as mutually agreed upon in writing by
the Parties, the Merchant Site will contain only Products that are directly
related to the categories of MERCHANT Products listed in Exhibit E and Merchant
C&S reasonably related to gardening and outdoor living: provided that AOL's
agreement with respect to any additional Products or Merchant C&S shall not be
unreasonably withheld or delayed. All sales of Products through the Merchant
Site will be conducted through a direct sales format, absent the mutual consent
of the Parties. MERCHANT will ensure that the Merchant Site does not in any
respect promote, advertise, market or distribute the products, services or
content of any other Interactive Service Provider.
2. Management of Merchant Site. MERCHANT will manage, review, delete, edit,
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create, update and otherwise manage all Products available on or through the
Merchant Site, in a timely and professional manner and in accordance with the
terms of this Agreement and AOL's applicable Terms of Service and Privacy Policy
(as set forth on the AOL Service). To the extent that Merchant Site includes
AOL's Quick Checkout (as defined in Section 3 of Exhibit B) MERCHANT will ensure
that the AOL Quick Checkout is of equal placement and promotion prominence to
other available payment options. MERCHANT will ensure that the Merchant Site is
current, accurate and well-organized at all times. MERCHANT warrants that the
Merchant Site and any material contained therein: (i) will conform to AOL's
applicable Terms of Service and Privacy Policy; (ii) will not infringe on or
violate any copyright, trademark, U.S. patent or any other third party right,
including without limitation, any music performance or other music-related
rights; and (iii) will not contain any Product which violates any applicable law
or regulation, including those relating to contests, sweepstakes or similar
promotions. AOL will have no obligations with respect to the Products available
on or through the Merchant Site, including, but not limited to, any duty to
review or monitor any such Products; provided, however, that AOL reserves the
right to review and approve any additional Product categories (in addition to
those listed in Exhibit E) and any third-party content, products or services
that MERCHANT makes or desires to make available through the Merchant Site. Upon
AOL's request, MERCHANT agrees to include within the Merchant Site a product
disclaimer (the specific form and substance to be mutually agreed, upon by the
Parties) indicating that transactions are solely between MERCHANT and the AOL
Users who purchase products from MERCHANT. MERCHANT will ensure that neither
MERCHANT nor any content, product or service contained within the Merchant Site,
linked to the Promotion or otherwise relating the Agreement shall (i) disparage
AOL; (ii) promote a competitor of AOL; or (iii) state or imply that AOL endorses
MERCHANT's Products.
3. Optimization of Merchant Site. MERCHANT will take reasonable steps to conform
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its promotion and sale of Products through the Merchant Site directly accessible
from the AOL Service to then-existing, mutually agreed upon commerce
technologies. One tool which AOL intends to make available for use by MERCHANT
is 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
MERCHANT for order fulfillment ("AOL Quick Checkout"). MERCHANT shall have the
right to determine whether or not to incorporate AOL Quick Checkout into the
Merchant Site in its discretion; provided that, MERCHANT acknowledges that: (i)
AOL may subsequently deem incorporation of Quick Checkout as a requirement for a
merchant's qualification as an AOL "Certified Merchant"; and (ii) if, in such
case, MERCHANT opts to forego
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incorporation of Quick Checkout, MERCHANT would not be entitled to further
designation as an AOL "Certified Merchant." AOL reserves the right to review and
test the Merchant Site from time to time to determine whether the site is
compatible with AOL's and CompuServe's then- available client and host software
and their corresponding networks. AOL will be entitled to require reasonable
changes to the content, features and/or functionality within any screen or form
created using (a) AOL's proprietary form technology (a "Rainman Area") or (b)
HTML-based World Wide Web form (or any other forms created using a technology
other than AOL's proprietary form technology) ("Web Forms") to the extent such
Rainman Area or Web Forms will, in AOL's good faith judgment, adversely affect
operations of the AOL Service, ▇▇▇.▇▇▇ and the CompuServe Service. MERCHANT
agrees to optimize operations of the Merchant Site consistent with Exhibit D
attached hereto.
4. Removal of Content. AOL will have the right to remove, or direct MERCHANT to
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remove, any content, materials or information (collectively, "Content") in the
Merchant Site (including, without limitation, any features, which, as reasonably
determined by AOL (i) violates AOL's then-standard Terms of Service or Privacy
Policy (as set forth on the AOL Service), any other standard, written AOL policy
or the terms of this Agreement. (ii) is inconsistent in any manner with the
terms of the Agreement or with the description of Product categories set forth
in Exhibit E or (iii) is otherwise in conflict with AOL's programming objectives
or its existing contractual commitments to third parties. In addition, in the
event that AOL reasonably believes that software, technology or other technical
components of the Merchant Site Will materially affect AOL or CompuServe or
other operations, MERCHANT will work in good faith with AOL to limit access to
such components from the AOL Service, ▇▇▇.▇▇▇ and the CompuServe Service.
MERCHANT will take all commercially reasonable steps using MERCHANT's
then-available technology to block access by AOL Users to Content which AOL
desires to remove or have removed pursuant to any of the foregoing. In the event
that MERCHANT cannot, through such efforts, block access to the Content in
question, then MERCHANT will provide AOL prompt written notice of such fact no
later than five (5) days after AOL notifies MERCHANT of AOL's objection to such
Content. AOL may then, at its option, either (i) restrict access by AOL Users to
the Content in question using technology available to AOL or (ii) terminate all
links, promotions and advertisements for the Merchant Site until such time as
the Content in question is no longer displayed. MERCHANT will cooperate with
AOL's reasonable requests to the extent AOL elects to implement any of the
foregoing access restrictions. In the event that AOL takes action pursuant to
this Section 4 of Exhibit B to block, remove or restrict access to a substantial
and material component of Content in the Merchant Site, then MERCHANT shall have
the right to terminate this Agreement upon fifteen (15) days written notice to
AOL (unless AOL, following receipt of written notice from MERCHANT, agrees to
forego, the restrictions in question), in which case MERCHANT shall only be
responsible for the pro-rata portion of payments allocable on a daily basis to
the period preceding the effectiveness of such termination (and AOL shall refund
to MERCHANT any amounts which MERCHANT has paid pursuant to Section 3.1 in
excess of such pro-rata portion of payments). For the purposes of this Section,
a "substantial and material component of Content in the Merchant Site" shall
mean any Product, service, or Content which is directly related to the Product
categories set forth in Exhibit E (or any component of such Products, services
or Content), excluding any Product, service, or Content (or component thereof)
which in AOL's reasonable discretion is deemed obscene, offensive, defamatory,
illegal, incompatible with AOL's technical requirements, or in contravention of
AOL's then standard Terms of Service or advertising policies.
5. Promotional Placement. MERCHANT acknowledges that the sole obligation of AOL
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is to display the Promotion in the Shopping Channel in accordance with the terms
and conditions of the Agreement. The specific positioning of the Promotion on
any screen in the Shopping Channel shall be as determined by AOL, consistent
with the editorial composition of such screen and the nature of the Promotion
being purchased by MERCHANT. AOL reserves the right to reject, cancel or remove
at any time the Promotion for any reason within fifteen (15) days prior notice
to MERCHANT, and AOL will refund to MERCHANT a pro-rata portion of the fee
allocable to the display of the Promotion based on the number of days that the
Promotion
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was displayed. AOL will not be liable in any way for any rejection, cancellation
or removal of the Promotion. AOL reserves the right to redesign or modify the
organization, navigation, structure, "look and feel" and other elements of the
AOL Service, ▇▇▇.▇▇▇ and the CompuServe Service, at its; sole discretion at any
time without prior notice. In the event such modifications materially affect the
placement of the Promotion, AOL will notify MERCHANT and will work with MERCHANT
to display the Promotion in a comparable location and manner. If AOL and
MERCHANT cannot reach agreement on a substitute placement, MERCHANT will have
the right to cancel the Promotion, upon fifteen (15) days advance written notice
to AOL. In such case, MERCHANT will only be responsible for the pro-rata portion
of payments attributable to the period from the Effective Date through the end
of the fifteen (15) day notice period. MERCHANT may not resell, trade, exchange,
barter or broker to any third party any promotional or advertising space which
is the subject of this Agreement. MERCHANT will not be entitled to any refund or
proration for delays caused by MERCHANTs failure to deliver to AOL any materials
relating to the Promotion.
6. Product Offering. Subject to the limitations imposed by AOL with respect to
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MERCHANT's offering of Products hereunder contained elsewhere in this Agreement,
MERCHANT will ensure that the Merchant Site generally includes all of the
Products and other Content (including, without limitation, any features, offers,
contests, functionality or technology) that are then made available by or on
behalf of MERCHANT through any Additional MERCHANT Channel.
7. Principal and Terms. Subject to the limitations imposed by AOL with respect
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to MERCHANTs offering of Products hereunder contained elsewhere in this
Agreement, MERCHANT will ensure that (i) the prices for Products in the MERCHANT
Site generally do not exceed the prices for the Products offered by or on behalf
of MERCHANT through any Additional MERCHANT Channel; and (ii) the terms and
conditions related to Products in the MERCHANT Site are generally no less
favorable in any respect to the terms and conditions for the Products offered by
or on behalf of MERCHANT through any Additional MERCHANT Channel. For purpose of
this Agreement, Additional MERCHANT Channel means any other distribution channel
(e.g., an Interactive Service other than AOL) through which MERCHANT makes
available an offering comparable in nature to the MERCHANT Site.
8. Special Offers. MERCHANT will promote a reasonable number (as determined by
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MERCHANT) of special offers through the Merchant Site (e.g., offers enabling AOL
Users to purchase specified Product(s) at a substantial discount from prices
offered by MERCHANT through other sales channels, free gift to AOL Users upon
the purchase of Product(s), the availability of Product(s) prior to their
availability through other sales channels, and AOL-branded reward or frequent
purchaser points to AOL Users for the purchase of Product(s)) (the "Special
Offers"). MERCHANT will provide AOL with reasonable prior notice of Special
Offers so that AOL can market the availability of such Special Offers in the
manner AOL deems appropriate in its editorial discretion.
9. Customer Service. It is the sole responsibility of MERCHANT to provide
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customer service to persons or entities purchasing Products through the AOL
Service, ▇▇▇.▇▇▇ or the CompuServe Service ("Customers"). MERCHANT will bear
full responsibility for all customer service, including without limitation,
order processing, billing, fulfillment, shipment, collection and other customer
service associated with any Products offered, sold or licensed through each
Merchant Site, and AOL will have no obligations whatsoever with respect thereto.
MERCHANT will receive all entails from Customers via a computer available to
MERCHANT's customer service staff and generally respond to such emails within
one business day of receipt. MERCHANT will receive all orders electronically and
generally process all orders within one business day of receipt, provided
Products ordered are not advance order items. MERCHANT will ensure that all
orders of Products are received, processed, fulfilled and delivered on a timely
and professional basis. MERCHANT will offer AOL Users who purchase Products
through such the Merchant Site a money-back satisfaction guarantee. MERCHANT
will bear all responsibility for compliance with federal, state and local
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laws in the event that Products are out of stock or are no longer available at
the time an order is received. MERCHANT will also comply with the requirements
of any federal, state or local consumer protection or disclosure law. Payment
for Products will be collected by MERCHANT directly from customers. MERCHANT's
order fulfillment operation will be subject to AOL's reasonable review.
10. Merchant Certification Program. MERCHANT will participate in any generally
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applicable "Certified Merchant" program operated by AOL or its authorized agents
or contractors. Such program may require merchant participants on an ongoing
basis to meet certain reasonable standards relating to provision of electronic
commerce through the AOL Service, ▇▇▇.▇▇▇ and the CompuServe Service and may
also require the payment of certain reasonable certification fees to AOL or its
authorized agents or contractors operating the program. MERCHANT agrees to (i)
participate in the BizRate Program, a service offered by Binary Compass
Enterprises, Inc. (BCE), which provides opt-in satisfaction surveys to Users who
purchase Products through such Merchant 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. MERCHANT's participation shall be based upon a separate written
agreement which MERCHANT will enter into with BCE, or other such party
reasonably designated or approved by AOL. MERCHANT hereby authorizes BCE to
provide to AOL any and all reports provided to MERCHANT 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.
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EXHIBIT C
Standard Legal Terms & Conditions
1. Production and Technical Services. Unless expressly provided for elsewhere in
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the Shopping Channel Promotional Agreement which has been executed by AOL and
MERCHANT (the "Promotional Agreement," and, collectively with these Standard
Legal Terms and Conditions, the "Agreement") Agreement, (i) AOL will have no
obligation to provide any creative. design, technical or production services to
MERCHANT and (ii) the nature and extent of any such services which AOL may
provide to MERCHANT will be as determined by AOL in its sole discretion. The
terms regarding any creative, design, technical or productions services provided
by AOL to MERCHANT will be as mutually agreed upon by the parties in a separate
written work order.
2. AOL Accounts. To the extent MERCHANT has been granted any AOL accounts,
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MERCHANT 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 MERCHANT. Upon the termination of this Agreement, all such 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.
3. Taxes. MERCHANT 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 was the collection or withholding thereof,
including attorneys' fees.
4. 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, and all other promotional materials
related to the Merchant Site and/or referencing the other Party and/or its trade
names, trademarks, and service marks; provided, however, that a Party shall not
require the approval of the other Parry n connection with use of screen shots of
the Merchant Site (as distributed through the AOL Service, ▇▇▇.▇▇▇ or CompuServe
Service) for promotional purposes. MERCHANT will not issue any press releases,
promotions or public statements concerning the terms of the Agreement, absent
AOL's express prior written approval. Notwithstanding the foregoing, (a) 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, prompt notice thereof will be provided to the other Party and (b)
following the earlier of the (x) the initial public announcement of the business
relationship between the Parties in accordance with the approval and other
requirements contained herein and (y) the commercial launch of MERCHANT's
Promotions provided for hereunder, 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.
5. 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 the Agreement and to perform the acts required of it
hereunder; (ii) the execution of the Agreement by such Party, and the
performance by such Party of its obligations and duties hereunder, do not and
will not violate any agreement to which such Party is a Party or by which it is
otherwise bound; (iii) when executed and delivered by such Party, the Agreement
will constitute the legal, valid and binding obligation of such Party,
enforceable against such Party in accordance with its terms; and (iv) such Party
acknowledges that the other Party makes no representations, warranties or
agreements related to the subject matter hereof that are not expressly provided
for in the Agreement.
-9-
6. License. MERCHANT hereby grants AOL a non-exclusive worldwide license to
-------
reproduce, display, perform, transmit and promote the Merchant Site and all
content products and services offered therein or otherwise provided by MERCHANT
in connection herewith (e.g., offline or online promotional content; Promotions,
etc.) through the AOL Service, ▇▇▇.▇▇▇ and the CompuServe Service and through
any other product or service owned, operated, distributed or authorized to be
distributed by or through AOL or its affiliates worldwide through which such
Party elects to offer the Merchant Site (which may include, without limitation,
Internet sites promoting AOL products and services and any "offline" information
browsing products of AOL or its affiliates), Users of the AOL Service, ▇▇▇.▇▇▇
and the CompuServe Service (as applicable) ("AOL Users") will have the right to
access and use the Merchant Site. Subject to such license, MERCHANT retains all
right, title to and interest in the Merchant Site. During the Term, AOL will
have the right to use MERCHANT's trademarks, trade names and service marks in
connection with performance of this Agreement (the "Merchant Marks") subject to
any written guidelines provided in writing to AOL. MERCHANT will not use,
display or modify AOL's trademarks, tradenames or servicemarks in any manner,
absent AOL's express prior written approval; provided that, to the extent AOL
has provided such approval for a use by MERCHANT of an AOL trademark, tradename
or servicemark (an "AOL ▇▇▇▇". and, with the "Merchant Marks," the "Marks"),
MERCHANT will be entitled to use such AOL ▇▇▇▇ in strict accordance with (i) the
conditions and limitations of the applicable AOL approval and (ii) any written
guidelines providing in writing to MERCHANT. AOL shall be deemed to have
approved use of an AOL ▇▇▇▇ to be used by MERCHANT in connection with a "Back to
AOL" button to appear on the Merchant Site, provided AOL subsequently agrees in
writing with MERCHANT on the AOL ▇▇▇▇ to be used by Merchant and approves in
writing the special creative execution using such AOL ▇▇▇▇. In addition, the
following terms shall apply to any use by a Party of the Marks of the other
Party to the extent otherwise permitted above. Such use (i) shall not create a
unitary composite ▇▇▇▇ involving a ▇▇▇▇ of the other Party without the prior
written approval of such other Party; and (ii) shall include display of 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. Each Party agrees that all use of the other Party's Marks
hereunder 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 any right, title, or interest in or to such Marks other than the
licenses expressly granted herein. Each Party agrees that the nature and quality
of its products and services supplied in connection with the other Party's Marks
will conform to quality standards set by the other Party. 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.
7. Confidentiality. Each Party acknowledges that Confidential Information may be
---------------
disclosed to the other Party during the course of this Agreement. Each Party
agrees that it will take reasonable steps, at least substantially equivalent to
the steps it takes to protect its own proprietary information, during the term
of this Agreement, and for a period of three years following expiration or
termination of this Agreement, to prevent the duplication or disclosure of
Confidential Information of the other Party, other than by or to its employees
or agents who must have access to such Confidential Information to perform such
Party's obligations hereunder, who will each agree to comply with this
provision. "Confidential Information" means 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
Users, technical processes and formulas, source codes, product designs, sales,
cost and other unpublished financial information, product and business loans,
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, (d) lawfully obtained from any third party, or (e) required or
reasonably advised to be disclosed by law.
8. Limitation of Liability; Disclaimer; Indemnification.
-----------------------------------------------------
-10-
(a) Liability. UNDER NO CIRCUMSTANCES, WILL EITHER PARTY BE LIABLE TO
THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY
DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, THE SALE OF PRODUCTS, THE USE OR
INABILITY TO USE THE AOL NETWORK, THE AOL SERVICE, ▇▇▇.▇▇▇, THE COMPUSERVE
SERVICE OR THE MERCHANT SITE, OR ARISING FROM ANY OTHER PROVISION OF THIS
AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS
OR LOST BUSINESS (COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY
WILL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE
CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO
PARAGRAPH (C) BELOW. EXCEPT AS PROVIDED TO PARAGRAPH (C) BELOW, (i) LIABILITY
ARISING UNDER THIS AGREEMENT WILL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE
DAMAGES, AND (ii) AOL WILL NOT BE LIABLE TO MERCHANT UNDER THE AGREEMENT FOR
MORE THAN THE AMOUNTS THEN PAID TO AOL BY MERCHANT HEREUNDER.
(b) No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THE
AGREEMENT, NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS
ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ▇▇▇.▇▇▇, THE
AOL SERVICE OR NETWORK, THE COMPUSERVE SERVICE OR THE MERCHANT SITE, INCLUDING
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND
IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AOL SPECIFICALLY DISCLAIMS ANY
WARRANTY REGARDING (i) THE PROFITABILITY OF THE MERCHANT SITE, (ii) THE NUMBER
OF PERSONS WHO WILL ACCESS OR "CLICK-THROUGH" THE PROMOTION, (iii) ANY BENEFIT
MERCHANT MIGHT OBTAIN FROM INCLUDING THE PROMOTION WITHIN THE AOL SERVICE,
▇▇▇.▇▇▇ OR THE COMPUSERVE SERVICE OR (iv) THE FUNCTIONALITY, PERFORMANCE OR
OPERATION OF THE AOL OR COMPUSERVE SERVICES WITH RESPECT TO THE PROMOTION.
(c) Indemnity. Either Party will defend, indemnify, save and hold
harmless the other Party and the officers, directors, agents, affiliates,
distributors, franchisees and employees of the other Party from any and all
third party claims, demands, liabilities, costs or expenses, including
reasonable attorneys' fees ("Liabilities"), resulting from the indemnifying
Party's material breach of any duty, representation, or warranty of the
Agreement, except where Liabilities result from the gross negligence or knowing
and willful misconduct of the other Party.
(d) Claims. If a Party entitled to indemnification hereunder (the
"Indemnified Party" becomes aware of any matter it believes is indemnifiable
hereunder involving any claim, action, suit, investigation, arbitration or other
proceeding against the Indemnified Party by any third ▇▇▇▇▇ (each an "Action"),
the Indemnified Party will give the other Party (the "Indemnifying Party" prompt
written notice of such Action. Such notice will (i) provide the basis on which
indemnification is being asserted and (ii) be accompanied by copies of all
relevant pleadings, demands, and other papers related to the Action and in the
possession of the Indemnified Party. The Indemnifying Party will have a period
of ten (10) days after delivery of such notice to respond. If the Indemnifying
Party elects to defend the Action or does not respond within the requisite ten
(10) day period, the Indemnifying Party will be obligated to defend the Action,
at its own expense, and by counsel reasonably satisfactory to the Indemnified
Party. The Indemnified ▇▇▇▇▇ will cooperate, at the expense of the Indemnifying
Party, with the Indemnifying Party and its counsel in the defense and the
Indemnified Party will have the eight 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,
-11-
the Indemnified Party will be free, without prejudice to any of the Indemnified
Party's rights hereunder, to compromise or defend (and control the defense of)
such Action. In such case, the Indemnifying Party will cooperate, at its own
expense, with the Indemnified Party and its counsel in the defense against such
Action and the Indemnifying Party will have the right to. participate fully, at
its own expense, in the defense of such Action. Any compromise or settlement of
an Action will require the prior written consent of both Parties hereunder, such
consent not to be unreasonably withheld or delayed.
(e) Acknowledgment. AOL and MERCHANT 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 the Agreement are intended to limit the
circumstances and extent of liability. The provisions in paragraphs (a) through
(d) above and this paragraph (e) will be enforceable independent of and
severable from any other enforceable or unenforceable provision of this
Agreement.
9. Solicitation of Subscribers.
----------------------------
(a) MERCHANT will not send unsolicited, commercial e-mail 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 MERCHANT or (ii) provided information to MERCHANT
through a contest, registration, or other communication, which included notice
to the AOL User that the information provided could result in commercial e-mail
being sent to that AOL User by MERCHANT or its agents. More generally, any
commercial e-mall to be sent through or into AOL's products or services shall 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 the AOL service in question).
(b) MERCHANT shall ensure that its collection, use and disclosure of
information obtained from AOL Users under this Agreement ("User Information")
complies with (i) all applicable laws and regulations and (ii) AOL's standard
privacy policies, available on the AOL Service at the keyword term "Privacy".
(c) MERCHANT will not disclose User Information to any third party in a
manner that identifies AOL User as end users of an AOL product or service or use
User Information collected under this Agreement, to market an [*****]
competitive with AOL; provided that the restrictions in this subsection
(c) shall not restrict MERCHANT's use of any information collected independently
of this Agreement. For the purpose of this Agreement, the term [*****]
shall mean and refer to an entity offering one or more of the
following, [*****.]
10. AOL User Communications. To the extent MERCHANT sends any form of
------------------------
communications to AOL Users, MERCHANT will promote the Merchant Site as the
location at which to purchase Products (as compared to any more general or other
site or location). In addition, in any communication to AOL Users or on the
Merchant Site, MERCHANT will not encourage AOL Users to take any action
inconsistent with the scope and purpose of this Agreement, [*****.]
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
-12-
11. Navigation Tools. The Keyword online search terms made available on the AOL
-----------------
service for use by AOL Members, combining AOL's Keyword online search modifier
with a term or phrase specifically related to MERCHANT (and determined in
accordance with the terms of this Agreement), any Keyword(TM) Search terms to be
directed to Merchant's Site shall be (i) subject to availability and (ii)
limited to the combination of the Keyword(TM) search modifier combined with a
registered trademark of MERCHANT. AOL reserves the right at any time to revoke
MERCHANT's use of any Keyword(TM) that are not registered trademarks of
MERCHANT. MERCHANT 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 aid interest
MERCHANT holds in MERCHANTs registered trademark independent of the Keyword
Search Term. Without limiting the generality of the foregoing, MERCHANT will
not: (a) attempt to register or otherwise obtain trademark or copyright
protection In the Keyword Search Term; or (b) use the Keyword Search Term,
except for the purposes expressly required or permitted under this Agreement. To
the extent AOL allows AOL Users to "bookmark" the URL or other locator for the
Merchant Site, such bookmarks will be subject to AOL's control at all times.
Upon the termination of this Agreement, MERCHANT's rights to any Keywords and
bookmarking will terminate. For purposes of this Agreement, "Keyword Search
Terms" shall mean the Keyword online search terms made available on the AOL
Service for use by AOL Members, combining AOL's Keyword online search modifier
with a term or phrase specifically related to MERCHANT (and determined in
accordance with the terms of this Agreement).
12. Miscellaneous. Neither Party will be liable for, or be considered in breach
--------------
of or default under the Agreement on account of, any delay or failure to perform
as required by the Agreement (except with respect to payment obligations) 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. MERCHANT's rights, duties, and obligations under the Agreement are
not transferable. The Parties to the Agreement are independent contractors.
Neither Party is an agent, representative or partner of the other Party. Neither
Party will have any right, power or authority to enter into any agreement for or
on behalf of, or incur any obligation or liability of, or to otherwise bind, the
other Party. The failure of either Party to insist upon or enforce strict
performance by the other Party of any provision of the Agreement or to exercise
any right under the Agreement will not be construed as a waiver or
relinquishment to any extent of such Party's right to assert or rely upon any
such provision or right in that or any other instance; rather, the same will be
and remain in full force and effect. Sections 3, 4, 7, 8, 9, 11 and 12 of these
Standard Legal Terms and Conditions, will survive the completion, expiration,
termination or cancellation of the Promotional Agreement. Either Party may
terminate the Agreement at any time with written notice to the other Party in
the event of a material breach of the Agreement by the other Party, which
remains uncured after thirty days written notice thereof. Any notice, approval,
request, authorization, direction or other communication under this Agreement
will be given in writing and will be deemed to have been delivered and given for
all purposes (i) on the delivery date if delivered by electronic mail on AOL's
network or systems (to screenname "▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇" in the case of AOL) or by
confirmed facsimile; (ii) on the delivery date if delivered personally to the
Party to whom the same is directed; (iii) one business day after deposit with a
commercial overnight carrier, with written verification of receipt; or (iv) five
business days after the mailing date, whether or not actually received, if sent
by U.S. mail, return receipt requested, postage and charges prepaid, or any
other means of rapid mail delivery for which a receipt is available. In the case
of AOL, such notice will be provided to both the Senior Vice President for
Business Affairs (fax no. ▇▇▇-▇▇▇-▇▇▇▇) 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 MERCHANT, except as otherwise specified herein,
the notice address will be the address for MERCHANT set forth in the first
paragraph of this Agreement, with the other relevant notice information,
including the recipient for notice and, as applicable, such recipient's fax
number or AOL email address, to be as reasonably identified by AOL. The
Agreement sets forth the entire agreement between MERCHANT and AOL, and
supersedes any and all prior agreements of AOL or MERCHANT with respect to the
transactions set forth herein. No change, amendment or modification of any
provision of the Agreement will be valid unless set
-13-
forth in a written instrument signed by the Party subject to enforcement of such
amendment. MERCHANT will promptly inform AOL of any information related to the
Merchant Site which could reasonably lead to a claim, demand, or liability of or
against AOL and/or its affiliates by any third party. MERCHANT will not assign
this Agreement or any right, interest or benefit under this Agreement without
the prior written consent of AOL, provided that consent will not be required 'in
connection with an assumption of the Agreement by any successor to MERCHANT
(including, without limitation, by way of merger, consolidation or sale of all
or substantially all of MERCHANT's stock or assets). Subject to the foregoing,
this Agreement will be fully binding upon, inure to the benefit of and be
enforceable by the Parties hereto and their respective successors and assigns.
Except where otherwise specified herein, the rights and remedies granted to a
Party under the 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. In
the event that any provision of the Agreement is held invalid by a court with
jurisdiction over the Parties to the Agreement, (i) such provision will be
deemed to be restated to reflect as nearly as possible the original intentions
of the Parties in accordance with applicable law and (ii) the remaining terms,
provisions, covenants and restrictions of this Agreement will remain in full
force and effect. The Agreement may be executed in counterparts, each of which
will be deemed an original and all of which together will constitute one and the
same document. The Agreement will be interpreted, construed and enforced in all
respects in accordance with the laws of the Commonwealth of Virginia, except for
its conflicts of laws principles. MERCHANT hereby irrevocably consents to the
exclusive jurisdiction of the courts of the Commonwealth of Virginia and the
federal courts therein in connection with any action arising under this
Agreement.
-14-
EXHIBIT D
Operations
1. Capacity. MERCHANT will be responsible for all communications, hosting and
---------
connectivity costs and expenses associated with the Merchant Site. MERCHANT will
provide all hardware, software, telecommunications lines and other
infrastructure necessary to meet traffic demands on the Merchant Site from the
AOL Service, ▇▇▇.▇▇▇ and the CompuServe Service, except for the proprietary
client software necessary to access the AOL and CompuServe Services. In the
event that MERCHANT fails to provide the requisite infrastructure, AOL will have
the right to regulate the promotions it provides to MERCHANT hereunder to the
extent necessary to minimize user delays until such time as MERCHANT corrects
its infrastructure deficiencies. In the event that MERCHANT elects to crests a
custom version of the Merchant Site in order to comply with the terms of this
Agreement. MERCHANT will bear responsibility for the implementation, management
and cost of such mirrored site.
2. Optimization; Speed. MERCHANT will use commercially reasonable efforts to
--------------------
ensure that: (a) the functionality and features within the Merchant Site are
optimized for the client software then in use by AOL Users; and (b) the Merchant
Site is designed and populated in a manner that minimizes delays when AOL Users
attempt to access such site. At a minimum, MERCHANT will ensure that the
Merchant Site's data transfers initiate within [****].
3. Service Level Response. MERCHANT agrees to use commercially reasonable
-----------------------
efforts to address material technical problems (over which MERCHANT exercises
control) affecting use by AOL Users of the Merchant Site (a "MERCHANT Technical
Problem") promptly following notice thereof. In the event that AOL has received
substantial AOL Member complaints regarding a MERCHANT Technical Problem based
on MERCHANT's failure to satisfy a site operating standard specified in this
Agreement (and MERCHANT is unable to promptly resolve such MERCHANT Technical
Problem following notice thereof), AOL will have the right to regulate the
promotions it provides to MERCHANT hereunder until such time as MERCHANT
corrects the MERCHANT Technical Problem at issue).
4. Monitoring. MERCHANT will ensure that the performance and availability of the
-----------
Merchant Site is monitored on a continuous basis. MERCHANT will provide
escalation procedures (e.g., contact names and notification mechanisms) for use
in connection with technical problems, as described more fully above.
5. Security. MERCHANT 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).
MERCHANT will facilitate periodic reviews of the MERCHANT Site by AOL in order
to evaluate the security risks of such site. MERCHANT will fix any security
risks or breaches of security as may be identified by AOL's Operations Security.
6. Technical Performance.
----------------------
(i) MERCHANT will design the Merchant Site to support the Windows version of
the Microsoft Internet Explorer 3.0 and 4.0 browser, the Macintosh version of
the Microsoft Internet Explorer 3.0. and make commercially reasonable efforts to
support all other AOL browsers listed at:
"▇▇▇▇://▇▇▇▇▇▇▇▇▇.▇▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇.▇▇▇▇."
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
-15-
(ii) To the extent MERCHANT creates customized pages on the Merchant Site
for AOL Members, MERCHANT 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: ▇▇▇▇://▇▇▇▇▇▇▇▇▇.▇▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇.▇▇▇▇.
---------------------------------------------
(iii) MERCHANT will periodically review the technical information made
available by AOL at ▇▇▇▇://▇▇▇▇▇▇▇▇▇.▇▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇.▇▇▇▇.
(iv) MERCHANT will design its site to support HTTP 1.0 or later protocol as
defined In RFC 1945 (available at "▇▇▇▇://▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇/▇▇▇▇▇▇▇.▇▇▇▇") and
to adhere to AOL's parameters for refreshing cached information listed at:
▇▇▇▇://▇▇▇▇▇▇▇▇▇.▇▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇.▇▇▇▇.
---------------------------------------------
(v) Prior to releasing material, new functionality or features through the
MERCHANT Site ("New Functionality"), MERCHANT 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.
7. AOL Internet Products Partner Support. AOL will provide MERCHANT 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 MERCHANT or
support for any technologies, databases, software or other applications which
are not supported by AOL or are related to any MERCHANT area other than the
Merchant Site. Support to be provided by AOL is contingent on MERCHANT providing
to AOL demo account information (where applicable), a detailed description of
the Merchant Site's software, hardware and network architecture and access to
the Merchant Site for purposes of such performance and load testing as AOL
elects to conduct. As described elsewhere in this Agreement, MERCHANT is fully
responsible for all aspects of hosting and administration of the Merchant Site
and must ensure that the site satisfies the specified access and performance
requirements as outlined in this Exhibit.
-16-
EXHIBIT E
---------
Garden Escape Product Categories (2 Pages)
------------------------------------------
I. LIVE GOODS
Plants
. Landscaping plant collections (3-7 potted plants shipped together)
. Perennials (4", 6" or 1 gallon nursery pot sizes)
. Herbs (4" nursery pots)
. Scented geraniums (4" nursery pots)
. Roses (bare root and 1 gallon potted)
. Peonies (bare root)
. Heaths and Heathers (6", 1 gallon, 2 gallon nursery pots)
. Cacti & Succulents (2", 4", 6" nursery pots)
. Orchids (4", 6", 12" nursery pots)
. Toplaries (4", 6",12" nursery pots)
. Annuals (2", 4", 6" nursery pots)
. Flower and Vegetable Seedlings (6-8 week old seedlings)
. Trees, Shrubs, and Vines (between 4"-5 gallon pots, and bare root)
Seeds
. Vegetable
. Flower
. Ornamental
. Trees
Bulbs
. Fall blooming
. Spring blooming
. Indoor forcing bulbs
. Bulb collections
. Bulb kits (bulbs, tool, fertilizer, etc.)
Water Gardening:
. Water lilies
. Lotus
. Iris
. Floating plants
. Submerged plants
. Marginal plants
. Fish
II. HARD GOODS
Seed Starting
Seed starting kits
. Seed starting supplies
. Grow lights
Organics and Composting
. Composing products
. Fertilizers
. Organic pest control solutions
. Beneficial insects
Tools & Essentials
. Garden tools
. Boots, clogs, and gloves
. Books
. Garden accesories
. Greenhouses
. Irrigation supplies
. Pots and containers
. Water gardening supplies and accessories
Furniture
. Teak
. Wicker
. Metal
. Other ▇▇▇▇▇
Outdoor Living
. Garden ornaments
. Entertaining products
. Lighting
. Pottery
. Tableware
. Bird feeders and houses
-17-
III. GIFTS & HOLIDAY
Blooming/Gift Plants
. Potted blooming plants
. Plant collections
. Toplaries
Bulb Kits
. Indoor bulb forcing kits
Decorating & Home
. Wreaths
. Garlands
. Botanicals - bath & beauty
. Jewelry
. Candles
. Vases, Baskets and Containers
. Gift Baskets
. Edible Gifts
-18-
Holiday Specific
. Wreaths
. Garlands
. Christmas Trees
. Holiday Entertaining Products
. Other Holiday Decorating
IV. APPAREL
-19-
CONSENT TO BINARY COMPASS ENTERPRISES, INC.
GARDEN ESCAPE, INC. ("Merchant") hereby authorizes Binary Compass
Enterprises, Inc. (BCE) to provide to America Online, Inc. (AOL) any and all
reports provided to Merchant by BCE as part of Merchant's participation in AOL's
Merchant Certification Program.
Garden Escape, Inc.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Print Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------
Title: President and CEO
Date: 10/2/98
Tax ID/EIN#: ▇▇-▇▇▇▇▇▇▇
-20-