Exhibit 10.9
CONFIDENTIAL
SHOPPING CHANNEL PROMOTIONAL AGREEMENT
This Agreement, (the "Agreement") dated as of September 28, 1999 (the
"Effective Date"), is made and entered into by and between America Online, Inc.
("AOL"), a Delaware corporation, with its principal offices at ▇▇▇▇▇ ▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇/System, LP ("MERCHANT"), a Delaware Limited
Partnership, with its principal offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
(each a "Party" and collectively the "Parties").
INTRODUCTION
AOL owns, operates and distributes the AOL Service, ▇▇▇.▇▇▇, the CompuServe
Service and the Netscape Netcenter. MERCHANT wishes to secure a promotional
placement within the shopping channel of the AOL Service, ▇▇▇.▇▇▇, the
CompuServe Service and the Netscape Netcenter (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 Service or
CompuServe Service (as the case may be) (the "Merchant Site") where MERCHANT
offers content, products and/or services for sale. Terms not defined herein
shall be defined on the attached Exhibit B.
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 C.
2. PROMOTIONAL OBLIGATIONS.
2.1 AOL Promotion of MERCHANT. Commencing on a date set forth on Exhibit A
hereto, AOL will provide the promotion(s) set forth in Exhibit A (the
"Promotion"). Except to the extent expressly described in Exhibit A,
the specific form, placement, positioning, duration and nature of the
Promotion(s) will be 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. 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 listed on Exhibit A. 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.
2.2 MERCHANT Cross-Promotion.
A. Within each Merchant Site, MERCHANT shall include a prominent
promotional banner ("AOL Promo") appearing "above the fold" on
the first screen of the Merchant Site, to promote such AOL
products or services as AOL may reasonably designate (for
example, the America Online(R)brand service, the
CompuServe(R)brand service, the ▇▇▇.▇▇▇(R)site, the Netscape
Netcenter(TM)site, ICQ, the Digital City(R)services or the AOL
Instant Messenger(TM) service) which such promotional banner
shall not be larger than 143 x 245 pixels; AOL will provide the
creative content to be used in the AOL Promo (including
designation of links from such content to other content pages).
MERCHANT shall post (or update, as the case may be) the creative
content supplied by AOL (within the spaces for the AOL Promo)
within a commercially reasonable period of time from its receipt
of such content from AOL. Without limiting any other reporting
obligations of the Parties contained herein, MERCHANT shall
provide AOL with monthly written reports specifying the number of
Impressions to the pages containing the AOL Promo during the
prior month.
B. In MERCHANT'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 MERCHANT
exercises at least partial editorial control, MERCHANT will
include specific references or mentions (orally where possible)
of the availability of the Merchant's Site through the America
Online(R)brand service, which are at least as prominent as any
references that MERCHANT makes to any other MERCHANT online or
Internet site (by way of site name, related company name, URL or
otherwise). Without limiting the generality of the foregoing,
MERCHANT's listing of the "URL" for any Merchant online site will
be accompanied by an equally prominent listing of the "keyword"
term on the AOL Service for Merchant's Site.
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3. PAYMENTS; REPORTS.
3.1 Placement Fees. MERCHANT will pay AOL $[ ] for displaying the
Promotion within the Shopping Channel on the AOL Service, AOL. com,
the CompuServe Service and the Netscape Netcenter. The total amount of
$[ ] will be payable in two (2) installments, with (i) the first
such payment of [ dollars] $[ ]) to be made upon
the Effective Date, and (ii) the second such payment of [ ]
dollars ($[ ]) to be made ninety (90) days from Merchant's launch
in the AOL Shopping Commerce Center specified on Exhibit A attached
hereto. MERCHANT will be provided a credit against any amounts already
paid to AOL by MERCHANT for promotional carriage under MERCHANT's
existing agreement with AOL which overlap promotional carriage
provided for hereunder, if any, as established by the launch date of
the applicable AOL Shopping Commerce Center(s) specified on Exhibit A
attached hereto. Except as otherwise set forth in this Agreement,
MERCHANT agrees that, 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 Reports. AOL will provide MERCHANT with monthly usage information
related to the Promotion in substance and form reasonably determined
by AOL. MERCHANT may not distribute or disclose usage information to
any third party without AOL's prior written consent. MERCHANT will
provide AOL with monthly reports, in a form reasonably satisfactory to
AOL and MERCHANT, which detail the number of daily items, orders and
gross sales through the Merchant Site on the AOL Service, ▇▇▇.▇▇▇, the
CompuServe Service and the Netscape Netcenter (as applicable).
4. TERM. Unless otherwise rightfully terminated pursuant to the terms and
conditions in the Exhibits attached hereto, this Agreement will terminate
ten (10) months from the latest launch date of the AOL Shopping Channel
Commerce Center(s) specified on Exhibit A attached hereto (the "Term").
5. EXISTING AGREEMENTS. To the extent that MERCHANT has any existing shopping
channel agreement(s) with AOL in effect as of the Effective Date such
agreements shall terminate on the date that the last promotion described in
the existing agreement is replaced with Promotion(s) described in this
Agreement.
6. PRESS RELEASES. Each Party will submit to the other Party, for its prior
written approval, which will not be unreasonably withheld or delayed, any
press release ("Press Release") regarding the transactions contemplated
hereunder. 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 unless such law requires immediate
disclosure of such disclosure or legal counsel reasonably advises that the
law requires immediate disclosure in which event, the disclosing Party will
provide prior written notice at the earliest possible date. The failure to
obtain the prior written approval of the other Party, other than otherwise
permitted by this paragraph 6, will be deemed a material breach of this
Agreement. Because it would be difficult to precisely ascertain the extent
of the injury caused to the non-breaching Party, in the event of such
material breach, the non-breaching party may elect to either (i) terminate
this Agreement immediately upon notice to the other Party, and the cure
provision of Section 12 of Exhibit D of this Agreement shall not apply, or
(ii) as liquidated damages, elect to modify the Impression commitment
hereunder by fifteen percent (15%) (either an increase in Impressions if
AOL has materially breached the Agreement or a decrease in Impressions if
MERCHANT has materially breached the Agreement).
7. GENERAL TERMS. The general legal terms and conditions set forth on Exhibit
D attached hereto are hereby made a part of this Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
Effective Date.
AMERICA ONLINE, INC. NUTRI/▇▇▇▇▇▇.▇▇▇ inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Print Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: VP, Business Affairs Title: President
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Date: 10/8/99 Date: 10/4/99
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Tax ID/EIN#:
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EXHIBIT A
Description of Products:
The only categories of Products to be sold through the Merchant Site to AOL
Users (as further described in Section 1 of Exhibit C) are as listed below:
Category Product List:
Nutri/System Breakfast entrees
Nutri/System Lunch Entrees
Nutri/System Dinner Entrees
Nutri/System Desserts and Snacks
Nutri/System Salad Dressings
Nutri-System Non-alcoholic Beverages
Vitamins and Nutritional Supplements
Exercise Equipment
Exercise Video tapes and other exercise-related products
Product Restrictions. In no event will MERCHANT promote, or be entitled to
promote, any vitamin, nutritional supplement or exercise equipment products
through AOL-Controlled Content Screens appearing within the AOL Network (absent
AOL's prior written approval with respect to any specific promotion).
Impressions:
The screens on which the promotions appear will receive a minimum of 3,349,656
Impressions in the aggregate (the "Impressions Commitment"), subject to the
remainder of this paragraph and (i) will appear on each of the AOL Service,
▇▇▇.▇▇▇, the CompuServe Service, the Netscape Netcenter and (ii) will appear on
any other product or service owned, operated, distributed or authorized to be
distributed by or through AOL or its affiliates worldwide through which such
service elects to offer (which may include, without limitation, Internet sites
promoting AOL products and services and any "offline" information browsing
products of AOL or its affiliates), and (iii) will link to the Merchant Site. 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 either: (i) extend the Promotion provided for
in the Agreement; or (ii) a refund of a pro-rata portion of the fee allocable to
the display of the Promotion based on the number of Impressions not delivered.
Description of Specific Promotion(s):
Please check the box next to the Promotion(s) that MERCHANT is purchasing.
o ANCHOR PROMOTION
To commerce on November 15, 1999 and to terminate ten (10) months from the
launch date of the AOL commerce center specified below on the AOL Service (the
"AOL Commerce Center Launch Date"), MERCHANT will become an "Anchor" in the Diet
& Nutrition department(s) of the Health and Beauty commerce center of the
Shopping Channel on the AOL Service. Commencing on November 15, 1999, MERCHANT
will become an Anchor Shopping Channel on each of ▇▇▇.▇▇▇, the CompuServe
Service and the Netscape Netcenter and such promotion shall terminate ten (10)
months from the AOL Commerce Center Launch Date. As an Anchor in a department,
MERCHANT will be entitled to the following:
For purposes of this Agreement, the Commerce Center Launch Date for the Health
and Beauty commerce center of the Shopping Channel on the AOL Service is August
12, 1999.
Principal Exposure on the AOL Service, ▇▇▇.▇▇▇, the CompuServe Service and the
Netscape Netcenter:
o One continuous (24/7) 143 x 245 pixels promotional space with corporate
brand or logo, product offering graphic and product offering two-line text
field on the department front screen.
Additional Promotion on the AOL Service Shopping Channel:
o Rotation with other Anchor Tenants of the Commerce Center on the Commerce
Center front screen of the AOL Service on two promotional spaces with
corporate brand or logo, product offering graphic. These promotional space
rotations are reserved for the Anchor Tenant Merchant's of each Commerce
Center and will be divided proportionately among them.
o Product listing availability through the AOL Product Search, subject to
Merchant's participation and the terms and conditions set forth on Exhibit C
Section 3.
o Banner rotation on the AOL Product Search screen of the AOL Service. These
banner rotations will be divided proportionately among all shopping channel
merchants.
o Up to three (3) AOL Keywords(TM) for use from the AOL Service, for
registered MERCHANT trade name or trademark (subject to the other provisions
contained herein).
o Fifteen percent (15%) discount from the then-current rate card on purchases
of additional advertising banners or buttons on the AOL Service, ▇▇▇.▇▇▇,
the CompuServe Service and the Netscape Netcenter, 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). Sponsorships are not entitled to the aforementioned discount.
o Eligibility to participate in the following AOL Shopping promotional
programs (the "Program Areas") subject to the terms and conditions set forth
on Exhibit C Section 3:
o Quick Gifts
o Standard Seasonal Catalogs or Special Event Merchandising areas
(e.g., Christmas Shop), subject to MERCHANT's participation in
AOL's Quick Checkout and AOL's Search Product as described on
Exhibit C Section 3.
o Premier-level Seasonal Catalogs or Special Event Merchandising
areas (e.g., Golf Outings), subject to MERCHANT's participation in
AOL's Quick Checkout and AOL's Search Product as described on
Exhibit C Section 3.
o Gift Reminder
o Newsletters
All additional Promotions on the AOL Service, ▇▇▇.▇▇▇, the CompuServe Service,
the Netscape Netcenter or the AOL Network not specified herein will be
determined at AOL's reasonable discretion; provided that the additional,
standard Promotions to be provided to the MERCHANT within the Shopping areas on
the AOL Service, ▇▇▇.▇▇▇, the CompuServe Service and the Netscape Netcenter will
be comparable in nature to the additional, standard Promotions provided to other
similarly situated MERCHANTs in the same category (i.e. Anchor Tenant, Gold
Tenant or Silver Tenant).
EXHIBIT B
Definitions
Additional Merchant Channel. Any other online distribution channel (e.g., an
interactive Service other than AOL) through which MERCHANT makes available an
offering comparable in nature to the Merchant Site.
AOL-Controlled Content Screen. Any screen (i) run on or through the AOL Network,
including any promotion run on the AOL Service, ▇▇▇.▇▇▇, CompuServe or Netscape
Netcenter, and (ii) controlled by AOL.
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 and (ii) 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, AOL-related Internet sites, "offline"
information browsing products, international versions of the AOL brand service,
and CompuServe).
AOL Service. The standard narrow-band U.S. America Online(R) brand commercial
online service.
AOL User. Any user of the AOL Service, ▇▇▇.▇▇▇, the CompuServe Service, the
Netscape Netcenter, or the AOL Network.
▇▇▇.▇▇▇. The standard narrow-band U.S. version of its primary website marketed
under the ▇▇▇.▇▇▇(R) brand.
CompuServe Service. The standard narrow-band affiliate U.S. CompuServe(R) brand
commercial online service.
Content. Text, images, video, audio (including, without limitation, music used
in synchronism or timed relation with visual displays) and other data, Products,
advertisements, promotions, links, pointers and software, including any
modifications, upgrades, updates, enhancements and related documentation.
Digital City. The standard, narrow-band U.S. version of Digital City's local
content offerings marketed under the Digital City(R) brand name.
ICQ. (i) The ICQ Service, (ii) ▇▇▇.▇▇▇ and (iii) any other product or service
owned, operated, distributed or authorized to be distributed by or through ICQ
or its affiliates worldwide (and including without limitation the ICQ Service,
▇▇▇.▇▇▇, and the rest of the ICQ Network).
Impression. User exposure to the commerce center screens, department level
screens and any other promotional inventory screens (i.e. AOL Welcome 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.
Interactive Service. Means and refers to 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); (iii) a
persistent desktop client; or (iv) communications software capable of serving as
the principal means through which a user creates, sends or receives electronic
mail or real time or "instant" online messages (whether by telephone, computer
or other means), including without limitation greeting cards.
Keyword Search Terms. The Keyword(TM) online search terms made available on the
AOL Service for use by AOL Members, combining AOL's Keyword(TM) online search
modifier with a term or phrase specifically related to MERCHANT (and determined
in accordance with the terms of this Agreement).
Merchant Interactive Site. Any site (other than the Merchant Site) which is
managed, maintained, owned or controlled by Merchant or its agents.
Netscape Netcenter. The standard narrow-band primary website of Netscape
Communications Corporation marketed under the "Netcenter(TM)" brand.
Promotional Materials. Any marketing, advertising or other promotional
materials, excluding Press Releases, related to this Agreement and/or
referencing the other Party and/or its trade names, trademarks and service
marks.
EXHIBIT C
Standard Shopping Channel Terms & Conditions
1. Merchant Site. MERCHANT will work diligently to develop and implement the
Merchant Site, consisting of the specific Product(s) set forth in Exhibit A and
any additional 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 categories of Products, Services and Content
that are directly related to the MERCHANT Products listed in Exhibit A. All
sales of Products through the Merchant Site will be conducted through a direct
sales format (e.g. no auctions or clubs), 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. MERCHANT may comply with the requirements of this
Section , and any other customization requirements, applicable to Merchant Site
(at MERCHANT's sole expense), by any of the following methods: (i) ensuring that
all versions of MERCHANT Site so comply (ii) providing a mirrored version of
Merchants Site to be the only version available for AOL Users to use as the
Merchant Site, which mirrored version so complies; or (iii) providing a
customized version of Merchant Site to appear to AOL Users when accessing such
website (such as by dynamically serving such users) to use as the Merchant Site,
which customized version so complies.
2. Management of Merchant Site. MERCHANT will manage, review, delete, edit,
create, update and otherwise manage all Content 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 AOL's Privacy
Policy (as set forth on the AOL Service) or Merchant's Privacy Policy provided
such MERCHANT policy is posted online. 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 AOL's privacy policy or Merchant's posted
and applicable 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 categories of Products; provided, however, that AOL
reserves the right to review and approve any additional categories of Products
and any third-party content, products or services that MERCHANT makes or desires
to make available to AOL Users 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 all commercially reasonable
steps necessary to conform its promotion and sale of Products through the
Merchant Site to the then-existing commerce technologies made available to
MERCHANT by AOL. MERCHANT will be given an opportunity to implement, at
MERCHANT's option, 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") and AOL's
"product search" tool technology which allows AOL Users to run a customized
search among Merchant's detailed inventory data ("AOL Product Search"); provided
however that in the event that MERCHANT declines participation in these programs
then AOL reserves the right to reduce or prohibit MERCHANT's participation in
any other incremental merchandising programs offered through the Shopping
Channel. At Merchant's request, AOL will make all reasonable efforts to provide
the tools for the MERCHANT (i) to enable Merchant Site with the AOL Quick
Checkout technology and functionality and (ii) to allow integration of
Merchant's detailed inventory data into AOL's Search Product database.
Collection, storage and disclosure of AOL Quick Checkout information which
MERCHANT provides to AOL, will be subject to AOL's privacy policy and all
confidentiality requirements hereunder. To the extent that the Merchant Site
offers AOL's Quick Checkout, MERCHANT will ensure that the AOL Quick Checkout is
of equal placement and promotion prominence to other available payment options.
AOL reserves the right to review and test the Merchant Site from time to time at
its own expense to determine whether the site is compatible with AOL's,
CompuServe's and Netscape'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 the Merchant Site if such
content, features or functionality will, in AOL's good faith judgment, adversely
affect operations of the AOL Network and provided such changes can be made by
MERCHANT without a material cost to MERCHANT. MERCHANT agrees to optimize
operations of the Merchant Site consistent with Exhibit E attached hereto.
4. Removal of Content. AOL will have the right to remove, or direct MERCHANT to
remove, any Content in the Merchant Site (including, without limitation, any
features, functionality or technology) which, as reasonably determined by AOL
(i) violates AOL's then-standard Terms of Service or MERCHANT's posted and
applicable Privacy Policy (as set forth on the Merchant Site), any other
standard, written AOL policy generally applicable to other shopping channel
merchants or the terms of this Agreement, (ii) is inconsistent in any manner
with the terms of the Agreement or with the Product description set forth in
Exhibit A or (iii) is otherwise in conflict with AOL's 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 harm AOL, CompuServe or Netscape or other operations,
MERCHANT will work in good faith with AOL to limit access to such components
from the AOL Service, ▇▇▇.▇▇▇, the CompuServe Service and the Netscape
Netcenter. 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, the 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) suspend 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.
5. Promotional Placement. MERCHANT acknowledges that the sole obligation of AOL
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 with 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 was displayed. Except for the pro-rata refund set forth in the
foregoing sentence, AOL will not be liable in any way for any rejection,
cancellation or removal of the Promotion, except as otherwise set forth in this
Agreement. AOL reserves the right to redesign or modify the organization,
navigation, structure, "look and feel" and other elements of the AOL Service,
▇▇▇.▇▇▇, the CompuServe Service, the Netscape Netcenter and the AOL Network, at
its sole discretion at any time without prior notice. MERCHANT acknowledges and
agrees that AOL will own all right, title and interest in and to the elements of
graphics, design, organization, presentation, layout, user interface, navigation
and stylistic convention (including the digital implementations thereof) which
are generally associated with online areas contained within the AOL Network. 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 thirty (30) 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 thirty (30) 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 MERCHANT's failure to deliver to AOL any materials relating to the
Promotion.
6. Product Offering. 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
unless prohibited by this Agreement.
7. Pricing and Terms. 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.
8. Exclusive Offers. MERCHANT will generally promote through the Merchant Site
any special or promotional offers made available by or on behalf of MERCHANT
through any Additional MERCHANT Channel.
In addition, MERCHANT shall promote through the Merchant Site on a regular
and consistent basis special offers exclusively available to AOL Users (the "AOL
Exclusive Offers"). MERCHANT shall, at all times, feature at least one AOL
Exclusive Offer for AOL Users (except as otherwise mutually agreed upon by the
Parties). The AOL Exclusive Offer made available by MERCHANT shall provide a
substantial member benefit to AOL Users, either by virtue of a meaningful price
discount, product enhancement, unique service benefit or other special feature.
MERCHANT will provide AOL with reasonable prior notice of Exclusive Offers so
that AOL can in its editorial discretion, market the availability of such
offers. At MERCHANT's option, MERCHANT will work with AOL or its authorized
agents to develop a customized AOL rewards program, which shall be a promotional
program or plan that is intended to provide AOL Users with rewards or benefits
in exchange for, or on account of, their past or continued loyalty to, or
patronage or purchase of, the products or services of Merchant or any third
party (e.g. a promotional program similar to a "frequent flier" program), to be
provided through AOL's "AOL Rewards" program, accessible on the AOL Service at
Keyword: "AOL Rewards." Merchant's participation in such promotional rewards
program is subject to AOL's approval and may also require the payment of certain
reasonable administration fees to AOL or its authorized agents or contractors
operating the program.
9. Customer Service. It is the sole responsibility of MERCHANT to provide
customer service to persons or entities purchasing Products through the AOL
Service, ▇▇▇.▇▇▇, the CompuServe Service, the Netscape Netcenter or the AOL
Network ("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 Site shall include clear
and conspicuous disclosure of its customer service policies and a phone number
and an email or street address at which customers may contact MERCHANT. MERCHANT
shall provide a name of a customer service contact for use by AOL and a
telephone number and email or street address to which AOL may forward or refer
customer inquiries or complaints relating to MERCHANT. MERCHANT will receive all
emails 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 a Merchant Site a
money-back satisfaction guarantee. MERCHANT 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. 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.
10. Launch Dates. In the event that any terms contained herein relate to or
depend on the commercial launch date of the online area or other property
contemplated by this Agreement (the "Launch Date"), then it is the intention of
the Parties to record such Launch Date in a written instrument signed by both
Parties promptly following such Launch Date; provided that, in the absence of
such a written instrument, the Launch Date will be as reasonably determined by
AOL based on the information available to AOL. For each day beyond the Launch
Date that the actual commercial launch of the Merchant Site is delayed (e.g.,
due to MERCHANT or the Merchant Site not being ready), then AOL will be entitled
to reduce the Impressions Commitment pro rata and decrease the promotions it
provides to MERCHANT hereunder.
11. Merchant Certification Program. MERCHANT will participate in any generally
applicable "Certified Merchant" program operated by AOL or its authorized agents
or contractors. Such program may require merchant participants on an ongoing
basis to meet certain reasonable standards relating to provision of electronic
commerce through the AOL Service, ▇▇▇.▇▇▇, the CompuServe Service and the
Netscape Netcenter and may also require the payment of certain reasonable
certification fees to AOL or its authorized agents or contractors operating the
program. At MERCHANT's option, MERCHANT may (i) participate in the BizRate(R)
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. To the extent
MERCHANT participates in the BizRate(R) Program, 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 may
authorize 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.
12. Traffic Flow/Navigation. The Parties will work together on implementing
mutually acceptable links from the Merchant Site back to the AOL Network. In the
event that AOL points to the Merchant Site or any other Merchant Interactive
Site or otherwise delivers traffic to such site, MERCHANT will ensure that
navigation back to the AOL Network
from such site, whether through a particular pointer or link, the "back" button
on an Internet browser, the closing of an active window, or any other return
mechanism, shall not be interrupted by MERCHANT through the use of any
intermediate screen or other device not specifically requested by the user,
including without limitation through the use of any html pop-up window or any
other similar device. Rather, such AOL Traffic shall be pointed directly back to
the AOL Network as mutually agreed upon by AOL and MERCHANT. AOL will be
entitled to establish navigational icons, links, pointers connecting other
content areas on or outside of the AOL Network (so long as such areas are not
controlled by competitors of Merchant's) to the Merchant Site (or portions
thereof). Additionally, in cases where an AOL User performs a search for
Merchant through any search or navigational tool or mechanism that is accessible
or available through the AOL Network (e.g., Promotions, Keyword Search Terms, or
any other similar promotions or navigational tools), AOL shall have the right to
direct such AOL User to the Merchant Site.
EXHIBIT D
Standard Legal Terms & Conditions
1. Production and Technical Services. Unless expressly provided for elsewhere in
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) subject to the following sentence, 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. With respect to any routine
production, maintenance or related services which AOL reasonably determines are
necessary for AOL to perform in order to support the proper functioning and
integration of the Merchant Site ("Routine Services"), MERCHANT will pay the
then-standard fees charged by AOL for such Routine Services.
2. AOL Accounts. To the extent MERCHANT has been granted any AOL, CompuServe or
Netscape accounts pursuant to the Agreement or otherwise used to conduct
business related to this Agreement, 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
from, any sales, use, excise, import or export value added or similar tax or
duty not based on AOL's net income, including any penalties and interest, as
well as any costs associated with the collection or withholding thereof,
including attorneys' fees.
4. Promotional Materials. Each Party will submit to the other Party, for its
prior written approval, which shall not be unreasonably withheld or delayed, any
Promotional Materials; provided, however, that after the initial public
announcement of the business relationship between the Parties in accordance with
the approval and other requirements contained therein, either Party's subsequent
factual reference to the existence of a business relationship between AOL and
MERCHANT in Promotional Materials, including, without limitation, the
availability of the Merchant Site through the AOL Network, or use of screen
shots relating to the distribution under this Agreement (so long as the AOL
Network is clearly identified as the source of such screen shots) for
promotional purposes shall not require the approval of the other Party. Once
approved, the Promotional Materials may be used by a Party and its affiliates
for the purpose of promoting the distribution of the Merchant Site through the
AOL Network and reused for such purpose until such approval is withdrawn with
reasonable prior notice. Neither Party will issue any press releases, promotions
or public statements concerning the existence or terms of the Agreement.
MERCHANT will not use, display or modify AOL's trademarks, tradenames or
servicemarks in any manner, absent AOL's express prior written approval. AOL
will not use, display or modify MERCHANT's trademarks, trade names or service
marks in any manner, absent MERCHANT's prior approval; which such approval is
agreed by the Parties to be given to AOL by MERCHANT when MERCHANT transfers or
delivers any promotional content or artwork to AOL, or any of AOL's agents.
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, prompt notice thereof will be
provided to 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.
6. License. For the term of this Agreement, MERCHANT hereby grants AOL a
non-exclusive, worldwide, revocable license (i) to use solely for the purpose of
fulfilling AOL's obligations under this Agreement and subject to any written
guidelines provided by Merchant to AOL (ii) to reproduce solely for the purpose
of fulfilling AOL's obligations under this Agreement including for the purposes
of cacheing, and (iii) to display, transmit and promote the Merchant's trade
names, trademarks, service marks and the Merchant Site or online materials (i.e.
creatives) otherwise provided by MERCHANT in connection herewith (e.g., offline
or online promotional content, Promotions, etc.) through the AOL Network solely
for the purpose of fulfilling AOL's obligations under this Agreement. AOL Users
will have the right to access and use the Merchant Site as customized per
Section 1 on Exhibit C. 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, subject to the terms and conditions
of this Agreement and to any written guidelines provided in writing to AOL;
provided, however, AOL shall not use, reproduce, display or take any action
outside the scope of this Agreement with respect to MERCHANT's trademarks, trade
names or service marks, absent prior written consent from Merchant to AOL.
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 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, (d) lawfully obtained from any third party, or (e) required or
reasonably advised to be disclosed by law. MERCHANT shall not make, publish, or
otherwise communicate through the AOL Network any deleterious remarks concerning
AOL or its Affiliates, directors, officers, employees, or agents (including,
without limitation, AOL's business projects, business capabilities, performance
of duties and services, or financial
position) which remarks are based on the relationship established by this
Agreement or information exchanged hereunder. This section is not intended to
limit good faith editorial statements made by MERCHANT based upon publicly
available information, or information developed by MERCHANT independent of its
relationship with AOL and its employees and agents.
8. Limitation of Liability; Disclaimer; Indemnification.
(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, THE
NETSCAPE NETCENTER 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 IN PARAGRAPH (C) BELOW, (I) LIABILITY
ARISING UNDER THIS AGREEMENT WILL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE
DAMAGES, AND (II), THE MAXIMUM LIABILITY OF ONE PARTY TO THE OTHER PARTY FOR ANY
CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE
AMOUNT OF PAYMENT OBLIGATIONS OWED TO AOL BY MERCHANT IN THE YEAR IN WHICH THE
EVENT GIVING RISE TO LIABILITY OCCURS; PROVIDED THAT MERCHANT WILL REMAIN LIABLE
TO AOL FOR THE AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED PURSUANT OT THE
AGREEMENT.
(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, THE NETSCAPE NETCENTER 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 NETWORK, ▇▇▇.▇▇▇, THE NETSCAPE NETCENTER, OR THE
COMPUSERVE SERVICE OR (IV) THE FUNCTIONALITY, PERFORMANCE OR OPERATION OF THE
AOL, COMPUSERVE OR NETSCAPE SERVICES WITH RESPECT TO THE PROMOTION.
(c) Indemnity. Each Party will defend, indemnify, save and hold harmless the
other Party and the officers, directors, agents, affiliates, distributors,
franchisees and employees of the other Party from any and all third party
claims, demands, liabilities, costs or expenses, including reasonable attorneys'
fees ("Liabilities"), resulting from the indemnifying Party's material breach 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 party (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 which satisfaction shall not be unreasonably withheld. The Indemnified
Party 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 right to participate fully, at its own expense, in the defense of such
Action. If the Indemnifying Party responds within the required ten (10) day
period and elects not to defend such Action, the Indemnified Party 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, voluntarily 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) During the term of the Agreement and for a two year period thereafter,
MERCHANT will not use the AOL Network (including, without limitation, the e-mail
network contained therein) to solicit AOL Members or AOL Users on behalf of
another Interactive Service. 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 consent, 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-mail 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) and the limitations set forth
in Exhibit C.
(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 (ii) AOL's standard privacy policies,
available on the AOL Service at the keyword term "Privacy", and (iii) AOL's
applicable Terms of Service.
(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 Interactive Service
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.
10. AOL User Communications. To the extent MERCHANT is otherwise permitted to
send communications to AOL Users (in accordance with the other requirements
contained herein): (i) any solicitations in such communications to purchase
products or services shall promote the Merchant Site available through the AOL
Network as the principal means through which to purchase any such products or
services; (ii) any direct links to specific offers within such communications
shall link to the Merchant Site; (iii) MERCHANT shall
limit the subject matter of such communications to those categories of products,
services and/or content which are specifically contemplated by this Agreement;
and (iv) MERCHANT will provide the recipient with a prominent and easy means to
"opt-out" of receiving any future commercial e-mail communications from
Merchant. 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, including with limitation the following
actions: (a) using interactive sites other than the Merchant Site; (b)
bookmarking of other interactive sites; (c) changing the default home page on
the AOL browser; or (d) using any interactive service other than the AOL,
Netscape and CompuServe Services.
11. Keyword(TM) Search Terms. Any Keyword 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 Keywords 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 and interest MERCHANT holds in
MERCHANT's 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.
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. Neither Party's rights, duties, and obligations under the Agreement
are 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, 10, 11, 12 and 13
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. 703-265- 1105), 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. Except as otherwise specified herein, 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 forth in a written instrument signed by the Party subject to enforcement of
such amendment. Each Party will promptly inform the other Party 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.
Except as provided below, MERCHANT will not assign this Agreement or any right,
interest or benefit under this Agreement without the prior written consent of
AOL. Assumption of the Agreement by any successor to MERCHANT (including,
without limitation, by way of merger, consolidation or sale of all or
substantially all of MERCHANT's stock or assets) will be subject to AOL's prior
written approval unless such successor (i) is not an Interactive Service, (ii)
continues the business of MERCHANT in the ordinary course, and (iii) is of equal
or superior creditworthiness to MERCHANT. 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 law 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.
EXHIBIT E
Operations
1. MERCHANT Site Infrastructure. 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 Network. MERCHANT will design and
implement the network between the AOL Service and MERCHANT site such that
(i) no single component failure will have a materially adverse impact on
AOL Members seeking to reach the MERCHANT Site from the AOL Network and
(ii) no single line under material control by the Merchant will run at more
than 70% average utilization for a 5-minute peak in a daily period. In this
regard, MERCHANT will provide AOL, upon request, with a detailed network
diagram regarding the architecture and network infrastructure supporting
the MERCHANT Site. In the event that MERCHANT elects to create a custom
version of the MERCHANT Site in order to comply with the terms of this
Agreement, MERCHANT will bear responsibility for all aspects of the
implementation, management and cost of such customized site.
2. Optimization; Speed. MERCHANT will use commercially reasonable efforts to
ensure that : (a) the functionally and features within the MERCHANT Site
are optimized for the client software then in ▇▇▇ by AOL Members; and (b)
the MERCHANT Site is designed and populated in a manner that minimizes
delays when AOL Members attempt to access such site. At a minimum, MERCHANT
will ensure that the MERCHANT Site's data transfers initiate within fewer
than fifteen (15) seconds on average. Prior to commercial launch of any
material promotions described herein, MERCHANT will permit AOL to conduct
performance and load testing of the MERCHANT 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. MERCHANT will maintain a graphical user interface within
the MERCHANT 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
MERCHANT's compliance with the preceding sentence.
4. Technical Problems. MERCHANT agrees to use commercially reasonable efforts
to address material technical problems (over which MERCHANT exercises
control) affecting use by AOL Members of the MERCHANT Site (a "MERCHANT
Technical Problem") promptly following notice thereof. In the event that
MERCHANT is unable to promptly resolve a MERCHANT 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 MERCHANT hereunder until such
time as MERCHANT corrects the MERCHANT Technical Problem at issue.
5. Monitoring. MERCHANT will ensure that the performance and availability of
the MERCHANT Site is monitored on a continuous basis. MERCHANT will provide
AOL with contact information (including e-mail, phone, pager and fax
information, as applicable, for both during and after business hours) for
MERCHANT's principal business and technical representatives, for use in
cases when issues or problems arise with respect to the MERCHANT Site.
6. 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) to and from the MERCHANT Site. MERCHANT will
facilitate periodic reviews of the MERCHANT Site by AOL in order to
evaluate the security risks of such site. MERCHANT will promptly remedy any
security risks or breaches of security as may be identified by AOL's
Operations Security team.
7. Technical Performance.
i. MERCHANT will designate the MERCHANT Site to support the AOL-client
embedded version of the Microsoft Internet Explorer 3.XX and 4.XX
browsers (Windows and Macintosh), the Netscape Browser 4.XX, and make
commercially reasonable efforts to support all other AOL browsers
listed at: "▇▇▇▇://▇▇▇▇▇▇▇▇▇.▇▇▇▇.▇▇▇.▇▇▇/"
ii. To the extent MERCHANT creates customized pages on the MERCHANT Site
for AOL Members, MERCHANT will develop and employ a methodology to
detect AOL Members (e.g. 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 and to adhere to AOL's parameters for refreshing
or preventing the caching of information in AOL's proxy system
outlined in the document provided at the following URL:
▇▇▇▇://▇▇▇▇▇▇▇▇▇.▇▇▇▇.▇▇▇.▇▇▇. The Merchant is responsible for the
manipulation of these parameters in web based objects so as to allow
them to be cached or not cached as outlined in RFC 1945.
v. Prior to releasing material, new functionality or features through the
MERCHANT Site ("New Functionality"), MERCHANT will use commercially
reasonable efforts to: (i) test the New Functionality to confirm its
compatibility with AOL Service client software and (ii) provide AOL
with 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. Should any new material, new
functionality or features through the Merchant Site be released
without notification to AOL, AOL will not be responsible for any
adverse member
experience until such time that compatibility tests can be performed
and the new material, functionality or features qualified for the AOL
Service.
8. AOL Internet Services MERCHANT 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 in this Exhibit E. 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 the coordination of 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