EXHIBIT 10.31
[CONFIDENTIAL TREATMENT REQUESTED]
Final Execution Copy
Confidential
SECOND AMENDED AND RESTATED
INTERACTIVE MARKETING AGREEMENT
This Second Amended and Restated Interactive Marketing Agreement (the
"Agreement"), effective as of April 8, 1998 (the "Effective Date"), is entered
into as of June , 1999 (the "Execution Date") by and between America Online,
Inc. ("AOL"), a Delaware corporation, with offices at ▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the one hand, RealSelect, Inc. ("RealSelect") and NetSelect,
Inc. ("NetSelect"), each a Delaware corporation, with headquarters at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on the other hand.
RealSelect and NetSelect are collectively referred to herein as "RS". AOL and RS
may be referred to individually as a "Party" and collectively as "Parties."
INTRODUCTION
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AOL, RealSelect and NetSelect entered into an interactive marketing
relationship through that certain Interactive Marketing Agreement dated as of
April 8, 1998 (the "Original Agreement"), whereby AOL would, among other things,
promote and distribute a customized Interactive Site containing RS property
listings for existing homes and NetSelect issued certain warrants to AOL. The
Original Agreement was superseded in its entirety as of March 15, 1999 by an
Amended and Restated Interactive Marketing Agreement (the "First Amended and
Restated Agreement"). AOL, RealSelect and NetSelect desire to amend the First
Amended and Restated Agreement in accordance with the revised terms and
conditions set forth in this Agreement. This Agreement amends and restates the
First Amended and Restated Agreement in its entirety and, upon the full
execution hereof and the simultaneous execution of another agreement by and
between AOL and RS (the "Other Agreement"), the First Amended and Restated
Agreement will be superseded and replaced by this Agreement and of no further
force or effect. Defined terms used but not defined in the body of the Agreement
will be as defined on Exhibit A attached hereto.
TERMS
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1. ADVERTISING AND TRANSACTIONAL INVENTORY.
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1.1. AOL Rights to Sell Advertising and Transactional Inventory.
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1.1.1. Exclusive Rights of AOL. Beginning on March 15, 1999 until
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the expiration of the Exclusive Sales Period (as defined in
Section 1.4 below):
(a) AOL will have the exclusive right, subject to both
Parties' then generally applicable advertising policies,
to sell, as agent for RS, Advertisements and
Transactional Inventory (other than the Home Finance
Products) through the RS Home Builder Site, the RS
▇▇▇▇▇▇▇.▇▇▇ Site and the Co-Branded Sites;
(b) AOL will have the exclusive right, subject to both
Parties' then generally applicable advertising policies,
to sell, as agent for RS, Advertisements and
Transactional Inventory (other than the Home Finance
Products) through any real estate-related RS Interactive
Site now or hereafter developed provided that AOL offers,
and RS agrees, to have such site be the exclusive
provider of the real-estate related services offered by
such site directly promoted by AOL within the AOL
Properties; and
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(c) AOL will be the only individual or entity (other than RS
and the co-branding partner for such site) entitled to
sell Advertisements and Transactional Inventory (other
than the Home Finance Products) on any co-branded
versions with third parties now or hereafter developed of
the sites with respect to which AOL has exclusive rights
pursuant to paragraph (a) or (b) above, and RS will use
all reasonable efforts to provide AOL the exclusive right
to sell Advertisements and Transactional Inventory (other
than the Home Finance Products) on all such co-branded RS
Interactive Sites.
RS shall not have the right to sell, or to appoint another
agent on their behalf to sell, Advertising in any of the AOL
Exclusive Sites. The generally applicable advertising policies
of RS shall not be changed so as to prohibit AOL from selling
any type of Advertising and Transactional Inventory (other
than Home Finance Products) or otherwise diminish the rights
of AOL hereunder.
1.1.2. Nonexclusive Rights of AOL. AOL will have the non-exclusive
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right to sell the Home Finance Products on the AOL Exclusive
Sites.
1.1.3. Limitations. AOL may sell Ad Products to any individual or
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entity other than an entity listed on Exhibit B, which list
shall be modified by RS from time to time during the Term to
add, subject to AOL's approval, an individual or entity or to
remove from the list any individual or entity that ceases to
pose a significant problem for RS in obtaining RS Listings
Content from others as soon as such individual or entity no
longer poses such a problem, provided, however, that, in
addition to any other limitations on the sale of such Ad
Products set forth elsewhere in this Agreement:
(a) AOL shall notify RS in writing of any contract for Ad
Products on the RS Properties pursuant to which AOL will
receive more than * * in Gross AOL Sales
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Revenue attributable to the Ad Products, and such
contract shall be subject to RS' prior written approval,
which approval shall not be unreasonably withheld. RS
shall have five (5) days from the receipt of written
notice of the contract to grant or deny such approval in
writing. Any such contract which RS has not denied in
writing within such five (5) day period shall be deemed
approved;
(b) AOL shall notify RS in writing of any contract for
Closing Services Advertisements pursuant to which AOL
will receive more than * * per month in Gross
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AOL Sales Revenue attributable to the Closing Services
Advertisements and such contract shall be subject to RS'
prior written approval, which approval shall not be
unreasonably withheld. RS shall have five (5) days from
the receipt of written notice of the contract to grant or
deny such approval in writing. Any such contract which RS
has not denied in writing within such five (5) day period
shall be deemed approved;
(c) AOL shall notify RS in writing of any contract for
Mortgage Services Advertisements pursuant to which AOL
will receive more than * * in Gross AOL Sales
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Revenue attributable to the Mortgage Services
Advertisements, or more than * * attributable
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to the Mortgage Services Advertisements in any local
geographic area on an AOL Exclusive Site, and such
contract shall be subject to RS' prior written approval,
which approval shall not be unreasonably withheld. RS
shall
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* Confidential treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing and
have been separately filed with the Securities and Exchange Commission.
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have five (5) days from the receipt of written notice of
the contract to grant or deny such approval in writing.
Any such contract which RS has not denied in writing
within such five (5) day period shall be deemed approved;
(d) AOL may not sell more than twenty-five percent (25%) of
the available slots for Advertisements located at any
local geographic area on an AOL Exclusive Site to any one
advertiser of Mortgage Services;
(e) AOL shall not enter into any contract for the sale of Ad
Products that expires more than * * after
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the expiration of the Exclusive Sales Period (including
any contract which would extend beyond such period as the
result of a de facto automatic renewal period (e.g.,
renewal at the advertiser's sole discretion)) without RS'
prior written approval. RS shall have ten (10) days from
the receipt of written notice of the contract to grant or
deny such approval in writing. Any such contract which RS
has not denied in writing within such ten (10) day period
shall be deemed approved. In the event that RS approves
such Ad Product contract, then AOL shall be paid its
commission on such Ad Product contract at the same
percentages and on the same terms as AOL receives such Ad
Product revenues during the second year of the Exclusive
Sales Period, provided, however, that RS shall have the
right, in its sole discretion, to cancel such Ad Sales
contract at any time after the third anniversary of the
expiration of the Exclusive Sales Period upon 30 days
prior written notice, and pay to AOL any sums, and at
such times, that AOL would have been entitled to receive
such sums, as if no cancellation, had occurred. AOL
agrees to cause any contract for Ad Products to be
cancelable in accordance with this Section 1.1.3(e);
(f) AOL shall notify RS in writing of any contract for
Advertisements, Transactional Inventory or Home Finance
Products that would require a change in any portion of
the AOL Exclusive Sites other than the Advertisement
slots and, if such contract would require a material
change as reasonably determined by RS, such contract
shall be subject to RS' prior written approval, which
approval shall not be unreasonably withheld. RS shall
have ten days from the receipt of written notice of the
contract to grant or deny any such approval in writing.
Any such contract which RS has not denied in writing
within such ten day period shall be deemed approved; and
(g) Notwithstanding any other provision of this Agreement, RS
shall receive an aggregate total of the first * *
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Net RS Sales Revenues received pursuant to the contracts
in existence as of March 15, 1999 between RS and the
entities set forth on Exhibit C. Any additional Net RS
Sales Revenues received pursuant to contracts with such
entities shall be shared equally between the Parties and
shall count toward the Quarterly Commitments set forth in
Section 1.6.1. AOL shall have the exclusive right to
negotiate any amendments to or renewals of such
contracts.
1.2. Additional Limitations. RS will ensure that:
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(a) The Co-Branded Sites and the AOL Exclusive Sites do not
in any respect promote, advertise, market or distribute
the products, services or Content of * *;
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* Confidential treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing and
have been separately filed with the Securities and Exchange Commission.
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(b) Subject to Sections 1.2 (a-c), the Co-Branded Sites do
not in any respect promote, advertise, market or
distribute the products, services or Content of any third
party Interactive Service;
(c) During the Exclusive Sales Period, the Co-Branded Sites
do not in any respect promote, advertise, market or
distribute the products, services or Content of any
entity reasonably construed to be in competition with any
third party with which AOL has an exclusive (or premier)
relationship, provided that such third party's category
of Content is included on a list mailed to RS by AOL
within 5 business days after March 15, 1999 (the
"Category List"), which Category List may be modified as
further described below, or AOL has notified RS in
writing of such category of Content, and except with
respect to any Home Finance Products offered by such
third party. Beginning on March 15, 1999, AOL shall have
the right to add up to two additional Content categories
to the Category List each year. AOL may substitute new
Content categories for ones included on the Category List
at any time provided that such substitutions do not
affect the total number of items on the list.
1.3. Unsold Advertisement Inventory. AOL shall use commercially reasonable
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efforts to fill any Advertisement slots on the AOL Exclusive Sites
that are not sold by AOL to third parties in accordance with the
following allocation between AOL Advertisements and RS Advertisements
in each year during the Exclusive Sales Period: (a) until such time
as AOL Gross Sales Revenues in such year equal * *
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RS Advertisements, * * AOL Advertisements, and (b)
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once AOL Gross Sales Revenues in such year equal * *
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RS Advertisements and * * AOL Advertisements.
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Regardless of the level of AOL Gross Sales Revenues, all RS
Advertisements in unsold slots will be used to promote the Co-Branded
Sites and no such Advertisements on the Co-Branded Sites shall be used
to promote Home Finance Content. In addition, the Advertisements in
such unsold slots shall be subject to the same limitations as other
Advertising on the Co-Branded Sites, including, without limitation,
the limitations contained in Section 1.1.3 and the limitations set
forth in Section 1.2. AOL may use up to twenty-five percent (25%) of
the Advertisements on the AOL Exclusive Sites to promote DCI. AOL will
work with RS to provide reporting to RS as to how unsold
Advertisements are being delivered and will work to ensure that
delivery of unsold Advertisements is mutually acceptable to the
Parties. In the event that AOL does not provide RS unsold
Advertisement slots in the allocation set forth above on the AOL
Exclusive Sites, as RS' sole remedy, AOL shall offer RS a comparable
number of Advertisements in the house advertisements used on any or
all of the AOL Properties.
1.4. RS Sale Home Finance Products and Builder/Realtor Products
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1.4.1. Home Finance Products. RS shall retain the right to contract
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with third parties for the distribution of Home Finance
Products on the AOL Exclusive Sites, subject to the other
terms and conditions of this Agreement, including, without
limitation, the limitations set forth in Section 1.2 above.
1.4.2. Builder/Realtor Products. The Parties acknowledge that RS
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sells RS Listings to builders and realtors. The Parties agree
that RS may continue such sales of RS Listings to builders and
realtors and that RS may offer DCI Guides and DCI Yellow Page
inventory for sale to such builders and realtors at such
prices and in such RS Listing packages as the Parties shall
mutually agree. The Parties further acknowledge and agree that
AOL will not receive a commission from any sales of RS
Listings by RS.
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* Confidential treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing and
have been separately filed with the Securities and Exchange Commission.
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1.5. Exclusive Sales Period. The "Exclusive Sales Period" shall commence on
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* * and continue until * *,
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provided, however, that AOL shall have the first right to negotiate
with RS for a one-year extension of the Exclusive Sales Period. To
exercise such first right to negotiate, AOL shall notify RS in writing
of its desire to extend the Exclusive Sales Period at least 150 days
prior to * *. In the event that AOL exercises
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the foregoing first right to negotiate, the Parties shall negotiate in
good faith a one-year extension of the Exclusive Sales Period for a
period of sixty (60) days from the date RS receives such notice. RS
shall not, and shall cause its co-branding partners to not, grant any
third party the right to sell Advertisements through the AOL Exclusive
Sites for the option alone-year extension period until the expiration
of such sixty (60) day period. If the Parties have not agreed to such
an extension in writing prior to the expiration of such sixty (60) day
period, RS shall be free to grant a third party the right to sell
Advertisements and Transactional Inventory through the AOL Exclusive
Sites beginning on the expiration of the Exclusive Sales Period,
subject to the additional limitations set forth in Section 1.6.4
below.
1.6. Advertising and Transactional Revenue Commitment.
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1.6.1. Minimum Revenue Commitment. Subject to the revenue commitment
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adjustments set forth in Section 1.6.2 and 1.6.3, as a minimum
sales guarantee, AOL agrees to pay RS a total of * *
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per year in accordance with the following schedule: (a) during
the first year following * * in the first quarter,
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* * in the second quarter, * * in the
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third quarter and * * in the fourth quarter (each a
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"First Year Quarterly Commitment") and (b) during the second
year following * *, * * in each quarter
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(each a "Second Year Quarterly Commitment"). The First Year
Quarterly Commitments and the Second Year Quarterly
Commitments shall be collectively referred to herein as the
("Quarterly Commitments.") Such Quarterly Commitments shall be
in addition to any amounts payable pursuant to Section 2.1 and
shall be paid to RS even if AOL fails to generate Gross AOL
Sales Revenue greater than or equal to any Quarterly
Commitment. The Quarterly Commitment for each quarter shall be
paid at the end of such quarter. For the purposes of this
Section 1.6.1, a quarter shall mean a calendar quarter. The
first calendar quarter during the Term shall be pro-rated
based on the number of days in the Exclusive Sales Period
during such calendar quarter, the remainder of the Quarterly
Commitment for the first calendar quarter shall be paid for
the period between the end of the quarter in which last Second
Year Quarterly Commitment and March 15, 2001.
1.6.2. Revenue Commitment Adjustments. The Parties acknowledge and
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agree that (a) the First Year Quarterly Commitments are based
on RS' provision of an estimated * * ad-enabled page
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views on the AOL Exclusive Sites during such year (the "First
Year Page View Commitment"); and (b) the Second Year Quarterly
Commitments are based on RS' provision of an estimated
* * ad-enabled page views on the AOL Exclusive Sites
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during such year (the "Second Year Page View Commitment"). Ad-
enabled page views shall not include any page views that are
unavailable for the sale or delivery of Advertisements. In the
event RS fails to meet the First Year Page View Commitment or
the Second Year Page View Commitment, the Quarterly
Commitments shall be adjusted as follows:
(i) If RS provides fewer ad-enabled page views than the First
Year Page View Commitment during the first year after
* *, the First
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* Confidential treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing and
have been separately filed with the Securities and Exchange Commission.
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Year Quarterly Commitments shall be reduced by an amount
proportionate to the percentage difference between the
First Year Page View Commitment and the number of ad-
enabled page views provided during such year; and
(j) If RS provides fewer ad-enabled page views than the
Second Year Page View Commitment during the second year
after March 15, 1999, the Second Year Quarterly
Commitments shall be reduced by an amount proportionate
to the percentage difference between the Second Year Page
View Commitment and the number of ad-enabled page views
provided during such year.
1.6.3. Review of Sales Restrictions and Network Buys. Upon the
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request of AOL, AOL and RS agree to meet seven (7) months
after March 15, 1999 to review the restrictions imposed on
AOL's right to sell Advertisements and Transactional Inventory
on the AOL Exclusive Sites pursuant to this Agreement,
including, without limitation, the limitations set forth in
Section 1.1.3. Upon the request of RS, AOL and RS agree to
meet seven (7) months after March 15, 1999 to review the
provisions of Section 2.2 relating to Network Buys. In the
event either AOL or RS initiates such a meeting, AOL and RS
shall negotiate in good faith, for a period of up to thirty
(30) days, the removal or relaxation of such restrictions
and/or the treatment of Network Buys. In the event that AOL
and RS have not reached a mutually satisfactory agreement with
respect to such restrictions within such thirty (30) day
period, the Party initiating the meeting may, at its option,
terminate the Exclusive Sales Period and the provisions of
Sections 1.6.1 and 1.6.2 as of the date eighteen (18) months
after March 15, 1999 by written notice to the other Parties
within ten (10) days after the end of such thirty (30) day
period. If the Party initiating the meeting elects to
terminate the Exclusive Sales Period and Sections 1.6.1 and
1.6.2 pursuant to this Section 1.6.3, the other of AOL and RS
may elect to terminate the Exclusive Sales Period and Section
1.6.1 and 1.6.2 sooner at any time upon thirty (30) days
written notice.
1.6.4. Post Exclusive Sales Period. After the expiration of the
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Exclusive Sales Period, the following provisions shall apply:
(a) Both Parties will have the non-exclusive right to sell
Advertisements and Transactional Inventory through the
Co-Branded Sites, subject to AOL's and RS' then generally
applicable advertising policies and AOL's applicable
exclusivity commitments, provided, however, that:
(i) At least 90 days prior to the expiration of the
Exclusive Sales Period, AOL shall provide RS with a
written list of up to eight third parties and in no
event will RS use any third party included on such
list (or any agent of such third party) to sell
Advertisements or Transactional Inventory on the
Co-Branded Sites; and
(ii) In no event will either Party sell Advertisements
or Transactional Inventory on the Co-Branded Sites:
(a) which promotes the Home Listings Service of
Intuit or Get Smart; (b) to a party listed on
Exhibit B, (c) to an Interactive Service; (d) to
any entity reasonably construed to be in
competition with any third party with which AOL has
an exclusive or premier relationship provided such
third party's category of Content is listed on the
Category List as provided in Section 1.2 (c) above;
and
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(iii) In no event will either Party in any respect
promote, advertise, market or distribute on any
First Screen of the Co-Branded Sites, the products,
services or Content of any entity reasonably
construed to be in competition with any third party
with which AOL has an exclusive or premier
relationship (except any Home Finance Products
offered by such third party) provided that such
third party's category of Content is listed on the
Category List as provided in Section 1.2 (c) or AOL
has notified RS in writing of such category of
Content, excluding any promotion, advertisement,
marketing or distribution which RS is obligated as
of the date of such notice to provide pursuant to a
binding written agreement;
(b) RS may offer the Home Finance Products on any screen of
the Co-Branded Sites other than a First Screen and may
offer any other Transactional Inventory in (i) the area
of the Co-Branded Sites dedicated to RS' commerce
offerings (the "Resource Center") and (ii) subject to
mutual approval of the Parties, in any other areas of the
Co-Branded Sites; and
(c) Any sales of Transactional Inventory through the Co-
Branded Sites will be conducted through a direct sales
format (provided that RS may conduct auctions of real
estate within an appropriate sub-area of the Co-Branded
Sites and subject to the terms and conditions herein and
AOL's then generally applicable policies regarding
auction sales); RS will promote, sell, offer or otherwise
distribute any Products through any other format (e.g.,
through fee-based membership clubs) without the prior
written consent of AOL; provided, however, that RS will
be entitled to offer (i) any third-party fee-based
membership clubs, including the AOL versions of such
clubs offered by Cendant Corp. (e.g., AOL AutoVantage)
(other than a Home Listings Service), subject to the
terms and conditions herein and (ii) a membership club
for real estate professionals.
1.7. Advertising and Transactional Inventory. The Parties will consult and
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mutually agree on logistical matters relating to the Advertising and
Transactional Inventory on the AOL Exclusive Sites, such as slots and
availability. All ad impressions on the AOL Exclusive Sites will be
standard industry impressions or such other form as AOL may determine,
subject to Section 1.1.3(f). RS will be responsible for integrating
the Advertisements and Transactional Inventory sold by AOL into the
respective sites and will consult with AOL in advance regarding any
redesigns of such sites that might affect the Advertising or
Transactional Inventory. In the event that RS modifies its generally
applicable advertising policies in a manner that adversely affects the
Advertising or Transactional Inventory opportunities available to AOL
on of the AOL Exclusive Sites the Impressions guarantee set forth in
the Carriage Plan and the Quarterly Commitments set forth in Section
1.6.1 shall be equitably reduced. AOL will be primarily responsible
for account service and advertising relationships. RS shall have
knowledgeable individuals on call from 9 a.m. to 5 p.m. PST to assist
AOL with any issues relating to the Advertising or Transactional
Inventory arising from the AOL Exclusive Sites. RS shall provide AOL
with at least 60 days prior written notice of any changes in the
Advertisement or Transactional Inventory for the AOL Exclusive Sites.
AOL owns all right, title and interest in and to the promotional and
advertising spaces within the AOL Network. Subject to the advertising
rights of AOL hereunder, RS owns all right, title and interest in and
to the promotional and advertising spaces within the RS Properties.
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1.8. Ad Serving and Reporting Technology. AOL will use its own and third
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party ad serving and reporting technology on the Co-Branded Sites and
other AOL Exclusive Sites and will handle all billing and account
management for Advertisement and Transactional Inventory partners on
such sites. In order for such targeted ad serving to be implemented,
RS will ensure that the data necessary to facilitate such targeting
(e.g., location of home, location of move, etc.) will be made
available to AOL in a manner which allows proper incorporation into
AOL's ad server, and will assist AOL by performing the logical lookup
of Advertisements based on the logic defined. In addition, AOL will
consult with RS in order to aid RS in tracking Impressions through
the AOL Exclusive Sites for purposes of fulfilling RS' reporting and
revenue payment requirements hereunder. The Parties will cooperate to
make available targeted ad serving for use on the Co-Branded Sites
and other AOL Exclusive Sites as soon as commercially practical
following the Effective Date.
1.9. Personnel. RS shall dedicate at least two full-time employees to
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manage the Advertisement and Transactional Inventory on the Co-
Branded Sites and the relationship with AOL.
1.10. Ownership of Data. As between AOL and RS, RS shall own and shall
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retain all right, title and interest in the Content provided on the
RS Properties, and any information provided to AOL hereunder which
derives from the RS Properties, including any information about usage
of the Co-Branded Sites and other RS Properties for which AOL sells
Advertising or Transactional Inventory. RS hereby grants to AOL the
following licenses: (i) a nonexclusive, perpetual, royalty-free
license to reproduce, modify, display and use user data (including,
without limitation, all data on usage patterns and user demographics)
derived from the Co-Branded Sites, but not the right to sell or
otherwise distribute such data to third parties; (ii) during the
Exclusive Sales Period, a nonexclusive, royalty-free license to
reproduce, modify, display and use solely for purposes of performing
its obligations under this Agreement and the Other Agreement in
accordance with the terms of such Agreements any user data
(including, without limitation, all data on usage patterns and user
demographics) derived from any RS Properties for which AOL sells
Advertising or Transactional Inventory, excluding the Co-Branded
Sites. AOL shall not distribute any user data derived from the Co-
Branded Sites or the RS Properties to third parties without the prior
written consent of RS. RS shall provide such user information to AOL
on a monthly basis in a timely manner during the Term.
2. PAYMENTS.
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2.1. Commission Sales Revenues.
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2.1.1. AOL Sales Revenues. During each of the first and second
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years following ▇▇▇▇▇ ▇▇, ▇▇▇▇, ▇▇▇ will pay to RS the
following amount (the "RS Ad Share") relating to the Gross
AOL Sales Revenues received by AOL on behalf of RS from the
sale of Ad Products by AOL or its agents on the Co-Branded
Sites and other AOL Exclusive Sites:
(i) Until Gross AOL Sales Revenues in such year exceed
* * of the Net AOL Sales Revenues received; and
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(ii) Once Gross AOL Sales Revenues in such year exceed
* * of the Net AOL Sales Revenues received
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from the Gross AOL Sales Revenues in excess of
* *.
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AOL will pay the foregoing percentages of Net AOL Sales
Revenues to RS on a quarterly basis within five (5) business
days after the end of the quarter in which
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* Confidential treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing and
have been separately filed with the Securities and Exchange Commission.
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such Gross AOL Sales Revenues are received. Any subsequent
changes in the amounts due for a quarter shall be reconciled
during the next payment cycle. If such reconciliation
indicates an underpayment by AOL, AOL shall include an amount
equal to the difference between the amount owed and the amount
paid in the payment for the next quarter. If such
reconciliation indicates an overpayment by AOL, such amounts
shall be creditable toward any subsequent payments owed by AOL
to RS. Any excess payments outstanding at the end of the last
quarter in which such payments are due shall be promptly
refunded to AOL. Notwithstanding the foregoing, AOL shall be
entitled to offset any such Net AOL Sales Revenues due to RS
against the * * payable by RS pursuant to Section
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4.1(c)-(f) of the Other Agreement, regardless of whether such
payments by RS are due to AOL at the time such Net AOL Sales
Revenues are due to RS.
2.1.2. RS Sales Revenues. If pursuant to Section 1.1.1, AOL has the
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exclusive right to sell Advertisements to less than * *
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of the total traffic to the RS ▇▇▇▇▇▇▇.▇▇▇ Site and the RS
HomeBuilder Site in any quarter, and AOL has not satisfied the
Quarterly Commitment for such quarter, within thirty (30) days
after the end of such quarter, RS will pay AOL an amount equal
to * * of the Net RS Sales Revenues from the sales of
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Advertisements on any versions of the RS ▇▇▇▇▇▇▇.▇▇▇ Site or
RS HomeBuilder Site which are not AOL Exclusive Sites by RS or
its agents.
2.1.3. Sharing of Revenues from Home Finance Products. Each year, RS
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will pay AOL as a commission a Transaction Share (as defined
below) of any RS Home Finance Product Revenues received in
such year. "Transaction Share" means the sum of the following
amounts:
(a) With respect to any RS Home Finance Product Revenues
received from the Co-Branded Sites during the Term: (i)
* * of RS Home Finance Product Revenues; plus
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(ii) * * of all RS Home Finance Product
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Revenues above * *, plus (iii) an additional
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* * of RS Home Finance Product Revenues for
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each * * by which such RS Home Finance Product
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Revenues received in such year exceed * *. For
-------------
example, if RS Home Finance Product Revenues from the Co-
Branded Sites in a year total * *;
-------------
(b) With respect to any RS Home Finance Product Revenues
received from the distribution of Mortgage Services
through the AOL Exclusive Sites other than the Co-Branded
Sites during the Exclusive Sales Period: (i) * *
-----------
of such RS Home Finance Product Revenues from Mortgage
Services; plus (ii) * * of all such RS Home
--------------
Finance Product Revenues from Mortgage Services above
* *; and
---------------
(c) With respect to any RS Home Finance Product Revenues
received from the distribution of Closing Services
through the AOL Exclusive Sites other than the Co-Branded
Sites during the Exclusive Sales Period: (i) * *
-----------
of such RS Home Finance Product Revenues from Closing
Services; plus (ii) * * of all such RS Home
--------------
Finance Product Revenues from Closing Services above
* *.
----------------
-----------------
* Confidential treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing and
have been separately filed with the Securities and Exchange Commission.
9
RS will pay the foregoing amounts on a quarterly basis within
thirty (30) days following the end of the quarter in which the
applicable RS Home Finance Product Revenues were generated.
2.1.4. Revenues from Sales of DCI Guides and Yellow Page Inventory.
-----------------------------------------------------------
For all sales that RS makes of DCI Guide and DCI Yellow Page
inventory as provided in Section 1.4.2, AOL shall pay to RS a
sales commission equal to * * of the net revenues
-------------
attributable to such sales, and AOL shall receive the
remainder of such net revenues.
2.2. Network Buys. To the extent any Gross AOL Sales Revenues are derived
------------
from the sale or provision of Advertisements (including any
Advertisements for Home Finance Products) through a Network Buy, the
prices for the RS Advertisements shall be allocated across such
Network Buy *
--------------------------------------------------------
--------------------------------------------------------------------
--------------------------------------------------------------------
*.
---------------
2.3. Alternative Revenue Streams. In the event RS or any of its Affiliates
---------------------------
(a) receives or desires to receive any direct compensation in
connection with the Co-Branded Sites other than Sales Revenues or Home
Finance Product Revenues (an "Alternative Revenue Stream"), RS will
promptly inform AOL in writing, and the Parties will negotiate in good
faith regarding the equitable portion of revenues from such
Alternative Revenue Stream (if applicable) that will be shared with
AOL. RS will not launch the product or service from which such
Alternative Revenue Stream will be derived, until agreement on such
equitable portion of revenues is reached. In the event the Parties
cannot in good faith reach agreement regarding such Alternative
Revenue Stream within ten (10) days of AOL's request to negotiate, AOL
will have the right to request RS to submit the issue for resolution
pursuant to Section 4.
2.4. Late Payments; Wired Payments. All amounts owed hereunder not paid
-----------------------------
when due and payable will bear interest from the date such amounts are
due and payable at the prime rate in effect at such time. All
payments to either Party required hereunder will be paid in
immediately available, non-refundable U.S. funds and wired to the
following accounts or such other account as designated in writing by
such Party:
If to AOL: "America Online" account, Account Number 323070752 at
---------
The Chase Manhattan Bank, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇ (ABA: ▇▇▇▇▇▇▇▇▇).
If to RS: "RealSelect" account, Account Number ▇▇▇▇▇-▇▇▇▇▇ Bank
--------
of America, Warner Center Regional ▇▇▇▇▇▇ #▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (ABA: ▇▇▇▇▇▇▇▇▇).
2.5. Auditing Rights. Each Party will maintain complete, clear and
---------------
accurate records of all expenses, revenues and fees in connection with
the performance of this Agreement. For the sole purpose of ensuring
compliance with this Agreement, each Party will have the right, at its
expense, to direct an independent certified public accounting firm to
conduct a reasonable and necessary inspection of portions of the books
and records of the other Party which are relevant to such other
Party's payment of such expenses, revenues and fees. Any such audit
may be conducted after twenty (20) business days prior written notice;
provided that no such audit of AOL will occur during the period
commencing June 1 and ending September 30.
-----------------
* Confidential treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing and
have been separately filed with the Securities and Exchange Commission.
10
2.6. Taxes. Each Party will collect and pay and indemnify and hold the
-----
other Party harmless from, any sales, use, excise, import or export
value added or similar tax or duty not based on the other Party's net
income, including any penalties and interest, as well as any costs
associated with the collection or withholding thereof, including
attorneys' fees.
2.7. Reports.
-------
2.7.1. RS Reports. RS will provide AOL in an automated manner with a
----------
monthly report in a mutually agreed format, detailing the
following activity in such period by AOL Users (and any other
information mutually agreed upon by the Parties or reasonably
required for measuring revenue activity by RS through the Co-
Branded Sites): (i) summary sales information by day (date,
number of products, number of orders, total Home Finance
Product Revenues); (ii) detailed sales information (order
date/time stamp (if technically feasible), purchaser name and
screenname, SKU or product description); (iii) daily numbers
of searches for listings; (iv) with respect to all listings
searched in each month, average data for RS' search criteria
(e.g., sales price, number of bedrooms, etc.); (v) detailed
pageview reporting by screen type and/or location of screen;
and (vi) to the extent available to RS, aggregate data across
such search criteria in each month (e.g., number of searches
for 4-bedroom homes) (such information in clauses (i), (ii),
(iii), (iv) and (v), "Sales Reports"). RS shall begin
providing such reports as soon as possible after March 15,
1999, and shall have the capacity to provide all such reports
in place no later than 90 days after March 15, 1999. AOL will
be entitled to use the Sales Reports in its business
operations, subject to the terms of this Agreement. More
generally, each payment to be made by RS pursuant to this
Section 2 will be accompanied by a report containing
information which supports the payment, including information
identifying ▇▇▇▇▇ ▇▇ Sales Revenues and all items deducted or
excluded from ▇▇▇▇▇ ▇▇ Sales Revenues to produce Net RS Sales
Revenues.
2.7.2. Fraudulent Transactions. To the extent permitted by
-----------------------
applicable laws, RS will provide AOL with an prompt report of
any fraudulent order, including the date, screen name or email
address and amount associated with such order, promptly
following RS obtaining knowledge that the order is, in fact,
fraudulent.
2.7.3. AOL Reports. AOL will provide RS an automated monthly report
-----------
detailing the advertising activity in such period, customer
purchases of Advertising by property, average CPM across buys,
average CPM by property, term of buy, and user traffic reports
by property, each report in such format as mutually agreed by
the Parties. Each payment of Sales Revenues to be made by AOL
pursuant to Section 2.1.1 will be accompanied by a report
containing information which supports the payment, including
information identifying gross Sales Revenues and all items
deducted or excluded from gross Sales Revenues to produce
Sales Revenues, including, without limitation, Advertising
Sales Commissions.
3. TERM; RENEWAL; TERMINATION.
--------------------------
3.1. Term. Unless earlier terminated as set forth herein, the initial term
----
of this Agreement will commence on the Effective Date and expire on
* * (the "Initial Term").
-----------------
3.2. Renewal. Upon conclusion of the Initial Term of this Agreement, AOL
-------
will have the right to renew the Agreement for up to three (3)
successive one-year renewal terms (each a "Renewal Term" and together
with the Initial Term, the "Term") by providing RS with notice of
AOL's intention to renew the Agreement for a subsequent Renewal Term
no
-----------------
* Confidential treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing and
have been separately filed with the Securities and Exchange Commission.
11
later than thirty (30) days prior to the commencement of such Renewal
Term; provided, however, that the Agreement thereafter may be renewed
for additional successive one-year renewal terms with RS' consent.
During any such Renewal Term: (i) AOL will not have the exclusive
rights set forth in Section 1.1.1; (ii) * *; and (iii) RS
--------------
will pay AOL the greater of (a) * * of Home Finance
---------------
Product Revenues from the Co-Branded Sites only and (b) * *.
------------
AOL's right to renew will apply in connection with (i) an expiration
of the Initial Term or any Renewal Term and (ii) any termination of
the Agreement, except termination by RS pursuant to Section 3.3.
3.3. Termination for Breach. Except as expressly provided elsewhere in
----------------------
this Agreement, either Party may terminate this Agreement at any time
in the event of a material breach of the Agreement by the other Party
which remains uncured after thirty (30) days written notice thereof to
the other Party (or such shorter period as may be specified elsewhere
in this Agreement); provided that the cure period with respect to any
scheduled payment will be fifteen (15) days following written notice
that such payment is due. Notwithstanding the foregoing, in the event
of a material breach of a provision that expressly requires action to
be completed within an express period shorter than 30 days; either
Party may terminate this Agreement if the breach remains uncured
following written notice thereof to the other Party for a time period
equal to the length of such express period.
3.4. Termination for Bankruptcy/Insolvency. Either Party may terminate
-------------------------------------
this Agreement immediately following written notice to the other Party
if the other Party (i) ceases to do business in the normal course,
(ii) becomes or is declared insolvent or bankrupt, (iii) is the
subject of any proceeding related to its liquidation or insolvency
(whether voluntary or involuntary) which is not dismissed within
ninety (90) calendar days or (iv) makes an assignment for the benefit
of creditors.
3.5. Termination on Change of Control. In the event of a Change of Control
--------------------------------
of RS resulting in control of RS by an Interactive Service, AOL may
terminate this Agreement by providing RS with thirty (30) days prior
written notice of such intent to terminate. In the event of a Change
of Control of AOL: (i) AOL may terminate this Agreement by providing
RS with twenty-four (24) months prior written notice of such intent to
terminate; and (ii) in the event of a Change of Control of AOL by a
competitor of RS' real estate related business, RS may terminate this
Agreement by providing AOL with sixty (60) days prior written notice
of such termination. *
------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
*.
---------------
3.6. Termination on Termination of Other Agreement. In the event of the
---------------------------------------------
termination of the Other Agreement, either Party may terminate this
Agreement immediately upon written notice to the other Party.
4. MANAGEMENT COMMITTEE/ARBITRATION.
--------------------------------
4.1. The Parties will act in good faith and use commercially reasonable
efforts to promptly resolve any claim, dispute, claim, controversy or
disagreement (each a "Dispute") between the Parties or any of their
respective subsidiaries, Affiliates, successors and assigns under or
related to this Agreement or any document executed pursuant to this
Agreement or any of the transactions contemplated hereby. If the
Parties cannot resolve the Dispute within such time frame, the Dispute
will be submitted in writing by a Party to
-----------------
* Confidential treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing and
have been separately filed with the Securities and Exchange Commission.
12
the Management Committee for resolution. For ten (10) days following
submission of the Dispute to the Management Committee, the Management
Committee will have the exclusive right to resolve such Dispute;
provided further that the Management Committee will have the final and
exclusive right to resolve Disputes arising from any provision of the
Agreement which expressly or implicitly provides for the Parties to
reach mutual agreement as to certain terms. If the Management
Committee is unable to amicably resolve the Dispute during the ten day
period, then the Management Committee will consider in good faith the
possibility of retaining a third party mediator to facilitate
resolution of the Dispute. In the event the Management Committee
elects not to retain a mediator, the dispute will be subject to the
resolution mechanisms described below. "Management Committee" will
mean a committee made up of a senior executive from each of the
Parties for the purpose of resolving Disputes under this Section 4 and
generally overseeing the relationship between the Parties contemplated
by this Agreement. Neither Party will seek, nor will be entitled to
seek, binding outside resolution of the Dispute unless and until the
Parties have been unable amicably to resolve the Dispute as set forth
in this Section 4 and then, only in compliance with the procedures set
forth in this Section 4.
4.2. Except for Disputes relating to issues of (i) proprietary rights,
including but not limited to intellectual property and
confidentiality, and (ii) any provision of the Agreement which
expressly or implicitly provides for the Parties to reach mutual
agreement as to certain terms (which will be resolved by the Parties
solely and exclusively through amicable resolution as set forth in
Section 4.1), any Dispute not resolved by amicable resolution as set
forth in Section 4.1 will be governed exclusively and finally by
arbitration. Such arbitration will be conducted by the American
Arbitration Association ("AAA") in Washington, D.C. (if the Dispute
was first submitted to the Management Committee by RS) or San
Francisco, California (if the Dispute was first submitted to the
Management Committee by AOL) and will be initiated and conducted in
accordance with the Commercial Arbitration Rules ("Commercial Rules")
of the AAA, including the AAA Supplementary Procedures for Large
Complex Commercial Disputes ("Complex Procedures"), as such rules will
be in effect on the date of delivery of a demand for arbitration
("Demand"), except to the extent that such rules are inconsistent with
the provisions set forth herein. Notwithstanding the foregoing, the
Parties may agree in good faith that the Complex Procedures will not
apply in order to promote the efficient arbitration of Disputes where
the nature of the Dispute, including without limitation the amount in
controversy, does not justify the application of such procedures.
4.3. The arbitration panel will consist of three arbitrators. Each Party
will name an arbitrator within ten (10) days after the delivery of the
Demand. The two arbitrators named by the Parties may have prior
relationships with the naming Party, which in a judicial setting would
be considered a conflict of interest. The third arbitrator, selected
by the first two, should be a neutral participant, with no prior
working relationship with either Party. If the two arbitrators are
unable to select a third arbitrator within ten (10) days, a third
neutral arbitrator will be appointed by the AAA from the panel of
commercial arbitrators of any of the AAA Large and Complex Resolution
Programs. If a vacancy in the arbitration panel occurs after the
hearings have commenced, the remaining arbitrator or arbitrators may
not continue with the hearing and determination of the controversy,
unless the Parties agree otherwise.
4.4. The Federal Arbitration Act, 9 U.S.C.(S)(S) 1-16, and not state law,
will govern the arbitrability of all Disputes. The arbitrators will
allow such discovery as is appropriate to the purposes of arbitration
in accomplishing a fair, speedy and cost-effective resolution of the
Disputes. The arbitrators will reference the Federal Rules of Civil
Procedure then in effect in setting the scope and timing of discovery.
The Federal Rules of Evidence will apply in toto. The
13
arbitrators may enter a default decision against any Party who fails
to participate in the arbitration proceedings.
4.5. The arbitrators will have the authority to award compensatory damages
only. Any award by the arbitrators will be accompanied by a written
opinion setting forth the findings of fact and conclusions of law
relied upon in reaching the decision. The award rendered by the
arbitrators will be final, binding and non-appealable, and judgment
upon such award may be entered by any court of competent jurisdiction.
The Parties agree that the existence, conduct and content of any
arbitration will be kept confidential and no Party will disclose to
any person any information about such arbitration, except as may be
required by law or by any governmental authority or for financial
reporting purposes in each Party's financial statements.
4.6. The non-prevailing Party (as determined by the arbitrators) will pay
the reasonable fees of each Party's own outside attorneys, reasonable
expenses of witnesses and all other reasonable expenses and costs in
connection with the presentation of such Party's case (collectively,
"Attorneys' Fees"). The remaining costs of the arbitration, including
without limitation, fees of the arbitrators, costs of records or
transcripts and administrative fees (collectively, "Arbitration
Costs") will be born equally by the Parties. Notwithstanding the
foregoing, the arbitrators may modify the allocation of Arbitration
Costs and Attorneys' Fees in those cases where fairness dictates a
different allocation of Arbitration Costs between the Parties.
5. ADDITIONAL CONSIDERATION.
------------------------
5.1. Base Warrant. On the tenth day following the Effective Date, Net
------------
Select issued to AOL a warrant (the "Base Warrant") granting to AOL
the right for three (3) years to purchase a number of shares of Net
Select common stock (the "Base Warrant Shares") equal to two and one-
half percent (2.5%) of the equity securities of Net Select, on a fully
diluted basis (excluding any employee stock options) calculated as of
the Effective Date, at a price per share equal to the lowest price per
share paid by investors in first Financing Event (as defined
below)following the Effective Date. The Base Warrant Shares will vest
upon execution of the Base Warrant. AOL will not be entitled to
exercise the Base Warrant Shares until the earlier of the following:
(a) a Change of Control of RS or Net Select, (b) fifteen (15) months
from the Effective Date, (c) the IPO, in the event AOL desires to
purchase IPO Shares, as described in Section 5.2, but is not permitted
to make such purchase, or (d) AOL's purchase of the IPO Shares. The
Base Warrant will expire upon AOL's failure to offer to purchase the
IPO Shares. Any shares of Net Select common stock acquired by AOL
upon exercise of the Base Warrant will possess rights substantially
equal to the rights granted to investors in the first Financing Event
following the Effective Date, but at least co-sale rights, piggyback
registration rights and S-3 demand registration rights. A "Financing
Event" is an IPO or a private equity investment in Net Select. Within
thirty (30) days after March 15, 1999, the Parties shall execute an
agreement documenting the grant of the Base Warrants as of the tenth
day after the Effective Date on the terms set forth in this Section
5.1. In the event that Net Select and AOL have not entered into an
agreement which documents the grant of Base Warrants hereby made by
Net Select to AOL within thirty (30) days from the Effective Date, the
provisions of this Section 5.1 contain all of the principal and
essential terms and conditions of the Base Warrant granted to AOL
hereunder and such provisions will be fully self-effectuating in all
respects. Net Select and AOL will use all reasonable efforts to
negotiate such an agreement in good faith within such 30-day period.
5.2. IPO Shares; Supplemental Warrants. AOL has indicated that it desires
---------------------------------
to purchase shares of the common stock of Net Select aggregating
$2,000,000 in purchase price in
14
the IPO at the purchase prices per share indicated below (the "IPO
Shares"). Net Select has indicated that it desires to sell the IPO
Shares to AOL. If AOL purchases the IPO Shares in the IPO,
concurrently with the closing of the IPO Net Select agrees to sell to
AOL (in addition to the IPO Shares), at a purchase price equal to 1%
of the aggregate exercise price of the applicable warrant, the
following warrants (the "Supplemental Warrants"), with each warrant
expiring four (4) years after the date of the IPO: (A) a warrant to
purchase a number of shares of Net Select common stock at an exercise
price equal to the "Price to Public" set forth on the cover page of
the prospectus for the IPO (net of underwriting discounts and
commissions) such that the aggregate exercise price is equal to
$1,500,000; (B) a warrant to purchase a number of shares of Net Select
common stock at an exercise price equal to 150% of the "Price to
Public" such that the aggregate exercise price is equal to $750,000;
and (C) a warrant to purchase a number of shares of Net Select common
stock at an exercise price equal to 200% of the "Price to Public" such
that the aggregate exercise price is equal to $750,000. Sale of such
stock and warrants, and subsequent exercise of each warrant, will be
subject to the following: (i) compliance with applicable securities
laws; (ii) execution of appropriate definitive agreements; (iii)
solely with respect to purchase in the IPO, such purchase constituting
10% or fewer of the aggregate number of shares sold in the IPO; and
(iv) solely with respect to exercise of each warrant, AOL acquiring
upon exercise of such warrant a number of shares that is less than 5%
of the outstanding stock of Net Select; provided that in the event
clauses (iii) or (iv) prevent such sale or exercise, AOL and Net
Select will promptly in good faith negotiate and agree upon
alternative arrangements that produce at least substantially similar
compensation for AOL. Shares of Net Select common stock issuable
pursuant to the Supplemental Warrants will either be registered in the
IPO or will possess demand registration rights.
5.3. Alternative IPO. Net Select hereby represents and warrants that (a)
---------------
RS's assets (including the RS Public Site) represent the primary value
of Net Select's business and (b) Net Select does not own or control
any material asset other than RS's assets. Net Select also
acknowledges that its intent is to complete the IPO of Net Select,
rather than the IPO of RS. In the event that (i) there is a material
change in the structure or holdings of Net Select such that RS is no
longer a core asset of Net Select or (ii) Net Select elects to pursue
an IPO of RS rather than of Net Select, at AOL's option, the Base
Warrant and Supplemental Warrants described in this Section 5 will, in
accordance with the terms and conditions specified herein, grant to
AOL rights with respect common stock in RS (or in the entity that then
owns and controls RS).
6. NET SELECT GUARANTEE. Net Select hereby unconditionally guarantees to AOL
--------------------
(i) the full and prompt payment of all amounts which may become due and
owing to AOL from RS pursuant to this Agreement and (ii) the due
performance of RS of all of its obligations under this Agreement, (all of
the foregoing, collectively, are hereinafter referred to as the "Guarantee
Obligations"). The obligations of Net Select under this Section 6 shall
not be impaired by any modification, supplement, extension or amendment of
any contract or agreement between AOL and RS, whether now existing or
hereafter arising, including, without limitation, this Agreement, nor by
any modification, release or other alteration of any of the Guaranteed
Obligations or of any security therefor, and the liability of Net Select
shall apply to the Guaranteed Obligations as so altered, modified,
supplemented, extended or amended. No invalidity, irregularity or
unenforceability of all or any part of the Guaranteed Obligations or of any
security therefor (including, without limitation, as a result of the
bankruptcy, reorganization or insolvency of the RS, or pursuant to any
assignment for the benefit of creditors, receivership, or similar
proceeding) shall affect, impair or be a defense to the obligations of Net
Select under this Section 6 which are the primary obligations of Net
Select, and nothing shall discharge or satisfy the liability of Net Select
15
hereunder except the full payment and performance of the Guaranteed
Obligations. This Section 6 shall survive termination of this Agreement.
7. STANDARD TERMS. The Standard Legal Terms & Conditions set forth on Exhibit
--------------
D attached hereto are hereby made a part of this Agreement.
16
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
Effective Date.
AMERICA ONLINE, INC. REALSELECT, INC.
By: By:
------------------------------- -------------------------------
Print Name: Print Name:
----------------------- -----------------------
Title: Title:
---------------------------- ----------------------------
Date: Date:
----------------------------- -----------------------------
NETSELECT, INC.
By:
-------------------------------
Print Name:
-----------------------
Title:
----------------------------
Date:
-----------------------------
17
[CONFIDENTIAL TREATMENT REQUESTED] Final Execution Copy
Confidential
EXHIBIT A
Definitions
-----------
The following definitions will apply to this Agreement:
Ad Products. Advertisements, Transactional Inventory and Home Finance Products.
-----------
Advertising or Advertisements. Promotions, advertisements, links, pointers or
----------- --------------
similar services or rights, including without limitation, Standard
Advertisements and Sponsorship Packages, but not Transactional Inventory or RS
Listings.
Affiliate. With respect to any Person, any other Person which, at the time such
---------
determination is being made, is Controlling, Controlled by or under common
Control with such Person. For the purposes hereof, (i) "Control," whether used
as a noun or verb, refers to the possession, directly or indirectly, of the
power to affirmatively direct, or affirmatively cause the direction of, the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise, and (ii) a "beneficial owner" of a
security is any Person who, directly or indirectly, through any contract,
arrangement, understanding, relationship or otherwise has or shares (x) voting
power, which includes the power to vote, or direct the voting of, such security,
or (y) investment power, which includes the power to dispose, or to direct the
disposition of, such security.
AOL Exclusive Sites. The sites with respect to which AOL has the exclusive
-------------------
right to sell Advertisements and Transactional Inventory pursuant to Section
1.1.1. Each site shall be an AOL Exclusive Site for so long as AOL retains the
exclusive right to sell Advertisements and Transactional Inventory to such
sites.
AOL Interactive Site. Any Interactive Site which is managed, maintained, owned
--------------------
or controlled by AOL or its agents.
AOL Member. Any authorized user of the AOL Service, including any sub-accounts
----------
using the AOL Service under an authorized master account.
AOL Network. (i) The AOL Service, (ii) ▇▇▇.▇▇▇ and (iii) any other product or
-----------
service owned, operated, distributed or authorized to be distributed by or
through AOL or its Affiliates worldwide (and including those properties excluded
from the definitions of the AOL Service, the DCI Service or ▇▇▇.▇▇▇). It is
understood and agreed that the rights of RS relate only to the AOL Service and
▇▇▇.▇▇▇ and not generally to the AOL Network.
AOL Properties. The AOL Service, ▇▇▇.▇▇▇, the DCI Service, the CompuServe
--------------
Service, the DCI NetCenter Local Service and such other services or sites as the
parties mutually agree in writing to consider AOL Properties.
AOL Service. The standard, narrow-band U.S. version of the America Online(R)
-----------
brand service (even if accessed at higher speeds), specifically excluding (a)
the DCI Service, ▇▇▇.▇▇▇ or any other AOL Interactive Site, (b) the
international versions of the U.S. version of the America Online(R) brand
service (e.g., AOL Japan), (c) "Driveway," "AOL NetFind," "AOL Instant
Messenger," "NetMail" or any similar independent product or service offered by
or through the U.S. version of the America Online(R) brand service, (d) any
programming or Content area offered by or through the U.S. version of the
America Online(R) brand service over which AOL does not exercise substantially
complete operational control (including, without limitation, Content areas
substantially controlled by other parties and member-created Content areas), (e)
any yellow pages, white pages or other search, directory or review services or
Content (other than a Home Listings Service directly promoted by AOL on the
America Online(R) brand service) offered by or through the U.S. version of the
America Online(R) brand service, (f) any property, feature,
A-1
Final Execution Copy
Confidential
product or service which AOL or its Affiliates may acquire subsequent to the
Effective Date (other than a Home Listings Service directly promoted by AOL on
the America Online(R) brand service) and (g) any other version of an America
Online service which is materially different from the narrow-band U.S. version
of the America Online brand service, by virtue of its branding, distribution,
functionality, Content and services, including, without limitation, any co-
branded version of the service and any version distributed through any broadband
distribution platform or through any platform or device other than a desktop
personal computer.
AOL User. Any user of the AOL Properties or the AOL Network.
--------
▇▇▇.▇▇▇. AOL's primary Internet-based Interactive Site marketed under the
-------
"▇▇▇.▇▇▇" brand, specifically excluding (a) the DCI Service and the AOL Service,
(b) any international versions of such site, (c) "Driveway," "AOL NetFind," "AOL
Instant Messenger," "NetMail" or any similar independent product or service
offered by or through such site or any other AOL Interactive Site, (d) any
programming or Content area offered by or through such site over which AOL does
not exercise substantially complete operational control (including, without
limitation, Content areas substantially controlled by other parties and member-
created Content areas), (e) any yellow pages, white pages or other search,
directory or review services or Content offered by or through such site or any
other AOL Interactive Site (other than a Home Listings Service directly promoted
by AOL through such site), (f) any property, feature, product or service which
AOL or its Affiliates may acquire subsequent to the Effective Date (other than a
Home Listings Service directly promoted by AOL through such site)and (g) any
other version of an America Online Interactive Site which is materially
different from AOL's primary Internet-based Interactive Site marketed under the
"▇▇▇.▇▇▇" brand, by virtue of its branding, distribution, functionality, Content
and services, including, without limitation, any co-branded versions and any
version distributed through any broadband distribution platform or through any
platform or device other than a desktop personal computer.
Change of Control. (a) The consummation of a reorganization, merger or
-----------------
consolidation or sale or other disposition of substantially all of the assets of
a party; or (b) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1933,
as amended) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under such Act) of more than 50% of either (i) the then outstanding
shares of common stock of such party; or (ii) the combined voting power of the
then outstanding voting securities of such party entitled to vote generally in
the election of directors.
Closing Services. A fee-based service related to the origination of first
----------------
mortgages and the following other fee-based services: appraisals, credit
reports, flood certifications and title reports.
Co-Branded Sites. The version of each of the RS Properties that is co-branded
----------------
with AOL in accordance with the terms and conditions of the Other Agreement.
There will be different versions of the Co-Branded Sites for each Co-Branding
Partner.
Co-Branding Partner. The AOL Service, with respect to the AOL Service version
-------------------
of the Co-Branded Sites; ▇▇▇.▇▇▇ with respect to the ▇▇▇.▇▇▇ version of the Co-
Branded Sites; the DCI Service with respect to the DCI Service version of the
Co-Branded Sites, the CompuServe Service with respect to the CompuServe version
of the Co-Branded Sites, and the DCI NetCenter Local Service with respect to the
DCI NetCenter version of the Co-Branded Sites.
Commercial Listings Service. An online database of classified listings for new
---------------------------
and/or existing commercial properties for sale or rent searchable by prospective
commercial buyers or renters. Commercial Listings Service does not include: (i)
listings for any other form of real estate other than new and/or existing
commercial real estate (including, without limitation, new or existing homes, or
non-commercial rental properties), (ii) any commercial property listings posted
online by AOL Users or a for sale by owner (FSBO) listings database.
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CompuServe Service. The standard, narrow-band U.S. version of the CompuServe(R)
------------------
brand service (even if accessed at higher speeds) and ▇▇▇▇▇▇▇▇▇▇.▇▇▇,
specifically excluding (a) the DCI Service, ▇▇▇.▇▇▇ or any other AOL Interactive
Site, (b) the international versions of the U.S. version of the CompuServe(R)
brand service (e.g., CompuServe Europe), (c) "Driveway," "AOL NetFind," "AOL
Instant Messenger," "NetMail" or any similar independent product or service
offered by or through the U.S. version of the CompuServe(R) brand service, (d)
any programming or Content area offered by or through the U.S. version of the
CompuServe(R) brand service over which CompuServe does not exercise
substantially complete operational control (including, without limitation,
Content areas substantially controlled by other parties and member-created
Content areas), (e) any yellow pages, white pages or other search, directory or
review services or Content (other than a Home Listings Service directly promoted
by AOL on the CompuServe(R) brand service) offered by or through the U.S.
version of the CompuServe(R) brand service, (f) any property, feature, product
or service which AOL or its Affiliates may acquire subsequent to the Effective
Date (other than a Home Listings Service directly promoted by AOL on the
CompuServe(R) brand service) and (g) any other version of the CompuServe Service
which is materially different from the narrow-band U.S. version of the
CompuServe(R) brand service, by virtue of its branding, distribution,
functionality, Content and services, including, without limitation, any co-
branded version of the service and any version distributed through any broadband
distribution platform or through any platform or device other than a desktop
personal computer.
Confidential Information. Any information relating to or disclosed in the
------------------------
course of the Agreement, which is or should be reasonably understood to be
confidential or proprietary to the disclosing Party, including, but not limited
to, the material terms of this Agreement, information about AOL Members, AOL
Users, AOL Purchasers and RS customers, technical processes and formulas, source
codes, product designs, sales, cost and other unpublished financial information,
product and business plans, projections, and marketing data. "Confidential
Information" will not include information (a) already lawfully known to or
independently developed by the receiving Party, (b) disclosed in published
materials, (c) generally known to the public, or (d) lawfully obtained from any
third party.
Content. Text, images, video, audio (including, without limitation, music used
-------
in synchronism or timed relation with visual displays) and other data, Products,
advertisements, promotions, links, pointers and software, including any
modifications, upgrades, updates, enhancements and related documentation.
DCI. Digital City, Inc.
---
DCI NetCenter Local Service. The standard, narrow-band U.S. version of the DCI
---------------------------
co-branded local service carried through Netscape (even if accessed at higher
speeds), specifically excluding (a) the DCI Service, AOL Service and ▇▇▇.▇▇▇ or
any other AOL Interactive Site, (b) any international versions of the U.S.
version of the DCI co-branded local service carried through Netscape, (c)
"Driveway," "AOL NetFind," "AOL Instant Messenger," "NetMail" or any similar
independent product or service offered by or through the U.S. version of DCI co-
branded local service carried through Netscape, (d) any version of the DCI co-
branded local service carried through Netscape over which DCI does not exercise
substantially complete ownership or operational control, (e) any programming or
Content area offered by or through the U.S. version of the DCI co-branded local
service carried through Netscape over which DCI does not exercise substantially
complete operational control (including, without limitation, Content areas
substantially controlled by other parties and member-created Content areas), (f)
any yellow pages, white pages, classifieds or other search, directory or review
services or Content offered by or through the U.S. version of the DCI co-branded
local service carried through Netscape (other than a Home Listings Service
directly promoted by AOL through the U.S. version of the co-branded local
service distributed through DCI NetCenter and DCI), (g) any property, feature,
product or service which DCI or its Affiliates may acquire subsequent to the
Effective Date (other than a Home Listings Service directly promoted by AOL
through the DCI co-branded local service carried through Netscape and (h) any
other version of a Digital City service which is materially different from the
narrow-band U.S. version of the DCI co-branded local service carried through
Netscape, by virtue of its branding, distribution, functionality, Content and
services,
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Confidential
including, without limitation, any co-branded version of the service and any
version distributed through any broadband distribution platform or through any
platform or device other than a desktop personal computer.
DCI Service. The standard, narrow-band U.S. version of the Digital City(R)
-----------
brand service (even if accessed at higher speeds), specifically excluding (a)
the AOL Service and ▇▇▇.▇▇▇ or any other AOL Interactive Site, (b) any
international versions of the U.S. version of the Digital City(R) brand service,
(c) "Driveway," "AOL NetFind," "AOL Instant Messenger," "NetMail" or any similar
independent product or service offered by or through the U.S. version of the
Digital City(R) brand service, (d) any version of the Digital City(R) brand
service over which DCI does not exercise substantially complete ownership or
operational control, (e) any programming or Content area offered by or through
the U.S. version of the Digital City(R) brand service over which DCI does not
exercise substantially complete operational control (including, without
limitation, Content areas substantially controlled by other parties and member-
created Content areas), (f) any yellow pages, white pages, classifieds or other
search, directory or review services or Content offered by or through the U.S.
version of the Digital City(R) brand service (other than a Home Listings Service
directly promoted by AOL through the U.S. version of the Digital City(R) brand
service), (g) any property, feature, product or service which DCI or its
Affiliates may acquire subsequent to the Effective Date (other than a Home
Listings Service directly promoted by AOL through the U.S. version of the
Digital City(R) brand service) and (h) any other version of a Digital City
service which is materially different from the narrow-band U.S. version of the
Digital City(R) brand service, by virtue of its branding, distribution,
functionality, Content and services, including, without limitation, any co-
branded version of the service and any version distributed through any broadband
distribution platform or through any platform or device other than a desktop
personal computer.
First Screen. The first screen of the Co-Branded Sites that is accessed from
------------
any promotion on the AOL Network.
Gross AOL Sales Revenue. The aggregate amount received by or on behalf of AOL
-----------------------
as agent for RS: (a) on the sale or provision of any Advertisements on ad-
enabled pages of the Co-Branded Sites and any other AOL Exclusive Sites and (b)
on the sale, licensing, distribution or provision of any Transactional Inventory
and Home Finance Products on the Co-Branded Sites and any other AOL Exclusive
Sites.
▇▇▇▇▇ ▇▇ Sales Revenue. The aggregate amount received by or on behalf of RS:
----------------------
(a) on the sale or provision of any Advertisements on ad-enabled pages of the
Co-Branded Sites and any other AOL Exclusive Sites and (b) on the sale,
licensing, distribution or provision of any Transactional Inventory on the Co-
Branded Sites and any other AOL Exclusive Sites.
Home Finance Products. The Closing Services and the Mortgage Services.
---------------------
Home Listings Service. The aggregation of nation-wide property listings from
---------------------
the Multiple Listings Service and other third party content providers for new
and/or existing homes (including vacation homes) in an online database
searchable by prospective home buyers. Home Listings Service does not include:
(i) listings for any other form of real estate other than new and existing homes
(including, without limitation, rental properties or commercial real estate),
(ii) any home listings posted online by AOL Users or a for sale by owner (FSBO)
listings database or (iii) any aggregator of new and/or existing home listings
from such aggregator's own listings (e.g., Century 21, ERA, Coldwell Banker),
except solely to the extent that (a) two (2) or more of the above-named entities
work together to create a single Home Listings Service which combines Home
Listings Services from each participating entity or (b) the amount of existing
and/or new home listings offered online by any such aggregator exceeds twenty-
five percent (25%) of the homes listed nationwide through the Multiple Listing
Services.
Impression. User exposure to the page 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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Interactive Service. Any entity that offers online or Internet connectivity (or
-------------------
any successor form of connectivity), aggregates and/or distributes a broad
selection of third-party interactive Content (e.g., Cendant Corp.), or provides
interactive navigational services (including, without limitation, Yahoo,
Microsoft Network, PointCast Network, Infoseek, Lycos, Snap, Classifieds 2000
and USA Today and any online service providers, Internet service providers,
WebTV, @Home or other broadband providers, search or directory providers, "push"
product providers such as the Pointcast Network or providers of interactive
navigational environments such as Microsoft's "Active Desktop").
Interactive Site. Any interactive site or area, including, by way of example and
----------------
without limitation, (i) an RS site on the World Wide Web portion of the Internet
or (ii) a channel or area delivered through a "push" product such as the
Pointcast Network or interactive environment such as Microsoft's Active Desktop.
IPO. The date RS completes any initial public underwritten public offering
----
registered with the Securities Exchange Commission or any state regulatory
agency.
Licensed Content. All Content offered through the Co-Branded Sites pursuant to
----------------
this Agreement or otherwise provided by RS or its agents in connection herewith
(e.g., offline or online promotional Content, Placements, AOL "slideshows" ,
etc.), including, without limitation, the API Software and including in each
case, any modifications, upgrades, updates, enhancements, and related
documentation.
Mortgage Services. First mortgage products offered on AOL Exclusive Sites.
-----------------
Net AOL Sales Revenue. Gross AOL Sales Revenue less: (i) any handling,
---------------------
shipping or service charges; (ii) any amounts paid for sales or use taxes;(iii)
any duties, credits or chargebacks for returned or cancelled goods or services;
and (iv) Operating Expenses, provided however that such Operating Expenses shall
not exceed 15% of the aggregate amounts received with respect to such
Advertising, Transactional Inventory and Home Finance Products net of (i), (ii)
and (iii) above.
Net RS Sales Revenues. ▇▇▇▇▇ ▇▇ Sales Revenue less (i) any handling, shipping
---------------------
or service charges; (ii) any amounts paid for sales or use taxes;(iii) any
duties, credits or chargebacks for returned or cancelled goods or services; (iv)
fees paid to ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac, Intuit or a third party processor (whose
fees shall not be more than the industry standard) for the use of mortgage
processing related services (except to the extent RS is not entitled to any such
fees); and (v) Operating Expenses, provided however that such Operating Expenses
shall not exceed 15% of the aggregate amounts received with respect to such
Advertising and Transactional Inventory net of (i), (ii) and (iii) above.
Network Buy. The purchase of Advertisements (including any Advertisements for
------------
Home Finance Products) on a combination of AOL Exclusive Sites and other AOL
Properties.
Operating Expenses. AOL's or RS', as the case may be, (a) actual cost of goods
------------------
sold, plus (b) shipping, handling and service costs paid to AOL or RS and (c)
direct out-of-pocket costs incurred by the Party claiming such Operating
Expenses on a per transaction basis.
Product. Any product, good or service which RS (or others acting on its behalf
-------
or as distributors) offers, sells, provides, distributes or licenses to AOL
Users directly or indirectly through (i) the Co-Branded Sites (including through
any Interactive Site linked thereto), (ii) any other electronic means directed
at AOL Users (e.g., e-mail offers), or (iii) an "offline" means (e.g., toll-free
number) for receiving orders related to specific offers within the Co-Branded
Sites requiring purchasers to reference a specific promotional identifier or
tracking code, including, without limitation, products sold through surcharged
downloads (to the extent expressly permitted hereunder).
Real Estate Screens. The specific screens set forth on Exhibit B on which AOL
-------------------
will place promotions for the Co-Branded Sites.
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RS Commercial Listings Site. The primary RS Interactive Site through which RS
---------------------------
offers a Commercial Listings Service (currently located at
http:▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇).
RS Homebuilder Site. The primary RS Interactive Site through which RS offers
-------------------
new homes (currently located at http:▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇).
RS Home Finance Product Revenues. The aggregate amount received by RS and its
--------------------------------
agents: (a) on the sale, licensing, distribution or provision of any Home
Finance Products on the Co-Branded Sites and any other AOL Exclusive Sites less
(i) any handling, shipping or service charges; (ii) any amounts paid for sales
or use taxes;(iii) any duties, credits or chargebacks for returned or cancelled
goods or services; (iv) fees paid to ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac, Intuit or a third
party processor (whose fees shall not be more than the industry standard) for
the use of mortgage processing related services (except to the extent RS is not
entitled to any such fees), and (v) Operating Expenses, provided however that
such Operating Expenses shall not exceed 15% of the aggregate amounts received
with respect to such Home Finance Products net of (i), (ii) and (iii) above.
RS Interactive Site. Any Interactive Site which is managed, maintained, owned
-------------------
or controlled by RS or its agents.
RS Listings. Any real-estate related listings in a classified directory of core
-----------
real-estate services (e.g., builder, commercial, remodeling and realtor
directories/white pages/yellow pages).
RS Properties. The RS ▇▇▇▇▇▇▇.▇▇▇ Site, the RS Commercial Listings Site, the RS
-------------
Homebuilder Site, the RS Remodeling Site, the RS Vacation Home Site, and such
other sites as the parties mutually agree in writing to consider RS Properties.
RS ▇▇▇▇▇▇▇.▇▇▇ Site. The primary RS Interactive Site through which RS offers a
-------------------
Home Listings Service (currently located at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇.▇▇▇).
RS Remodeling Site. The primary RS Interactive Site through which RS offers
------------------
remodeling information (currently planned to be located at
http:▇▇▇.▇▇▇▇▇▇▇.▇▇▇).
RS Vacation Home Site. The primary RS Interactive Site through which RS offers
---------------------
vacation homes (currently planned to be located at http:▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇).
Sales Revenues. The combination of AOL Gross Sales Revenues and ▇▇ ▇▇▇▇▇ Sales
--------------
Revenues.
Sponsorship Packages. Any Advertisement (other than a Standard Advertisement)
--------------------
which creates a permanent branded presence in an RS screen or area linked to
from a Results Screen (e.g., sponsorship of a screen or area).
Standard Advertisement. Banners, buttons, links or comparable standard online
----------------------
advertising mechanisms, specifically excluding Sponsorship Packages and links
provided by RS to real estate brokers and agents in connection with RS' web
development services.
Transactional Inventory. Any product, good or service, excluding any
-----------------------
Advertisement or RS Listings, which is directly or indirectly offered, sold,
provided, licensed or otherwise distributed through (i) the Co-Branded Sites or
AOL Exclusive Sites (including any Interactive Service linked thereto), (ii) any
other electronic means directed at site users (e.g., e-mail offers) from the Co-
Branded Sites or AOL Exclusive Sites, or (iii) any "offline" means (e.g., toll-
free number) for receiving orders related to specific offers within the Co-
Branded Sites or AOL Exclusive Sites requiring purchasers to reference a
specific promotional identifier or tracking code, including without limitation,
products sold through surcharged downloads.
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EXHIBIT B
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List of Prohibited Advertisers on Co-Branded Sites
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I-1
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* Confidential treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing and
have been separately filed with the Securities and Exchange Commission.
Final Execution Copy
Confidential
EXHIBIT C
List Of Existing Advertisers
----------------------------
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* Confidential treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing and
have been separately filed with the Securities and Exchange Commission.
Final Execution Copy
Confidential
EXHIBIT D
Standard Legal Terms & Conditions
---------------------------------
1. Promotional Materials/Press Releases. Each Party will submit to the
------------------------------------
other Party, for its prior written approval, which will not be unreasonably
withheld or delayed, any marketing, advertising, press releases, and all other
promotional materials related to the Co-Branded Sites and/or referencing the
other Party and/or its trade names, trademarks, and service marks (the
"Materials"); provided, however, that either Party's use of screen shots of the
Co-Branded Sites for promotional purposes will not require the approval of the
other Party so long as America Online(R) is clearly identified as the source of
such screen shots; and provided further, however, that, following the initial
public announcement of the business relationship between the Parties in
accordance with the approval and other requirements contained herein, either
Party's subsequent factual reference to the existence of a business relationship
between the Parties will not require the approval of the other Party. Each
Party will solicit and reasonably consider the views of the other Party in
designing and implementing such Materials. Once approved, the Materials may be
used by a Party and its Affiliates for the purpose of promoting the Co-Branded
Sites and the content contained therein and reused for such purpose until such
approval is withdrawn with reasonable prior notice. In the event such approval
is withdrawn, existing inventories of Materials may be depleted.
Notwithstanding the foregoing, either Party may issue press releases and other
disclosures as required by law or as reasonably advised by legal counsel without
the consent of the other Party and in such event, prompt notice thereof will be
provided to the other Party.
2. License. RS hereby grants AOL a non-exclusive worldwide license to
-------
market, license, distribute, reproduce, display, perform, transmit and promote
the Licensed Content (or any portion thereof) through such areas or features of
the AOL Service, ▇▇▇.▇▇▇, the DCI Service and NetFind as AOL deems appropriate
during the Term of the Agreement. RS acknowledges and agrees that the foregoing
license permits AOL to distribute portions of the Licensed Content in
synchronism or timed relation with visual displays prepared by RS or AOL (e.g.,
as part of an AOL "slideshow"). In addition, AOL Users will have the right to
access and use the Co-Branded Sites.
3. Trademark License. In designing and implementing the Materials and
-----------------
taking other actions necessary to execute the purposes of this Agreement, and
subject to the other provisions contained herein, RS will be entitled to use the
following trade names, trademarks, and service marks of AOL: the "America
Online" brand service, "AOL" service/software and AOL's triangle logo; and AOL
and its Affiliates will be entitled to use the trade names, trademarks, and
service marks of RS for which RS holds all rights necessary for use in
connection with this Agreement (collectively, together with the AOL marks listed
above, the "Marks"); provided that each Party: (i) does not create a unitary
composite ▇▇▇▇ involving a ▇▇▇▇ of the other Party without the prior written
approval of such other Party; and (ii) displays symbols and notices clearly and
sufficiently indicating the trademark status and ownership of the other Party's
Marks in accordance with applicable trademark law and practice. AOL warrants
that neither the AOL Marks nor any AOL-provided Content directly associated the
Co-Branded Sites will infringe on or violate any U.S. copyright, U.S. trademark,
U.S. patent or any other U.S. third party right, including without limitation,
any music performance or other music-related rights.
4. Ownership of Trademarks. Each Party acknowledges the ownership of the
-----------------------
other Party in the Marks of the other Party and agrees that all use of the other
Party's Marks will inure to the benefit, and be on behalf, of the other Party.
Each Party acknowledges that its utilization of the other Party's Marks will not
create in it, nor will it represent it has, any right, title, or interest in or
to such Marks other than the licenses expressly granted herein. Each Party
agrees not to do anything contesting or impairing the trademark rights of the
other Party.
5. Quality Standards. 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. Each Party will comply with all applicable laws, regulations, and
customs and obtain any required government approvals pertaining to use of the
other Party's marks.
6. Infringement Proceedings. Each Party agrees to promptly notify the
------------------------
other Party of any unauthorized use of the other Party's Marks of which it has
actual knowledge. Each Party will have the sole right and discretion to bring
proceedings alleging infringement of its Marks or unfair competition related
thereto; provided, however, that each Party agrees to provide the other Party
with its reasonable cooperation and assistance with respect to any such
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infringement proceedings.
7. Representations and Warranties. Each Party represents and warrants to
------------------------------
the other Party that: (i) such Party has the full corporate right, power and
authority to enter into this Agreement and to perform the acts required of it
hereunder; (ii) the execution of this Agreement by such Party, and the
performance by such Party of its obligations and duties hereunder, do not and
will not violate any agreement to which such Party is a party or by which it is
otherwise bound; (iii) when executed and delivered by such Party, this Agreement
will constitute the legal, valid and binding obligation of such Party,
enforceable against such Party in accordance with its terms; 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 this Agreement.
8. 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 section. Notwithstanding the foregoing, either Party may
issue a press release or other disclosure containing Confidential Information
without the consent of the other Party, to the extent such disclosure is
required by law, rule, regulation or government or court order. In such event,
the disclosing Party will provide at least five (5) business days prior written
notice of such proposed disclosure to the other Party. Further, in the event
such disclosure is required of either Party under the laws, rules or regulations
of the Securities and Exchange Commission or any other applicable governing
body, such Party will (i) redact mutually agreed-upon portions of this Agreement
to the fullest extent permitted under applicable laws, rules and regulations and
(ii) submit a request to such governing body that such portions and other
provisions of this Agreement receive confidential treatment under the laws,
rules and regulations of the Securities and Exchange Commission or otherwise be
held in the strictest confidence to the fullest extent permitted under the laws,
, rules or regulations of any other applicable governing body.
9. Limitation of Liability; Disclaimer; Indemnification.
----------------------------------------------------
9.1. Liability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE
---------
LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CORSEQUENTIAL,
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 RS SITE, THE DCI RS SITE OR THE
CO-BRANDED SITES, 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 SECTION 9.3. EXCEPT AS PROVIDED
IN SECTION 9.3, (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 OBLIGATIORS OWED TO THE OTHER PARTY
HEREUNDER IN THE YEAR IN WHICH LIABILITY ACCRUES; PROVIDED THAT EACH
PARTY WILL REMAIN LIABLE FOR THE AGGREGATE AMOUNT OF ANY PAYMENT
OBLIGATIORS OWED TO THE OTHER PARTY PURSUANT TO THE AGREEMENT.
9.2. No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN
------------------------
THIS AGREEMENT, NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY
SPECIFICALLY DISCLAIMS ANY REPRESENTATIORS OR WARRANTIES, EXPRESS OR
IMPLIED, REGARDING THE AOL NETWORK, THE AOL SERVICE, ▇▇▇.▇▇▇, THE RS
SITE, THE DCI RS SITE OR THE CO-BRANDED SITES, 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 AND
RS SPECIFICALLY DISCLAIM ANY WARRANTY REGARDING THE PROFITABILITY OF
THE RS SITE, THE DCI RS SITE OR THE CO-BRANDED SITES.
9.3. Indemnity. Either Party will defend, indemnify, save and hold
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harmless the other Party and the officers, directors, agents,
Affiliates, distributors,
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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 this Agreement.
9.4. Claims. If a Party entitled to indemnification hereunder (the
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"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. 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.
9.5. Acknowledgment. AOL and RS each acknowledges that the
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provisions of this Agreement were negotiated to reflect an informed,
voluntary allocation between them of all risks (both known and
unknown) associated with the transactions contemplated hereunder. The
limitations and disclaimers related to warranties and liability
contained in this Agreement are intended to limit the circumstances
and extent of liability. The provisions of this Section 9 will be
enforceable independent of and severable from any other enforceable or
unenforceable provision of this Agreement.
9.6. Solicitation of AOL Users. During the term of this Agreement,
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and for the two-year period following the expiration or termination of
this Agreement, neither RS nor its agents will use the AOL Network to
(i) solicit, or participate in the solicitation of AOL Users when that
solicitation is for the benefit of any entity (including RS) which
could reasonably be construed to be or become in competition with AOL
or (ii) promote any services which could reasonably be construed to be
in competition with AOL including, but not limited to, services
available through the Internet. In addition, RS may not send AOL Users
e-mail communications promoting RS' Products through the AOL Network
without a "Prior Business Relationship." For purposes of this
Agreement, a "Prior Business Relationship" will mean that the AOL User
has either (i) engaged in a transaction with RS through the AOL
Network or (ii) voluntarily provided information to RS through a
contest, registration, or other communication, which included notice
to the AOL User that the information provided by the AOL User could
result in an e-mail being sent to that AOL User by RS or its agents. A
Prior Business Relationship does not exist by virtue of an AOL User's
visit to the Co-Branded Sites or any RS Interactive Site (absent the
elements above). More generally, RS will be subject to any standard
policies regarding e-mail distribution through the AOL Network which
AOL may implement.
10. Collection of User Information. RS is prohibited from collecting AOL
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User screennames from public or private areas within the AOL Service or ▇▇▇.▇▇▇,
except as specifically provided below. RS will ensure that any survey,
questionnaire or other means of collecting User Information including, without
limitation, requests directed to specific AOL User screennames or email
addresses and automated methods of collecting screennames (an "Information
Request") complies with (i) all applicable laws and regulations, (ii) AOL's
applicable Terms of Service, and (iii) any privacy policies which have been
issued by AOL in writing during the term (or, in the case of the Co-Branded
Sites, RS' standard privacy policies, to the extent such policies are
prominently published on the site and provide adequate notice and disclosure to
users regarding RS' collection, use and disclosure of any user information)
(collectively, the "Applicable Privacy Policies"). Each Information Request
will clearly and conspicuously specify to the AOL Users at issue the purpose for
which User Information collected through the Information Request will be used
(the "Specified Purpose").
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11. Use of User Information. RS will restrict use of the User Information
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collected through an Information Request to the Specified Purpose. In no event
will RS (i) provide User Information to any third party (except to the extent
specifically (a) permitted under the AOL Privacy Policies or (b) authorized by
the members in question), (ii) rent, sell or barter User Information, (iii)
identify, promote or otherwise disclose such User Information in a manner that
identifies AOL Users as end-users of the AOL Service, ▇▇▇.▇▇▇ or the AOL Network
or (iv) otherwise use any User Information in contravention of the Section 10
above. Notwithstanding the foregoing, in the case of AOL Members who purchase
Products from RS, RS will be entitled to use User Information from such AOL
Members as part of RS' aggregate list of Customers; provided that RS' use does
not in any way identify, promote or otherwise disclose such User Information in
a manner that identifies such AOL Members as end-users of the AOL Service,
▇▇▇.▇▇▇ or the AOL Network. In addition, RS will not use any User Information
for any purpose (including any Specified Purpose) not directly related to the
business purpose of the Co-Branded Sites.
12. Excuse. Neither Party will be liable for, or be considered in breach
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of or default under this Agreement on account of, any delay or failure to
perform as required by this Agreement as a result of any causes or conditions
which are beyond such Party's reasonable control and which such Party is unable
to overcome by the exercise of reasonable diligence.
13. Independent Contractors. The Parties to this Agreement are
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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. This Agreement will not be
interpreted or construed to create an association, agency, joint venture or
partnership between the Parties or to impose any liability attributable to such
a relationship upon either Party.
14. Notice. Any notice, approval, request, authorization, direction or
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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 the AOL Network (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. 703-
▇▇▇-▇▇▇▇) 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 RS, except as otherwise specified herein, the notice address will be the
address for RS 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 e-mail address, to be as
reasonably identified by AOL.
15. Launch Dates. In the event that any terms contained herein relate to
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or depend on the commercial launch date of any properties 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.
16. No Waiver. The failure of either Party to insist upon or enforce
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strict performance by the other Party of any provision of this Agreement or to
exercise any right under this 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.
17. Return of Information. Upon the expiration or termination of this
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Agreement, each Party will, upon the written request of the other Party, return
or destroy (at the option of the Party receiving the request) all confidential
information, documents, manuals and other materials specified the other Party.
18. Survival. Sections 2.5, 4, 5 and 6 of the body of the Agreement and
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Sections 8 through 28 of this Exhibit, will survive the completion, expiration,
termination or cancellation of this Agreement.
19. Entire Agreement. This Agreement sets forth the entire agreement and
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supersedes any and all prior agreements of the Parties with respect to the
transactions set forth herein. Neither Party will be bound by, and each Party
specifically objects to, any term, condition or other provision which is
different from or in addition to the provisions of this Agreement (whether or
not it would materially alter this Agreement) and which is proffered by the
other Party in any correspondence or other document, unless the Party to be
bound thereby specifically agrees to such provision in writing.
20. Amendment. No change, amendment or modification of any provision of
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this Agreement will be valid unless set
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forth in a written instrument signed by the Party subject to enforcement of such
amendment, and in the case of AOL, by an executive of at least the same standing
to the executive who signed the Agreement.
21. Further Assurances. Each Party will take such action (including, but
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not limited to, the execution, acknowledgment and delivery of documents) as may
reasonably be requested by any other Party for the implementation or continuing
performance of this Agreement.
22. Assignment. RS will not assign this Agreement or any right, interest
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or benefit under this Agreement without the prior written consent of AOL.
Assumption of the Agreement by any successor to RS (including, without
limitation, by way of merger or consolidation) will be subject to AOL's prior
written approval. Subject to the foregoing, this Agreement will be fully
binding upon, inure to the benefit of and be enforceable by the Parties hereto
and their respective successors and assigns.
23. Construction; Severability. In the event that any provision of this
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Agreement conflicts with the law under which this Agreement is to be construed
or if any such provision is held invalid by a court with jurisdiction over the
Parties to this Agreement, (i) such provision will be deemed to be restated to
reflect as nearly as possible the original intentions of the Parties in
accordance with applicable law, and (ii) the remaining terms, provisions,
covenants and restrictions of this Agreement will remain in full force and
effect.
24. Remedies. Except where otherwise specified, the rights and remedies
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granted to a Party under this Agreement are cumulative and in addition to, and
not in lieu of, any other rights or remedies which the Party may possess at law
or in equity; provided that, in connection with any dispute hereunder, RS will
be not entitled to offset any amounts that it claims to be due and payable from
AOL against amounts otherwise payable by RS to AOL.
25. Applicable Law. Except as otherwise expressly provided herein, this
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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.
26. Export Controls. Both Parties will adhere to all applicable laws,
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regulations and rules relating to the export of technical data and will not
export or re-export any technical data, any products received from the other
Party or the direct product of such technical data to any proscribed country
listed in such applicable laws, regulations and rules unless properly
authorized.
27. Headings. The captions and headings used in this Agreement are
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inserted for convenience only and will not affect the meaning or interpretation
of this Agreement.
28. Counterparts. This Agreement may be executed in counterparts, each of
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which will be deemed an original and all of which together will constitute one
and the same document.
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