Exhibit 10.3
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN PORTIONS OF THIS DOCUMENT.
CONFIDENTIAL PORTIONS HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
CONFIDENTIAL
INTERACTIVE SERVICES AGREEMENT
This agreement (the "Agreement"), effective as of April 16th, 1998 (the
"Effective Date"), is made and entered into by and between America Online, Inc.
("AOL"), a Delaware corporation, with its principal offices at ▇▇▇▇▇ ▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇▇▇▇▇▇.▇▇▇, L.L.C. ("Interactive Content
Provider" or "ICP"), a limited liability corporation, with its principal offices
at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (each a "Party" and collectively the
"Parties").
INTRODUCTION
AOL and ICP each desires that AOL provide access to the ICP Internet
Site (as defined below) through the AOL Network (as defined below), subject to
the terms and conditions set forth in this Agreement. Defined terms used but not
defined in the body of this Agreement or in Exhibit C shall be as defined on
Exhibit B attached hereto.
TERMS
1. DISTRIBUTION; PROGRAMMING
1.1 Anchor Tenancy. Beginning on the Launch Date, ICP shall
receive anchor tenant distribution within the Personal Finance
channel (or any specific successor thereof) offered on the AOL
Service, as follows: AOL shall (a) continuously and
prominently place an agreed-upon ICP icon, symbol, name, logo
or banner (each, an "Anchor Tenant Button") on the "Active
Investor" screen (or any specific successor thereof), on which
ICP's Anchor Tenant Button shall be ***** Anchor Tenant
Buttons, and the "Investing Forums" screen (or any specific
successor thereof), on which ICP's Anchor Tenant Button shall
be ***** (based on relevant factors, e.g. ***** considered as
a whole and not individually) ***** any other anchor tenant's
***** which is continuously displayed on such screen. Such
Anchor Tenant Buttons shall each, through a uniform resource
locator ("URL"), link to the Welcome Mat on the World Wide
Web, or to some other mutually agreed-upon area(s) within the
AOL Network
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***** Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
(i.e. in "Rainman"), (b) provide ICP with the keywords
"TheStreet" "▇▇▇▇▇▇▇▇▇.▇▇▇" and "TSC" which shall link to the
Welcome Mat, and (c) list the ICP Internet Site in AOL's
"Directory of Services" "Keywords" and "Find" features. Except
to the extent expressly described herein, the exact form,
placement and nature of the Anchor Tenant Button shall be
determined by AOL in it's ***** editorial discretion.
1.1.1 AOL further agrees to ***** communicate with ICP
during the Term regarding AOL's editorial needs *****
of integrating ICP's Content into the Personal
Finance channel. Such communication may result in the
promotion of ICP from the main screen of the Personal
Finance channel. Any such promotion shall be at the
sole discretion of AOL.
1.2 Content. The ICP Internet Site shall consist of the Licensed
Content described on Exhibit A hereto. In addition, the
Original Content described on Exhibit A shall be published
within the AOL Network (i.e. in Rainman, AOL's proprietary
publishing tool). ICP shall not authorize or actively
facilitate any third party to distribute any other Content of
ICP through the AOL Network absent AOL's prior written
approval; provided, however, that AOL acknowledges and
understands that ***** without ICP's ***** and AOL agrees that
ICP ***** as a result thereof. The inclusion of any additional
Content for distribution through the AOL Network (including,
without limitation, any features, functionality or technology)
not expressly described on Exhibit A shall be subject to AOL's
prior written approval.
1.3 License. ICP hereby grants AOL a worldwide license to use,
market, store, distribute, display, communicate, perform,
transmit, and promote the ICP Internet Site and the Licensed
Content (or any portion thereof), solely for the personal use
of its AOL Members, through the AOL Network as AOL may
determine in its sole discretion, including without limitation
the right to integrate Content from the ICP Internet Site by
linking to specific areas on the ICP Internet Site, provided
that the presentation of any such Content on the AOL Network
shall conform with the specifications set forth on Exhibit D;
provided, however, *****.
1.4 Management. ICP shall, design, create, edit, manage, update,
and maintain the ICP Internet Site and the Licensed Content or
arrange for same on its behalf. Except as specifically
provided for herein, AOL shall have no obligations of any kind
with respect to the ICP Internet Site. ICP shall be
responsible for any hosting or communication costs associated
with the ICP Internet Site (including, without limitation, the
costs associated with (i) any agreed-upon direct connections
between the AOL
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***** Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
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Network and the ICP Internet Site or (ii) a mirrored version
of the ICP Internet Site, provided at the discretion of the
ICP. *****.
1.5 Carriage Fee. ICP shall pay AOL a one-time fee of ***** which
shall be due no later than thirty (30) days after the
Effective Date.
1.6 Impressions Guarantee. AOL shall provide ICP with at least
***** Impressions (as defined below) from ICP's presence on
the AOL Network (the "Impressions Guarantee"). For the
purposes of this Agreement ***** ICP's presence on an AOL
screen shall conform to the specifications set forth on
Exhibit D (each, an "ICP Presence"), provided that only
screens that contain a link to the ICP Internet Site or a
Welcome Mat (as defined herein) will count against the
Impressions Guarantee. In the event that the Impressions
Guarantee is not met during the Term, at AOL's option either
(a) the Term shall be extended for up to ***** months without
additional carriage fees payable by ICP *****, or (b) AOL
shall provide ICP with the remain ing Impressions in the form
of advertising space within the AOL Network of comparable
value ***** to the undelivered Impressions.
2. PROMOTION
2.1 Cooperation. Each Party shall cooperate with and reasonably
assist the other Party in supplying material for marketing and
promotional activities.
2.2 Interactive Site. During the Term, ICP shall include within
each ICP Interactive Site (a) a continuous ***** promotional
button/link for AOL appearing on the first screen of the ICP
Interactive Site, (b) a prominent "Try AOL" feature where
users can obtain promotional information about the AOL Network
and/or any ***** products and services available through the
AOL Network and, at AOL's option, download or order AOL's
then-current version of client software for the America
Online(Registered) brand service or other AOL products, such
as AOL's "Instant Messenger(Registered)"; (c) *****
promotion for the keywords associated with ICP's Internet
Site; and (d)*****.
2.3 Other Media. ICP shall ***** prominently and regularly promote
AOL and the ICP Internet Site's availability through the AOL
Service in publications, programs, features or other forms of
media over which ICP exercises *****.
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***** Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
3
2.4 Keyword Promotion. In any instances when ICP makes promotional
reference to an ICP Interactive Site, including any listings
of the applicable "URL(s)" for such web site(s) (each a "Web
Reference"), *****.
2.5 Preferred Access Provider.
2.5.1 *****
3. REPORTING
3.1 Usage and Other Data. AOL shall make available to ICP a
monthly report specifying for the prior month aggregate usage
and Impressions with respect to ICP's presence on the AOL
Network. ICP will supply AOL with monthly reports which
reflect total daily Impressions by AOL Members to the ICP
Internet Site during the prior month and the number of and
dollar value associated with the transactions involving AOL
Members at the ICP Internet Site during the period in
question. ICP shall also provide AOL with "click-through" data
with respect to the promotions specified in Section 2.
3.2 Promotional Commitments. ICP shall provide to AOL a monthly
report document ing ICP's compliance with any promotional
commitments undertaken pursuant to this Agreement which report
shall be in the form attached as Exhibit F hereto.
3.3 Payment Schedule. Except as otherwise specified herein, each
Party agrees to pay the other Party all amounts received and
owed to such other Party as described herein on a quarterly
basis within thirty (30) days of the end of the quarter in
which such amounts were collected by such Party. The first
quarter for which payment is to be made shall (i) begin on the
first day of the month following the month of full execution
of Agreement and (ii) include the portion of the month of
execution following the Effective Date (unless the Agreement
was executed on the first day of a month, in which case the
quarter shall be deemed to begin on the first day of such
month).
4. ADVERTISING AND MERCHANDISING
4.1 Advertising Sales. Except as may be specifically provided
below, AOL owns all right, title and interest in and to the
advertising and promotional spaces within the AOL Network
(including, without limitation, advertising and promotional
spaces on
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***** Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
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any AOL forms or pages preceding or framing the ICP Internet
Site). The specific advertising inventory within any such AOL
forms or pages shall be as reasonably determined by AOL.
4.2 Live Event Advertisements. With respect to the live event
programming provided to AOL hereunder and specified on Exhibit
A.2 (the "Live Event Programming"), AOL shall have the
exclusive right to license or sell promotions, advertisements,
links, pointers or similar services or rights in or through
the area for any Live Event Programming ("Live Event
Advertisements"). AOL shall pay ICP ***** of the Advertising
Revenues generated by AOL or its agents with respect to Live
Event Advertisements.
4.3 Original Content Advertisements. With respect to the original
content provided to AOL hereunder and specified on Exhibit A,
(the "Original Content"), AOL hereby grants ICP the right to
license or sell promotions, advertisements, links, pointers or
similar services or rights in or through the area for any
Original Content including ***** associated with the ICP
Internet Site ("Original Content Advertisements" or "AOL
Advertisements"), subject to (i) each Original Content
Advertisement being in compliance with AOL's advertising
policies referred to herein and (ii) *****. ICP shall pay AOL
***** of the Advertising Revenues generated by ICP or its
agents with respect to Original Content Advertisements.
4.4 Advertising Policies. Any AOL Advertisements sold by ICP or
its agents shall be subject to AOL's then-standard advertising
policies, a copy of which shall be furnished to ICP *****
during the Term. In connection with the sale by ICP of any AOL
Advertisement, ICP shall, in each instance, provide AOL with a
completed standard AOL advertising registration form relating
to such AOL Advertisement. ICP shall take all steps necessary
to ensure that any AOL Advertisement sold by ICP complies with
all applicable federal, state and local laws and regulations.
To the extent ICP sells an AOL Advertisement as part of an
advertising package including multiple placement locations,
ICP shall allocate the payment for such advertising package
between or among such locations in an equitable fashion,
*****.
4.5 Interactive Commerce. Any merchandising on the ICP Internet
Site shall be subject to (i) the then-current requirements of
AOL's merchant certification program and (ii) ICP implementing
sufficient procedures to protect the security of all
merchandising on the site (i.e., ICP shall as of the Effective
Date use 40-bit SSL technology and, if requested by AOL,
128-bit SSL).
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***** Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
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4.5.1 Subscriptions. AOL Members shall receive a *****
discount on any subscriptions to the ICP Internet
Site during the term of this Agreement.
5. CUSTOMIZED LINKED INTERACTIVE SITE
5.1 Performance.
5.1.1 Generally. ICP shall ***** optimize the ICP Internet
Site according to AOL specifications and guidelines
(which may currently be found at keyword:
"Webmaster", and/or at *****) with the objective of
ensuring that (i) the functionality and features
within the ICP Internet Site are optimized for the
client software then in use by a majority of AOL
Members as notified to ICP by AOL and (ii) the forms
used in the ICP Internet Site are designed and
populated in a manner intended to minimize delays
when AOL Members attempt to access such forms. ICP
will use reasonable commercial efforts to ensure that
the performance and availability of the ICP Internet
Site (a) is monitored on a continuous, 24/7 basis and
(b) remains competitive in all material respects with
the performance and availability of other similar
sites based on similar form technology. It shall be
the responsibility of AOL to inform ICP of the
specific AOL client software version then in use by a
majority of AOL Members if and when it is determined,
in AOL's reasonable discretion, that the ICP Internet
Site is not optimized for such client software.
5.1.2 Specific.
(a) ICP shall design the ICP Internet Site to support
the Windows version of the Microsoft Internet
Explorer 3.0 browser, and make commercially
reasonable efforts to support all other AOL browsers
listed at: *****
(b) ICP shall configure the server from which it
serves the ICP Internet Site to examine the HTTP
User-Agent field in order to identify the AOL
User-Agents listed at: ***** (the "AOL User-Agents").
(c) ICP shall design its web site to support HTTP 1.0
or later protocol as defined in RFC 1945 (available
at ▇▇▇▇://▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇/▇▇▇▇▇▇▇.▇▇▇▇) and to
adhere to AOL's parameters for refreshing cached
information listed at *****.
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***** Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
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(d) AOL reserves the right to review the ICP Internet
Site and/or have its technical personnel meet with
ICP technical personnel with respect to the ICP
Internet Site with the objective of ensuring that
such site is compatible with AOL's then-available
client and host software and the AOL Network.
5.2 Customization. ICP shall customize the ICP Internet Site for
AOL Members as follows:
(a) upon AOL's request create a customized,
co-branded home page for the AOL audience for each
area on the ICP Internet Site linked to and/or from
the AOL Network on a continuous basis (each a
"Welcome Mat"), which Welcome Mat(s) shall be subject
to AOL approval, not to be unreasonably withheld;
(b) ensure that AOL Members linking to the ICP
Internet Site do not receive advertisements,
promotions or links for any entity which AOL has
notified ICP, or shall subsequently notify ICP in
writing, is in competition with AOL or which AOL has
notified ICP, or shall subsequently notify ICP in
writing, is otherwise in violation of AOL's
then-standard advertising policies or exclusivities;
and
(c) provide continuous navigational ability for AOL
Members to return to an agreed-upon point on the AOL
service (for which AOL shall supply the proper
address) from the ICP Internet Site (e.g., the point
on the AOL service from which the ICP Internet Site
is linked), which, at AOL's option, may be satisfied
through the use of a hybrid browser format.
5.3 Links on ICP Internet Site. The Parties will work together on
mutually acceptable links (including links back to AOL) within
the ICP Internet Site in order to attempt to create a robust
and engaging AOL member experience. ICP shall take reasonable
efforts to encourage that AOL traffic is generally either kept
within the ICP Internet Site or channeled back into the AOL
Network. To the extent that AOL notifies ICP in writing that,
in AOL's reasonable judgment, links from such site cause an
excessive amount of AOL traffic to be diverted outside of
such site and the AOL Network in a manner that has a
detrimental effect on the traffic flow of the AOL audience,
then ICP shall promptly take reasonable steps to attempt to
reduce the number of links out of such site(s).
5.4 Hosting Capacity. ICP will provide all computer servers,
routers, switches and associated hardware in an amount
reasonably necessary to meet anticipated traffic demands,
adequate power supply (including generator back-up) and HVAC,
adequate insurance, adequate service contracts and all
necessary equipment racks, floor
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space, network cabling and power distribution to support the
ICP Internet Site. AOL shall provide ICP with reasonable, best
available estimates of anticipated traffic demands associated
with the AOL Network and ICP's performance hereunder, which
ICP will rely upon in connection with the foregoing
obligation.
6. TERM AND TERMINATION.
6.1 Term. Unless earlier terminated as set forth herein, the
initial term of this Agreement shall be one (1) year from the
Effective Date. Upon termination of this Agreement, AOL shall
have the option, for a period equal to the initial term, to
use one or more ICP keywords and/or text-based links from the
AOL Network to the ICP Internet Site. This Agreement may be
extended by mutual written agreement of the Parties.
6.2 Termination for Breach. Either Party may terminate this
Agreement at any time in the event of a material breach by the
other Party which remains uncured after thirty (30) days'
written notice thereof.
6.3 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.
7. TERMS AND CONDITIONS. To the extent not otherwise inconsistent with the
above terms and conditions of this Agreement the legal terms and
conditions set forth on Exhibit C attached hereto are hereby made a
part of this Agreement.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
as of the Effective Date.
AMERICA ONLINE, INC. ▇▇▇▇▇▇▇▇▇.▇▇▇, L.L.C.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------- ------------------------------
Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Print Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------ -----------------------
Title: President, AOL Interactive Services Title: Chief Operating Officer
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Date: 4/16/98 Date: April 16, 1998
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Tax ID/EIN#:
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EXHIBIT A
Description of Content
Content appearing at URL: ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇, and original content
appearing on AOL as follows:
1. Overview/Purpose of Site:
"▇▇▇▇▇▇▇▇▇.▇▇▇ is an online financial publication dedicated to
providing investors with timely, insightful and irreverent
reporting" ...quote from ▇▇▇▇▇▇▇▇▇.▇▇▇ website.
2. Categories of Programming:
- Original Content, to be published in Rainman:
o ***** Wrong! column provided on a *****
o ***** ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ columns *****
o ***** Kansas columns *****
o ***** Options column *****
o ***** Mutual fund columns *****
o AOL version of daily TSC bulletin
o Archives
- Live Event Programming, to be published in Rainman:
o Two live chats per month (one with ▇▇▇ ▇▇▇▇▇▇ and one
with ▇▇▇▇ ▇▇▇▇▇▇▇▇▇)
o ***** auditorium with ▇▇▇ ▇▇▇▇▇: to start with *****
and gradually move to ***** as we get additional
staff in place.
o Live Event Transcripts and Archives of Transcripts
3. Links:
▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇
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***** Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
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EXHIBIT B -- DEFINITIONS
DEFINITIONS. The following definitions shall apply to this Agreement:
Advertising Revenues. Aggregate amounts collected plus the fair market value of
any other compensation received (such as barter advertising) by a party to this
Agreement or its agents, as the case may be, arising from the license or sale of
Advertisements, less applicable Advertising Sales Commissions; provided that, in
order to ensure that ***** receives fair value in connection with its
Advertisements, ***** shall be deemed to have received no less than the
Advertising Minimum in instances when ***** makes an Advertisement available to
a third party at a cost below the Advertising Minimum.
*****
Advertising Sales Commission. In the case of an AOL Advertisement, (i) actual
amounts paid as commission to third party agencies in connection with sale of
the Advertisement or (ii) *****, in the event the Party has sold the AOL
Advertisement directly and will not be deducting any third party agency
commissions.
AOL Advertisements. In the case of AOL, exclusive AOL Network and Live Event
Advertisements and in the case of ICP, exclusive Original Content
Advertisements.
AOL Service. The narrow-band U.S. version of the America Online(R) brand
service, specifically excluding (a) ▇▇▇.▇▇▇ or any other AOL Interactive Site,
(b) the international versions of an America Online service (e.g., AOL Japan),
(c) ***** "AOL NetFind(Trademark)," "AOL Instant Messenger" or any similar
independent AOL product or service which may be offered by, through or with the
U.S. version of the America Online(Registered) brand service, (d) any
programming or content area offered by or through the U.S. version of the
America Online(Registered) brand service over which AOL does not exercise
substantial operational control (including, without limitation, Content areas
controlled by ***** (e.g., *****), Content areas controlled by other information
providers and member-created Content areas), (e) any yellow pages, white pages,
classifieds or other search, directory or review services or Content offered by
or through the U.S. version of the America Online(Registered) brand service, (f)
any property, feature, product or service which AOL or its affiliates may
acquire subsequent to the Effective Date 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.
Affiliate. Any agent, distributor or franchisee, or an entity
in which a party holds at least a ***** equity interest.
Look and Feel. The distinctive and particular elements of graphics, design,
organization, presentation, layout, user interface, navigation, trade dress and
stylistic convention (including the digital implementations thereof) and the
total appearance and impression substantially formed by the combination,
coordination and interaction of these elements.
AOL Member(s). Authorized users of the AOL Network, including any sub-accounts
using the AOL Network under an authorized master account.
AOL Network. (i) The AOL Service and (ii) any other product or service owned,
operated, distributed or autho rized to be distributed by or through AOL or its
Affiliates worldwide through which such party elects to offer the ICP Internet
Site (which may include, without limitation, AOL-related Internet sites,
"offline" information browsing products, international versions of the AOL brand
service, or Compuserve).
Confidential Information. Any information relating to, available to or disclosed
in the course of the Agreement, which is labeled "Confidential", or should be
reasonably understood to be, confidential or proprietary to the disclos-
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***** Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
11
ing Party, including, but not limited to, the material terms of this Agreement,
information about AOL Members or ICP Members or subscribers, technical processes
and formulas, source codes, product designs, sales, cost and other unpublished
financial information, product and business plans, projections and marketing
data. "Confi dential Information" shall not include information (a) already
lawfully known to or independently developed by the receiving Party free of any
restriction, (b) disclosed in published materials through no wrongful act or
breach of this Agreement, (c) generally known to the public, (d) lawfully
obtained from any third party without restriction or (e) required to be
disclosed by law.
Content. Text, images, video, audio (including, without limitation, music used
in time relation with text, images, or video), and other data, products,
services, advertisements, promotions, links, pointers, technology and software.
ICP Interactive Site. Any interactive site or area which is managed, maintained
or owned by ICP or its agents or to which ICP provides and/or licenses
information, content or other materials, including, by way of example and
without Stations (i) an ICP 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 proposed
"Active Desktop."
ICP Internet Site. The Internet site and Content, cur rently located at
URL:▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇, which is managed, maintained or owned by ICP or
its agents or to which ICP licenses information, content or other materials.
Impression. User exposure to the page containing the applicable Promotion, as
such exposure may be reasonably determined and measured by the reporting Party
in accordance with its standard methodologies and protocols which are
reasonably measurable.
Launch Date. The later of (i) the Effective Date, or (ii) one week after the ICP
Internet Site has been approved by the web operations division of AOL, which
approval shall not be unreasonably withheld.
Licensed Content. All Content provided by ICP or its agents through the AOL
Network in accordance with the terms of this Agreement.
Term. The period beginning on the Effective Date and ending upon the expiration
or earlier termination of the Agreement.
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EXHIBIT C -- STANDARD LEGAL TERMS AND CONDITIONS
I. AOL NETWORK
Content. ICP represents and warrants that all Licensed Content (i) does and will
conform to AOL's applicable Terms of Service, the terms of this Agreement and
any other standard, written AOL policy ***** (ii) ***** does not and will not
infringe on or violate any copyright, trademark, U.S. patent or any other third
party right, including without limitation, any music performance or other music
related rights, and (iii) does not and will not contain any Content which
violates any applicable law or regulation (collectively, the "Rules"). In the
event that AOL notifies ICP in writing that any such Content, as reasonably
determined by AOL, does not comply or adhere to the Rules, then ICP shall use
all reasonable commercial and technically feasible efforts to block access by
AOL Members to such Content. In the event that ICP cannot do so, then ICP shall
provide AOL prompt written notice of such fact. AOL may then at its option,
either (i) restrict access from the AOL Network to the Content in question using
technology available to AOL or (ii) in the event access cannot be restricted
request ICP to remove any such Content until such time as the Content in
question is no longer displayed. ICP will cooperate with AOL's reason able
requests to the extent AOL elects to implement any such access restrictions.
Compliance with AOL Policies. Any demands by ***** upon ***** for compliance
with the Rules, as stated above, shall be subject to one of the following: (i)
***** is not in compliance with the Rules, together with delivery of a ***** of
such then-standard applicable ***** Policy or Rule to *****, or (ii) the mutual
agreement of the Parties. Any written communication from ***** to ***** which
states an ***** Policy or Rule, whether via e-mail, fax, or hard-copy delivery,
shall be considered a ***** for the purposes of the Agreement.
Changes to AOL Service. AOL reserves the right to redesign or modify the
organization, structure, "look and feel," navigation and other elements of the
AOL Service. If AOL implements changes and modifications to the screens
associated with the Licensed Content (including, without limitation, as
currently specified in Exhibit A) in a manner that substantially modifies the
nature of the placements for ICP described in Section 1.1 in an adverse fashion,
AOL will work with ICP in good faith to provide ICP with a comparable package of
placements which are reasonably satisfactory to ICP and which comes closest to
the original intention of the parties, consistent with the provisions of this
Agreement.
Compliance with Laws/Contests. ***** shall take all steps necessary to ensure
that its activities and performance under this Agreement including any contest,
sweepstakes or similar promotion conducted or promoted through the ICP Internet
Site (a "Contest") complies with all applicable federal, state and local laws
and regulations. ICP shall provide AOL with (i) at least thirty (30) days' prior
written notice of any Contest and (ii) upon AOL's request an opinion from ICP's
counsel confirming that the Contest complies with all applicable federal, state
and local laws and regulations.
AOL Look and Feel. ICP acknowledges and agrees that AOL shall own all right,
title and interest in and to the AOL Look and Feel. In addition, AOL shall
retain editorial control over the portions of the AOL pages and forms which
frame the ICP Internet Site (the "AOL Frames"). AOL may, at its discretion,
incorporate navigational icons, links and pointers or other Content into such
AOL Frames; provided, however, that AOL may not alter, modify, substantively
change or otherwise restructure or revise the Licensed Content, and AOL shall
indemnify and hold ICP harmless from and against any and all liabilities,
losses, damages, costs and expenses (including reasonable attorneys' fees)
associated with any claim or action brought by a third party as a result of AOL
in this regard. Notwith standing the foregoing, AOL shall be entitled to extract
portions of the Original Content and Live Event Program ming, with attribution
to ICP, provided that such extraction does not substantively alter the meaning
of same.
Operations. AOL shall be entitled to request ***** changes, with associate
documentation, to the ICP Internet Site to the extent such site will in AOL's
good faith judgment adversely affect operations of the AOL Network and ICP shall
***** effect such changes.
----------------------
***** Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
13
Classifieds. ICP shall not implement or promote any classifieds listing features
through the Welcome Mat(s) without AOL's prior written approval. Such approval
may be conditioned upon, among other things, ICP's conformance with any
then-applicable servicewide technical or other standards related to online
classifieds.
Duty to Inform. Both parties shall promptly inform the other of any claim,
demand or liability of or against one party and/or its Affiliates by any third
party, which may have an adverse effect on the other party.
Response to Questions/Comments; Customer Service. ICP shall respond promptly and
professionally to questions, comments, complaints and other reasonable requests
regarding the ICP Internet Site by AOL Members or on request by AOL, and shall
cooperate and assist AOL in promptly answering the same.
Statements through AOL Network. ICP shall not make, publish, or otherwise
communicate through the AOL Network any deleterious remarks concerning AOL or
its Affiliates, directors, officers, employees, or agents (including, without
limitation, AOL's business projects, business capabilities, performance of
duties and services, or ▇▇▇▇▇ cial position) which remarks are based on the
relationship established by this Agreement or information exchanged hereunder.
This section is not intended to limit good faith editorial statements made by
ICP based upon publicly available information, or information developed by ICP
independent of its relationship with AOL, its employees and agents.
Production Work. In the event that ICP requests any AOL production assistance,
ICP shall work with AOL to develop detailed production plans for the requested
production assistance (the "Production Plan"). Following receipt of the final
Production Plan, AOL shall notify ICP of (i) AOL's availability to perform the
requested production work, (ii) the proposed fee or fee structure for the
requested production and maintenance work and (iii) the estimated development
schedule for such work. To the extent the Parties reach agreement regarding
implementation of agreed-upon Production Plan, such agreement shall be
reflected in a separate work order signed by both Parties. To the extent ICP
elects to retain a third party provider to perform any such production work,
work produced by such third party provider must generally conform to AOL's
production standards & practices (a copy of which will be supplied by AOL to ICP
upon request, or made available through an AOL keyword). The specific production
resources which AOL allocates to any production work to be performed on behalf
of ICP shall be as determined by AOL in its sole discretion, acting reason ably
and in good faith.
Training and Support. AOL shall make available to ICP standard AOL training and
support programs necessary to produce any AOL areas hereunder. ICP can select
its training and support program from the options then offered by AOL. ICP shall
be responsible to pay the fees associ ated with its chosen training and support
package. In addition, ICP will pay travel and lodging costs associated with its
participation in any AOL training programs (including AOL's travel and lodging
costs when training is conducted at ICP's offices).
Launch Date. In the event that any terms contained herein relate to or depend on
the launch date of the online area or other property contemplated by this
Agreement which launch date is later than the Effective 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 shall be as reasonably
determined by AOL based on the information available to AOL.
Keywords. Any "keywords" on the AOL Service to be granted to ICP by AOL
hereunder shall be (i) subject to availability and (ii) limited to ICP's company
name, service marks, trademarks, trade names and/or brand names. AOL reserves
the right to revoke at any time ICP's use of any "keywords" which are not
registered trademarks of ICP.
II. TRADEMARKS
Trademark License. In designing and implementing any marketing, advertising,
press releases or other promotional materials related to this Agreement and/or
referencing the other Party and/or its trade names, trademarks and service marks
(the "Promotional Materials") and subject to the other provisions contained
herein, ICP shall be entitled to use the following trade names, trademarks and
service marks of AOL: the "America Online(R)" brand service, "AOL(TM)"
service/software and AOL's triangle logo; and AOL and its Affiliates shall be
entitled to use the trade names, trademarks and service marks of ICP
(collectively, together with the AOL marks listed above, the "Marks") solely in
connection with the permitted Promotion and Licensed Content hereunder; provided
that each Party: (i) does not create a unitary composite ▇▇▇▇ involving a ▇▇▇▇
14
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.
Rights. Each Party acknowledges that its utilization of the other Party's Marks
will not create in it nor will it represent it has, any right, title or interest
in or to such Marks other than the licenses expressly granted herein. Each Party
agrees not to do anything contesting or impairing the trademark rights of the
other Party.
Quality Standards. Each Party agrees that the nature and quality of its products
and services supplied in connection with the other Party's Marks shall conform
to quality standards communicated in writing by the other Party for use of its
trademarks. Each Party agrees to supply the other Party, upon request, with a
reasonable number of samples of any Materials publicly disseminated by such
Party which utilize the other Party's Marks. Each Party shall comply with all
applicable laws, regulations and customs and obtain any required government
approvals pertaining to use of the other Party's Marks.
Promotional Materials/Press Releases. Each Party will submit to the other Party,
for its prior written approval, which shall not be unreasonably withheld or
delayed, any Promotional Materials; provided, however, that after 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 AOL and
ICP, including, without limitation, the availability of the Licensed Content
through the AOL Network, or use of screen shots relating to the distribution
under this Agreement (so long as the AOL Network is clearly identified as the
source of such screen shots) for promotional purposes shall not require the
approval of the other Party. Once approved, the Promotional Materials may be
used by a Party and its affiliates for the purpose of promoting the distribution
of the Licensed Content through the AOL Network and reused for such purpose
until such approval is withdrawn with reasonable prior notice. In the event such
approval is withdrawn, existing inventories of Promotional Materials may be
depleted, but not to exceed 30 days.
Live Event Transcripts. ICP may make available on ICP's Internet Site any
transcripts from an ICP/AOL Live Event ("Live Event Transcripts"), without the
prior approval of AOL, so long as the Live Event Transcripts are clearly and
conspicuously identified as having originated on the AOL Service, together with
appropriate attribution and/or references to ICP.
Infringement Proceedings. Each Party agrees to promptly notify the other Party
of any unauthorized use of the other Party's Marks of which it has actual
knowledge. Each Party shall have the sole right and discretion to bring
proceedings alleging infringement of its Marks or unfair competition related
thereto; provided, however, that each Party agrees to provide the other Party,
at such other Party's expense, with its reasonable cooperation and assistance
with respect to any such infringement proceedings.
III. REPRESENTATIONS AND WARRANTIES
Each Party represents and warrants to the other Party that: (i) such Party has
the full corporate right, power and authority to enter into this Agreement, to
grant the licenses granted hereunder and to perform the acts required of it
hereunder; (ii) the execution of this Agreement by such Party, and the
performance by such Party of its obligations and duties hereunder, do not and
will not violate any agreement to which such Party is a party or by which it is
otherwise bound; (iii) when executed and delivered by such Party, this Agreement
will constitute the legal, valid and binding obligation of such Party,
enforceable against such Party in accordance with its terms; (iv) to the best of
its knowledge such Party's Promotional Materials will neither infringe on any
copyright, U.S. patent or any other third party right nor violate any applicable
law or regulation and (v) such Party acknowledges that the other Party makes no
representations, warranties or agreements related to the subject matter hereof
which are not expressly provided for in this Agreement.
IV. CONFIDENTIALITY
Each Party acknowledges that Confidential Information may be disclosed to the
other Party during the course of this Agreement. Each Party agrees that it will
take reasonable steps, at least substantially equivalent to the steps it takes
to protect its own proprietary information, during the term of this Agreement,
and for a period of three years following expiration or termination of this
Agreement to prevent the 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
15
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 fulled 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.
V. RELATIONSHIP WITH CUSTOMERS
Solicitation of Subscribers. During the Term and for the ***** period following
the expiration or termination of this Agreement, ***** will use the information
available or obtained as a result of this Agreement to (i) solicit or
participate in the solicitation of AOL Members ***** when that solicitation is
for the benefit of any entity (including a party hereunder) which could
reasonably be construed to be or become in competition with ***** or (ii)
promote any services which could reasonably be construed to be in competition
with services of or available through *****, including, but not limited to,
services available through the Internet. ***** may send any unsolicited e-mail
communications to the ***** AOL Members *****, on or through the AOL Network
without a "Prior Business Relationship." For purposes of this Agreement, a
"Prior Business Relationship" shall mean that the AOL Member *****, as the case
may be, has either (i) purchased Products or services or Content from ***** or
(ii) voluntarily provided information to ***** through a contest, registration,
or other communication, which included clear and conspicuous notice to the AOL
Member that the information provided by the AOL Member could result in an e-mail
being sent to that AOL Member by ICP or its agents. In any commercial e-mail
communications to AOL Members *****, as applicable, which are otherwise
permitted hereunder, the sending party shall provide the recipient with a
prominent and easy means to "opt-out" of receiving any future commercial e-mail
communications from said party.
Collection of Member Information. ***** is prohibited from collecting ICP
Subscriber or AOL Member screennames, as applicable, from public or private
areas of the AOL Network, the ICP Internet Site, ICP Interactive Site or
otherwise, except as specifically provided below. ***** shall ensure that any
survey, questionnaire or other means of collecting information including,
without limitation, requests directed to specific screennames and automated
methods of collecting screennames (an "Infor mation 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 ***** in writing during the
Term and which have been provided to the other party in writing (the "Privacy
Policies"). Each Information Request shall clearly and conspicuously specify to
the AOL Members *****, as applicable, the purpose for which Member Information
collected through the Information Request shall be used (the "Specified
Purpose").
Use of Member Information. ***** shall restrict use of the Member Information
collected through an Information Request to the Specified Purpose. In no event
shall ***** (i) provide names, screennames, addresses or other identifying
information ("Member Information") to any third party (except to the extent
specifically (a) permitted under the Privacy Policies or applicable Membership
or Subscription Agreements or (b) authorized by the AOL Members ***** in
question) or (ii) otherwise use any Member Information in contravention of the
above section regarding "Solicitation of Members."
E-mail Newsletters. Any e-mail newsletters sent to AOL Members by ICP or its
agents shall (i) be subject to AOL's policies on use of the e-mail
functionality, including but not limited to AOL's policy on unsolicited bulk
e-mail, (ii) be sent only to AOL Members requesting to receive such newsletters,
i.e. as a result of subscribing to ICP's Internet Site, (iii) not contain
Content which violates AOL's Terms of Service, and (iv) not contain any
advertisements,
----------------------
***** Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
16
marketing or promotion for any other Interactive Services Provider.
VI. TREATMENT OF CLAIMS
Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES
(EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES),
ARISING FROM BREACH OF OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, THE USE
OF OR INABILITY TO USE THE AOL NETWORK OR ANY OTHER PROVISION OF THIS
AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, OR ANTICIPATED PROFITS
OR LOST BUSINESS (COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY
SHALL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE
CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION BELOW. EXCEPT AS
PROVIDED BELOW IN THE "INDEMNITY" SECTION, NEITHER PARTY SHALL BE LIABLE TO THE
OTHER PARTY FOR MORE THAN THE AGGREGATE AMOUNTS PAYABLE HEREUNDER IN THE YEAR IN
WHICH LIABILITY ACCRUED; PROVIDED THAT EACH PARTY SHALL REMAIN LIABLE FOR THE
AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY UNDER THE
PROVISIONS OF THIS AGREEMENT.
No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER, AND
SPECIFICALLY REGARDING THE AOL NETWORK, OR ANY AOL PUBLISHING TOOLS, INCLUDING
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND
IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EACH PARTY SPECIFICALLY
DISCLAIMS ANY WARRANTY REGARDING THE PROFITABILITY OR OTHER FINANCIAL
IMPLICATIONS OF AOL NETWORK OR THE ICP INTERNET SITE.
Indemnity. Each Party will defend, indemnify, save and hold harmless the other
Party and the officers, directors, agents, affiliates, distributors, franchisees
and employees of the other Party from any and all third party claims, demands,
liabilities, costs or expenses, including reasonable attorneys' fees
("Liabilities"), resulting from the indemnifying Party's material breach of any
duty, represen tation, or warranty of this Agreement.
If a Party entitled to indemnification hereunder (the "Indemnified Party")
becomes aware of any matter it believes is indemnifiable hereunder involving any
claim, action, suit, investigation, arbitration or other proceeding against the
Indemnified Party by any third party (each an "Action"), the Indemnified Party
shall give the other Party (the "Indemnifying Party") prompt written notice of
such Action. Such notice shall (i) provide the basis on which indemnification is
being asserted and (ii) be accompanied by copies of all relevant pleadings,
demands, and other papers related to the Action and in the possession of the
Indemnified Party. The Indemnifying Party shall have a period of ten (10) days
after delivery of such notice to respond. If the Indemnifying Party elects to
defend the Action or does not respond within the requisite ten (10) day period,
the Indemnifying Party shall be obligated to defend the Action, at its own
expense, and by counsel reasonably satisfactory to the Indemnified Party. The
Indemnified Party shall cooperate, at the expense of the Indemnifying Party,
with the Indemnifying Party and its counsel in the defense and the Indemnified
Party shall have the right to participate fully, at its own expense, in the
defense of such Action. If the Indemnifying Party responds within the required
ten (10) day period and elects not to defend such Action, the Indemnified Party
shall be free, without prejudice to any of the Indemnified Party's rights
hereunder, to compromise or defend (and control the defense of) such Action. In
such case, the Indemnifying Party shall cooperate, at its own expense, with the
Indemnified Party and its counsel in the defense against such Action and the
Indemnifying Party shall have the right to participate fully, at its own
expense, in the defense of such Action. Any compromise or settlement of an
Action shall require the prior written consent of both Parties hereunder, such
consent not to be unreasonably withheld or delayed.
Claims. Each Party agrees to (i) promptly notify the other Party in writing of
any indemnifiable claim and give the other Party the opportunity to defend or
negotiate a settlement of any such claim at such other Party's expense and (ii)
cooperate fully with the other Party, at that other Party's expense, in
defending or settling such claim.
17
Acknowledgment. AOL AND ICP EACH ACKNOWL EDGE THAT THE PROVISIONS OF THIS AGREE
MENT WERE NEGOTIATED TO REFLECT AN IN FORMED, VOLUNTARY ALLOCATION BETWEEN THEM
OF ALL RISKS (BOTH KNOWN AND UNKNOWN) ASSOCIATED WITH THE TRANSACTIONS
CONTEMPLATED HEREUNDER. THE LIMITATIONS AND DISCLAIMERS RELATED TO WARRANTIES
AND LIABILITY CONTAINED IN THIS AGREEMENT ARE INTENDED TO LIMIT THE
CIRCUMSTANCES AND EXTENT OF LIABILITY. THE PROVISIONS OF THIS SECTION VI SHALL
BE ENFORCEABLE INDEPENDENT OF AND SEVERABLE FROM ANY OTHER ENFORCEABLE OR
UNENFORCEABLE PROVISION OF THIS AGREEMENT.
VII. ARBITRATION
(a) The Parties shall 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 this Agreement or any document executed
pursuant to this Agreement. If the Parties cannot resolve the Dispute within
such timeframe, the Dispute shall be submitted to the Management Committee for
resolution. For ten (10) days after the Dispute was submitted to the Management
Committee, the Management Committee shall have the exclusive right to resolve
such Dispute; provided further that the Management Committee shall 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. "Management Committee" shall mean a committee
made up of a senior executive from each of the Parties for the purpose of
resolving Disputes under this Section and generally overseeing the relationship
between the Parties contemplated by this Agreement. Neither Party shall seek,
nor shall be entitled to seek, binding outside resolution of the Dispute unless
and until the Parties have been unable to amicably resolve the dispute as set
forth in this paragraph (a) and then, only in compliance with the procedures set
forth in this Section.
(b) 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 shall be resolved
by the Parties solely and exclusively through amicable resolution as set forth
in paragraph (a)), any Dispute not resolved by amicable resolution as set forth
in paragraph (a) shall be governed exclusively and finally by arbitration. Such
arbitration shall be conducted by the American Arbitration Association ("AAA")
in Washington, D.C. and shall be initiated and conducted in accor dance 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 shall 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 shall
not apply in order to promote the efficient arbitration of Disputes where the
nature of the Dispute, including without limitation the amount in controversy,
does not justify the application of such procedures.
(c) The arbitration panel shall consist of three arbitrators. Each Party shall
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
arbitra tors 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.
(d) The Federal Arbitration Act, 9 U.S.C. Secs. 1-16, and not state law, shall
govern the arbitrability of all Disputes. The arbitrators shall 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
shall reference the Federal Rules of Civil Procedure then in effect in setting
the scope and timing of discovery. The Federal Rules of Evidence shall apply in
toto. The arbitrators may enter a default decision against any Party who fails
to participate in the arbitration proceedings.
(e) The arbitrators shall have the authority to award compensatory damages only.
Any award by the arbitrators shall be accompanied by a written opinion setting
forth the findings of fact and conclusions of law relied upon in
18
reaching the decision. The award rendered by the arbitrators shall 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 shall be kept confidential and no Party shall
disclose to any person any information about such arbitration, except as may be
required by law or by any governmental authority or for financial reporting
purposes in each Party's financial statements.
(f) Each Party shall pay the fees of its own attorneys, expenses of witnesses
and all other expenses and costs in connection with the presentation of such
Party's case (collectively, "Attorneys' Fees"). The remaining costs of the
arbitration, including without limitation, fees of the arbitrators, costs of
records or transcripts and administrative fees (collectively, "Arbitration
Costs") shall be borne equally by the parties. Notwithstanding the foregoing,
the arbitrators may modify the allocation of Arbitration Costs and award
Attorneys' Fees in those cases where fairness dictates a different allocation of
Arbitration Costs between the Parties and an award of Attorneys' Fees to the
prevailing Party as determined by the arbitrators.
(g) Any Dispute that is not subject to final resolution by the Management
Committee or to Arbitration under this Section or law (collectively,
"Non-Arbitration Claims") shall be brought in a court of competent jurisdiction
in the Commonwealth of Virginia. Each Party irrevocably consents to the
exclusive jurisdiction of the courts of the Commonwealth of Virginia and the
federal courts situated in the Commonwealth of Virginia, over any and all Non-
Arbitration Claims and any and all actions to enforce such claims or to recover
damages or other relief in connection with such claims.
VIII. MISCELLANEOUS
Auditing Rights. Each Party shall maintain complete, clear and accurate records
of all expenses, revenues, fees, transactions and related documentation
(including agree ments) in connection with the performance of this Agreement
("Records"). All such Records shall be maintained for a minimum of five (5)
years following termination of this Agreement. For the sole purpose of ensuring
compli ance with this Agreement, each Party shall have the right, at its
expense, to direct an independent certified public accounting firm subject to
strict confidentiality restrictions to conduct a reasonable and necessary
copying and inspection of portions of the Records of the other Party which are
directly related to amounts payable to the Party requesting the audit pursuant
to this Agreement. Any such audit may be conducted after twenty (20) business
days' prior written notice, subject to the following. Such audits shall not be
made more frequently than once every twelve months. No such audit of AOL shall
occur during the period beginning *****. In lieu of providing access to its
Records as described above, a Party shall be entitled to provide the other Party
with a report from an independent certified public accounting firm confirming
the information to be derived from such Records.
Excuse. Neither Party shall be liable for, or be considered in breach of or
default under this Agreement on account of, any delay or failure to perform as
required by this Agreement as a result of any causes or conditions which are
beyond such Party's reasonable control and without such Party's fault or
negligence and which such Party is unable to overcome by the exercise of
reasonable diligence.
Independent Contractors. The Parties to this Agreement are independent
contractors. Neither Party is an agent, representative or partner of the other
Party. Neither Party shall have any right, power or authority to enter into any
agreement for or on behalf of, or incur any obligation or liability of, or to
otherwise bind, the other Party. This Agreement shall not be interpreted or
construed to create an association, agency, joint venture or partnership between
the Parties or to impose any liability attributable to such a relationship upon
either Party.
Notice. Any notice, approval, request, authorization, direction or other
communication under this Agreement will be given in writing and will be deemed
to have been delivered and given for all purposes (i) on the delivery date if
delivered by electronic mail on the AOL Network (to screenname "AOLNotice" 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
----------------------
***** Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
19
business days after the mailing date, whether or not actually received, if sent
by U.S. mail, return receipt requested, postage and charges prepaid, or any
other means of rapid mail delivery for which a receipt is available. In the case
of AOL, such notice will be provided to both the Senior Vice President for
Business Affairs (fax no. *****) and the Deputy General Counsel (fax no. *****),
each at the address of AOL set forth in the first paragraph of this Agreement.
In the case of ICP, except as otherwise specified herein, the notice address
shall be the address for ICP 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.
No Waiver. The failure of either Party to insist upon or enforce strict
performance by the other Party of any provision of this Agreement or to exercise
any right under this Agreement shall not be construed as a waiver or
relinquishment to any extent of such Party's right to assert or rely upon any
such provision or right in that or any other instance; rather, the same shall be
and remain in full force and effect.
Return of Information. Upon the expiration or termination of this Agreement,
each Party shall, upon the written request of the other Party, return or destroy
(at the option of the Party receiving the request) all confidential
information, documents, manuals and other materials specified by the other
Party.
Survival. Sections IV, V, VI, and VII of this Exhibit C, and any other
provisions which must survive in order to give effect to their meaning, shall
survive the completion, expiration, termination or cancellation of this
Agreement.
Entire Agreement. This Agreement sets forth the entire agreement and supersedes
any and all prior agreements of the Parties with respect to the transactions set
forth herein. Neither Party shall be bound by, and each Party specifically
objects to, any term, condition or other provision which is different from or in
addition to the provisions of this Agreement (whether or not it would materially
alter this Agreement) and which is proffered by the other Party in any
correspondence or other document, unless the Party to be bound thereby
specifically agrees to such provision in writing.
Amendment. No change, amendment or modification of any provision of this
Agreement shall be valid unless set forth in a written instrument signed by the
Party subject to enforcement of such amendment.
Further Assurances. Each Party shall take such action (including, but not
limited to, the execution, acknowledgment and delivery of documents) as may
reasonably be requested by any other Party for the implementation or continuing
performance of this Agreement.
Assignment. Except to a parent, subsidiary or affiliated company, ICP shall not
assign this Agreement or any right, interest or benefit under this Agreement
without the prior written consent of AOL. Assumption of the Agreement by any
successor to ICP (including, without limitation, by way of merger or
consolidation) shall be subject to AOL's prior written approval. Subject to the
foregoing, this Agreement shall be fully binding upon, inure to the benefit of
and be enforceable by the Parties hereto and their respective successors and
assigns.
Construction; Severability. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be construed or if any
such provision is held invalid by a court with jurisdiction over the Parties to
this Agreement (i) such provision shall be deemed to be restated to reflect as
nearly as possible the original inten tions of the Parties in accordance with
applicable law, and (ii) the remaining terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect.
Remedies. Except where otherwise specified, the rights and remedies granted to a
Party under this Agreement are cumulative and in addition to, and not in lieu
of, any other rights or remedies which the Party may possess at law or in
equity.
Applicable Law; Jurisdiction. This Agreement shall be interpreted, construed and
enforced in all respects in accordance with the laws of the Commonwealth of
Virginia except for its conflicts of laws principles. Each Party
----------------------
***** Confidential treatment has been requested for the redacted portions.
The confidential redacted portions have been filed separately with the
Securities and Exchange Commission.
20
irrevocably consents to the exclusive jurisdiction of the courts of the
Commonwealth of Virginia and the federal courts situated in the Commonwealth of
Virginia, in connection with any action to enforce the provisions of this
Agreement, to recover damages or other relief for breach or default under this
Agreement, or otherwise arising under or by reason of this Agreement.
Export Controls. Both parties shall adhere to all applicable laws, regulations
and rules relating to the export of technical data and shall not export or
re-export any technical data, any products received from the other Party or the
direct product of such technical data to any proscribed country listed in such
applicable laws, regulations and rules unless properly authorized.
Headings. The captions and headings used in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same document.
21
EXHIBIT D
Format For ICP's Presence on the AOL Network
o Any ICP trademark or logo
o Any headline or picture from ICP content
o Any teaser, icon, link to ICP Internet Site or Welcome Mat
o Any other Content which originates from, describes or promotes ICP or
ICP's Content
21
EXHIBIT F
CERTIFICATION OF COMPLIANCE WITH COMMITMENTS
REGARDING PROMOTIONS
Pursuant to Section 3 of the Interactive Services Agreement between ___________
("ICP") and America Online, Inc. ("AOL"), dated as of __________, 1998 (the
"Agreement"), the following report is delivered to AOL for the month ending
__________ (the "Month"):
I. Promotional Commitments
ICP hereby certifies to AOL that ICP completed the following promotional
commitments previously mutually agreed upon during the Month:
Type of Promotion Date(s) of Duration/Circulation of Relevant Contract
Promotion Promotion Section
----------------- ---------- ----------------------- -----------------
1.
2.
3.
IN WITNESS WHEREOF, this Certificate has been executed this ___ day of
__________, 199_.
------------------------------------------
By:_______________________________________
Print Name:________________________________
Title:______________________________________
Date:______________________________________
23
Exhibit G
AOL, Inc.'s Terms of Service Agreement
For quick tips on how to make the most out of AOL, check out the Rules
of the Road at keyword "TOS." All defined terms are referenced at the end of
this document.
1. TERMS OF SERVICE AGREEMENT AND RULES OF THE ROAD
A. America Online, Inc. ("AOL, Inc." or "we") provides its America
Online(R) service ("AOL") to you as a registered subscriber or authorized user
("Member" or "you"), subject to the terms of this agreement and AOL, Inc.'s
operating rules or the "Rules of the Road" ("Rules"). Both of these documents
are binding agreements and referred to collectively as "TOS" (you may access the
TOS by using keyword "TOS"). The TOS comprises the entire agreement between AOL,
Inc. and you, superseding any prior agreements between you and AOL, Inc. with
respect to its subject matter. Additionally, you may be subject to additional
terms and conditions that may apply when you use affiliate services (e.g., the
International Areas), third-party content, software, or services.
B. In order to address the dynamic evolution of the Internet and AOL,
Inc.'s business, AOL, Inc. periodically revises TOS and reserves the right to
revise TOS. If AOL, Inc. revises TOS, the revision shall take effect thirty (30)
days after the date of the last TOS change as posted in the Terms of Service
area (again, at keyword "TOS") ("Effective Date"). The Front Screen of the Terms
of Service area will provide the date of the last TOS change. AOL, Inc. will
also supplement such notice of TOS changes within the monthly "▇▇▇▇▇ ▇▇▇▇
Community Update Area." You agree to review the TOS periodically to be aware of
such changes. If any change is unacceptable to you, you may terminate your
membership as provided in Section 10 below. Your continued use of AOL following
the Effective Date of any such change to the TOS constitutes acceptance of all
such changes.
2. YOUR ACCOUNT INFORMATION
A. You certify that YOU ARE AT LEAST EIGHTEEN (18) YEARS OLD. You
agree to provide AOL, Inc. with accurate, complete, and current registration
information. Failure to do this shall constitute a breach of this agreement and
unauthorized access to AOL. Unauthorized access to AOL could result in immediate
termination of your account and subject you to civil and criminal liability. AOL
Inc. reserves the right to limit the number of memberships for a Member to one,
including trial offers.
B. By registering as a Member, you will receive a password, a "master
account," choice of an associated screen name, and the ability to have up to
four other "sub-accounts" and associated screen names. You may not select or use
a screen name used by another person (unless it is also your name), a name in
violation of a third party's property rights, or a screen name that AOL, Inc.
deems offensive or otherwise inappropriate. AOL, Inc. owns all screen names, and
licenses them to you for a period that
24
will not exceed the duration of your AOL membership. Additionally, you may not
use your name in violation of the TOS or in ways AOL deems inappropriate (e.g.,
sending or causing to be sent unsolicited bulk e-mail ("UBE")). AOL, Inc.
reserves the right, in its sole discretion, to suspend the use of any screen
name, or to delete any such screen name or to request deletion.
C. You are entirely liable for all activities conducted through your
master account and any subaccounts. A Member may not permit another individual
to use the Member's master account without direct supervision by the Member. A
Member may permit another individual, including a minor, to use the Member's
sub-accounts subject to the following limitations: The Member hereby agrees (1)
to supervise the other individual's use of the Member's accounts, (2) to assume
any and all resulting liabilities of such use, including responsibility for any
and all content accessed on AOL or the Internet, (3) to indemnify and hold AOL
harmless for any such use of AOL by a person other than the Member, and (4) to
acknowledge that any decision to allow another individual to use the Member's
account is made by the Member and not AOL, Inc. AOL Inc. reserves the right to
limit the number of memberships for a Member to one, including trial offers.
Members' accounts may be automatically logged off due to inactivity. AOL, Inc.
prohibits the use of unauthorized functionality to defeat AOL's automatic
log-off functionality. Because AOL, Inc. sends important notices about your
membership to the master account holder, you agree to check the master account
regularly and bear the risk of failing to do so.
D. Members who have had their AOL membership terminated may not access
AOL without AOL, Inc.'s prior express written (including e-mail) permission.
Members may not allow a former Member or other agent whose membership has been
terminated to use their account. For additional information on re-registration
and multiple accounts, see Section 10 below.
3. CHARGES AND BILLING PRACTICES
A. You may obtain current rates and surcharges for using AOL by calling
AOL, Inc.'s Customer Service at ▇-▇▇▇-▇▇▇-▇▇▇▇ or by selecting "Billing" under
"Member Services" (or keyword "Billing"). AOL, Inc. explains billing practices
under "Explain Billing Terms." Such rates and surcharges do not include any
sales, use, value-added, personal property, or other governmental tax or levy
imposed on goods or services billed to Member's account. You are responsible for
any such taxes.
B. If you have elected to pay for AOL by credit card and AOL, Inc. does
not receive payment from the card issuer or its agents, you agree to pay all
amounts due upon demand by AOL, Inc. Each time you use AOL you agree and
reaffirm that AOL, Inc. is authorized to charge your designated card or withdraw
funds via electronic funds transfer from your checking account, whichever
situation applies. Your credit card issuer agreement governs your use of your
designated card in connection with AOL, and you must refer to that agreement and
not this TOS with respect to your rights and liabilities as a card holder. You
agree that AOL, Inc. may, at its option, accumulate charges incurred during your
billing cycle and submit them as one or more aggregate charges during or at the
end of each cycle for electronic funds transfer from your checking account or
credit card as applicable. This means that accumulated charges may appear on the
statement you receive from your bank or card issuer. Further, you agree that
25
AOL, Inc. may delay obtaining authorization from your card issuer until
submission of the accumulated charges. You acknowledge that if you want to see
the components of accumulated charges you may do so by using keyword "Billing."
C. If AOL, Inc. does not receive the full amount of your AOL account
balance within thirty (30) days of the date of your invoice, an additional 1.5%
(or the highest amount allowed by law, whichever is lower) per month late charge
may be added to your ▇▇▇▇ and immediately become due and payable. Member shall
be liable for all attorney and collection fees arising from AOL, Inc.'s efforts
to collect any unpaid balance of your account(s). You agree to be billed for and
to pay any outstanding balance in the event of cancellation or termination of
your AOL account. Unless you notify AOL, Inc. of any discrepancies within ninety
(90) days after they first appear on your account statement, the statement will
be deemed acceptable by you for all purposes, including resolution of inquiries
made by your card issuer. You release AOL, Inc. from all liabilities and claim
of loss resulting from any error or discrepancy that is not reported to AOL,
Inc. within ninety (90) days of its publication.
D. AOL, INC. RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS FEES AND
BILLING METHODS, INCLUDING THE ADDITION OF SUPPLEMENTAL FEES OR SEPARATE CHARGES
FOR ONLINE AREAS, CONTENT (AS DEFINED BELOW), OR SERVICES PROVIDED BY AOL, ITS
AFFILIATES, OR INTERACTIVE CONTENT PROVIDERS ("ICPs"), EFFECTIVE THIRTY (30)
DAYS AFTER AN ONLINE POSTING IN THE BILLING AREA OF AOL (AGAIN, AT KEYWORD
"BILLING"). AOL, INC. MAY ALSO ELECT, AT ITS DISCRETION, TO SUPPLEMENT SUCH
NOTICE OF BILLING CHARGES THROUGH POP-UPS OR E-MAIL TO YOUR MASTER ACCOUNT
SCREEN NAME OR THROUGH THE U.S. MAIL TO THE MASTER ACCOUNT HOLDER. If any such
change is unacceptable to you, you may terminate your membership as provided
in Section 10 below. Your continued use of AOL following the effective date
shall constitute your acceptance of such change. Your membership fees are
payable in advance, and AOL, Inc. will not refund any portion of your monthly
membership fee upon cancellation or termination of your membership.
E. You are responsible for all charges associated with connecting to
AOL. YOU AGREE THAT ANY TELEPHONE CHARGES INCURRED ARE YOUR RESPONSIBILITY,
INCLUDING ANY CHARGES ASSOCIATED WITH ACCESSING A SURCHARGED 800 OR 888 NUMBER.
DEPENDING ON YOUR PARTICULAR LOCATION, THE NEAREST ACCESS NUMBER MAY NOT BE A
LOCAL PHONE CALL AND YOU MAY BE SUBJECT TO LONG DISTANCE CHARGES. You should
check with your local phone company to determine whether any specific access
number is a local call. If there is no access number in your local area, or if
you use AOL's surcharged 800 or 888 numbers, you may be assessed communication
surcharges on your AOL ▇▇▇▇. These apply even if you are using your trial hours
or have selected an unlimited access plan. For more information see keyword
"Access." You are responsible for all activities and charges under your master
and subaccount(s). You acknowledge that if you want to see the detailed
components of accumulated charges, you may do so by using the keyword "Billing."
26
4. RIGHTS AND RESPONSIBILITIES
A. CONTENT.
You acknowledge that:
(i) AOL contains information, communications, software, photos,
video, graphics, music, sounds, and other material and
services (collectively "Content");
(ii) Such Content is provided under license by ICPs, other Members,
AOL, Inc. and its affiliates; and
(iii) At minimum, AOL, Inc. owns a copyright in the selection,
coordination, arrangement, and enhancement of such Content.
Each Member and any user of Member's master account or sub-account must
evaluate, and bear the risk associated with any reliance on the accuracy,
completeness or usefulness of any Content. AOL, Inc. does not pre-screen Content
as a matter of policy: however AOL, Inc., its affiliates, and ICPs shall each
have the right, but not the responsibility, to remove Content that it deems
harmful, offensive or otherwise in violation of the TOS. Accordingly, you
acknowledge that neither AOL, Inc., any affiliate, or any ICP shall assume or
have any liability for any action or inaction by it, with respect to Content on,
or Content changes within, AOL.
B. PROPRIETARY RIGHTS.
You acknowledge the following:
(i) AOL, Inc. permits access to Content that is protected by
copyrights, trademarks, and other intellectual and proprietary
rights ("Rights");
(ii) These Rights are valid and protected in all media and
technologies existing now or later developed; and
(iii) Except as explicitly stated otherwise, the TOS, applicable
copyright and other laws govern your use of Content (see the
Rules, Section D, for details).
You agree that you may upload to the software files, message boards, or
otherwise transmit on or through AOL only Content that (1) is not subject to any
Rights, or (2) any holder of Rights has given express authorization for
distribution on AOL. You represent that if you upload any files, you have the
legal authorization to do so. You agree that AOL, Inc. may employ virus-checking
technology to screen for viruses that could be harmful to its system and its
members. By submitting Content to any "public area" of AOL (e.g., message
boards, forums, the Member Directory), you grant AOL, Inc. and its affiliates
the royalty-free, perpetual, irrevocable, non-exclusive right (including any
moral rights) and license to use, reproduce, modify, adapt, publish, translate,
create derivative works from, distribute, communicate to the public, perform and
display the Content (in whole or in part) worldwide and/or to incorporate it in
other works in any form, media or technology now known or later developed, for
the full term of any rights that may exist in such Content. You also warrant
that the holder of any Rights, including moral rights in such Content, has
completely and effectively waived all such Rights and validly
27
and irrevocably granted to you the right to grant the license stated above. You
also permit any Member and authorized user to access, display, view, store and
reproduce the Content for personal use. Subject to the foregoing, the owner of
Content placed on AOL retains any and all Rights that may exist in such Content.
C. CONDUCT AND COMMUNICATION
You acknowledge that AOL may contain material that may be inappropriate
for minors. AOL offers Parental Control tools that enables the master account
holder to restrict the access of minors to certain AOL and Internet areas and
features, but makes no warranties with respect to such tools. You recognize that
AOL, from time-to-time may provide additional member empowerment tools, such as
Parental Controls, Mail Controls, and Marketing Preferences, that are intended
to enhance your choices and general experience online or on the Internet. See
keyword "Reach Out" for details. You also recognize that communication over AOL
often occurs in real time or is posted on one of AOL's thousands of message
boards or libraries. You acknowledge that AOL, Inc. cannot, and does not intend
to, screen all communications in advance for accuracy or conformance to the TOS
or any laws. However, AOL, Inc. may elect, at its sole discretion, to monitor
some, all, or none of AOL's public areas for adherence to the TOS or applicable
laws and take appropriate action as described elsewhere in TOS. Accordingly, you
acknowledge that neither AOL, Inc., its affiliates, nor any ICP shall assume or
have any liability for any action or inaction by AOL, Inc., its affiliates, or
any ICP with respect to Content on AOL. Any conduct by a Member that in AOL,
Inc.'s sole discretion restricts or inhibits any other Member, person or entity
from using or enjoying AOL or another service shall entitle AOL, Inc. to
immediately terminate membership without notice. You agree to use AOL only for
lawful purposes.
You may not use, or allow others to use, your AOL account within AOL community
space ("AOL Community Space"), either directly or indirectly, to:
(1) post, transmit, promote, or facilitate the distribution of any
unlawful or illegal Content;
(2) harass, threaten, embarrass, or cause distress, unwanted
attention or discomfort upon another Member or user of AOL or
other person or entity;
(3) post, transmit, promote, or facilitate the distribution of any
harmful, abusive, harassing, sexually explicit, vulgar,
hateful (e.g., racially or ethnically hateful), or other
Content which is deemed by AOL, Inc. to be offensive or
objectionable;
(4) disrupt the normal flow of dialogue in a chat room or on a
message board or otherwise act in a manner that negatively
affects other Members, users, individuals or entities, such as
causing the screen to "scroll" faster than other Members or
users are able to type to it or any action to a similar
disruptive effect;
(5) impersonate any person or entity, including, but not limited
to, an AOL, Inc. employee, official, an ICP, forum leader,
guide or host, or communicate under a false name or a name
that you are not entitled or authorized to use, or impersonate
a minor;
(6) post, transmit, promote, or facilitate the distribution of
chain letters or pyramid schemes;
(7) post, transmit, promote, or facilitate the distribution of any
unsolicited advertising, promotional materials, or other forms
of solicitation to other Members, individuals or
28
entities, except in those areas that are expressly designated
for such a purpose (e.g., the classified areas), or collect or
harvest screen names of other Members, without permission;
(8) post, transmit, promote, or facilitate the distribution of any
communication or solicitation designed or intended to obtain
password, account or private financial information from any
Member;
(9) violate any operating rule, policy or guideline of any other
interactive service, including, but not limited to, the
operating policies of the International Areas; or
(10) intentionally or unintentionally violate any applicable local,
state, national, international or foreign law, including, but
not limited to, any rules or regulations having the force of
law.
Please see the Rules for additional examples of prohibited conduct.
AOL, Inc. reserves the right to protect its Members and AOL from offensive
e-mail communication, including, but not limited to, the right to block UBE, or
"junk e-mail" using the Preferred Mail tool or other measures. AOL, Inc. further
reserves the right, in its sole discretion, to temporarily suspend the delivery
of mail through the Preferred Mail tool. With the exception of Section 4C(l)
above, AOL Inc. does not enforce ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇-▇▇▇ Community Space.
You also agree and accept that as new products or services become
available on or through AOL, your use of these products or services is subject
to TOS. In addition to Content and services provided by ICPS, AOL, Inc., and its
affiliates, these service providers and others may each offer Content, software
or other services to Members with its own terms and conditions relating to your
use. Failure to abide by these terms and conditions may result in termination of
membership. Furthermore, other such networks, including Internet areas, may
subject Members to their own usage policies.
5. PRIVACY POLICY
A. INTRODUCTION
(i) General. Because protecting your privacy is very important to AOL,
Inc.,we have established a privacy policy that safeguards your personal
information, and are committed to protecting its confidentiality. We will limit
the collection and use of personal information, or Individual Information (as
defined below), to what is necessary to administer our business, provide you
with the highest quality service, and offer you opportunities we think will be
of interest. We will NOT disclose any Individual Information except in the
limited circumstances specifically described below. AOL does disclose Individual
Information in an aggregated form that does not identify individual Members in
order to describe its services to prospective partners, advertisers and other
third parties. We actively participate in industry associations and community
groups to support strong and effective privacy guidelines and practices in the
interactive environment.
29
(ii) Members Marketing Preferences. AOL provides its Members with
choices when it comes to the disclosure of Individual Information (defined
below). Our Marketing Preferences area (keyword "Marketing Preferences")
provides you with an easy means to remove yourself from AOL's mailing lists,
telemarketing lists, pop-up lists and e-mail lists. You can also remove yourself
from the lists that we might make available to third parties using the same
keyword "Marketing Preferences." You understand that you will receive occasional
pop-ups, mailings and e-mails containing important information about AOL or your
membership even if you have elected not to receive product information pop-ups,
mailings or e-mails.
(iii) Kids Only Area. AOL, Inc. recognizes that children need greater
protection of their privacy than teens and adults. AOL, Inc. has special privacy
policies that govern the collection, use, and distribution of information about
children within the Kids Only Area. See keyword "Families" for more information.
(iv) Types of Individual Information. Individual Information
("Individual Information") is any information data or records that relate to
your AOL membership or use of AOL and identifies you or your individual Member
account. The three types of Individual Information are: (1) "identity and
billing information," such as your name, street address, telephone number,
billing information, and any screen names associated with your account; (2)
"navigational and transactional information," such as information about where
you go or what you buy through AOL; and (3) "private communications," such as
the contents of e-mail, or private chat room or instant message communications.
(v) The Internet. Please be aware that AOL is a private online service
that allows access to the Internet but is not the Internet. AOL, Inc. does not
control the content, services, or areas available through the Internet (with
minor exceptions, such as the AOL home page), and providers of Internet sites or
services have separate data and privacy practices independent of AOL, Inc.
Internet areas may appear to be seamlessly incorporated into AOL, but generally
you can tell you are on the Internet whenever AOL's logo spins on the upper
right corner of your screen or when you click on icons labeled as Newsgroups,
Web, Link, FTP, Gopher, or other items relating to the Internet.
(vi) Interactive Content and Service Providers. Companies that are
independent from AOL, Inc. operate many of the online areas that you visit.
Although AOL, Inc. will seek to require these independent companies (e.g., ICPs,
including advertisers and merchants) to adhere to our strong privacy principles,
AOL, Inc. does not bear responsibility for their policies or actions. Be aware
that when you voluntarily disclose personal information (such as your screen
name) in public areas (e.g., the Member Directory, chat rooms, message boards,
Internet newsgroups), others may collect and use your information. (When you
visit Internet sites, your AOL screen name or other identity information
generally is not identifiable.) Also, ordering products through AOL often
requires you to provide an independent company with limited Individual
Information to enable fulfillment of your order.
30
B. MEMBER IDENTITY AND BILLING INFORMATION.
(i) Collection and Storage. We maintain the following types of identity
and billing information: your name, street address, telephone number(s), length
of membership, and payment information. If you wish to view your identity
information and billing, please go to keyword "Billing." When feasible, Members
may access and verify their Member Identity and Billing Information, and may
request corrections to this Information. (See keyword "Billing.") AOL, Inc.
generally retains account history records for approximately six months to one
year. We may also keep information on your communica tions with our Customer
Service or Community Action departments, and general account history, such as
accumulated usage credits or written complaints relating to your account. We
safeguard Individual Information from unauthorized access and only authorized
employees or agents who need to carry out legitimate business functions are
permitted access to Members' Individual Information. Employees who violate AOL,
Inc.'s privacy policies are subject to disciplinary actions, including
termination where appropriate. We may use agents, who are bound by strict
confidentiality guidelines, to perform storage, processing, and other limited
functions on AOL, Inc.'s behalf.
(ii) Use. We use identity and billing information to administer our
business, ensure that you are properly billed and offer you opportunities
(through pop-ups, e-mail, phone calls or direct mail) that may be of interest to
you. To develop lists for these opportunities, we may also match Member lists
against publicly available third-party data (demographic information, areas of
interest, etc.).
(iii) Disclosure. We make our mailing list (name and address) available
to select independent companies that offer products and information we think may
interest you. Additionally, we may make the list with telephone numbers
available to companies with which AOL, Inc. has contractual marketing and online
relationships for the purpose of permitting such companies to offer products and
services over the telephone. AOL, Inc. may also match the Member lists against
publicly available third-party data (demographic information, areas of interest,
etc.) to develop lists for use by these companies. AOL, Inc. reviews all
requests for its lists to ensure appropriateness.
We do not release Members' credit card numbers or checking account
numbers. Our policy is not to disclose identity information to third parties
that would link a Member's screen name(s) with a Member's actual name, unless
required to do so by law or legal process served on AOL, Inc. (e.g., a
subpoena). AOL, Inc., at its sole discretion, reserves the right to make
exceptions to this policy in extraordinary circumstances (such as a bomb or
suicide threat, or instances of suspected illegal activity) on a case-by-case
basis.
AOL, Inc. intends to abide by applicable laws governing the disclosure
to governmental entities of Individual Information and other records. If we are
under a legal obligation to disclose Individual Information to a private citizen
or entity, we may make efforts under the circumstances to notify the affected
Member(s) in advance of releasing it in order to provide the Member(s) an
opportunity to pursue any available legal protection.
31
C. NAVIGATIONAL AND TRANSACTIONAL INFORMATION.
(i) Collection. We may collect and store certain navigational and
transactional information, such as data on the choices you make from the range
of available services or merchandise, and the times and ways you use AOL and the
Internet.
(ii) Use. AOL, Inc. uses navigational and transactional information to
personalize AOL, for programming and editorial research and to offer special
opportunities to our Members. For example, we use this information to understand
our Members' reactions to menu items, Content, services and merchandise offered
through AOL and to customize AOL based on our Members' interests. AOL, Inc. may
use publicly available third-party data (demographic information, areas of
interest, etc.) to assist us in our programming, editorial research and to offer
special opportunities to our Members.
(iii) Disclosure. AOL, Inc. will not disclose to third parties
navigational or transactional information (e.g., where you go or what you buy on
or through AOL), except to comply with applicable law or valid legal process
(e.g., search warrant or court order). While AOL, Inc. may use such information
as criteria for developing Member lists for companies with which AOL, Inc. has a
contractual marketing and online relationship (referenced in Section B(iii)
above), AOL, Inc. does not disclose to any third-party, including the list
recipient, which profiling information was used to develop the list.
D. PRIVATE COMMUNICATIONS
(i) Collection and Storage. The AOL computer system does not record or
retain any chat room communications, instant message communications, oral online
communications or records of with whom you communicate in chat rooms or through
instant messages or oral online communications. The AOL e-mail system retains
the contents of private e-mail communications for a limited period only. To
retain copies of any communication you should store them on your personal
computer hard drive or in print form. You agree that AOL, Inc. may employ e-mail
virus-checking technology to protect its system and its Members from viruses.
(ii) Use. AOL, Inc. treats private communications on or through AOL as
strictly confidential. AOL, Inc. does not access, use or disclose the contents
of private communications, except in limited circumstances as specifically
provided below. You acknowledge that private communications directed at a person
or entity, including AOL, Inc., may be used or disclosed by the intended
recipient(s) without restrictions relating to privacy or confidentiality.
(iii) Disclosure. AOL, Inc. does not access or disclose the contents of
private communications (e.g., e-mail, instant messages, Member-created private
rooms, oral online communications), unless it in good faith believes that such
action is necessary (1) to comply with applicable law or valid legal process
(e.g., search warrant or court order); (2) to protect the rights or property of
AOL, Inc. or may be necessarily incident to the rendition of AOL; or (3) in
emergencies when AOL, Inc. believes that physical safety is at risk. AOL, Inc.
reserves the right to treat as public any private chat room whose directory or
32
room name is published or becomes generally known or available. AOL, Inc.
reserves the right to access and review password-protected Member web sites for
conformance to TOS.
6. INTERNATIONAL CONTENT AND THE INTERNET
A. AOL INTERNATIONAL AREAS.
You acknowledge that your use of AOL allows access to International
Areas (as defined at the end of this agreement) containing Content originating
from AOL, Inc. and its affiliates, other Members and users of AOL, ICP, as well
as other third parties which may originate from countries other than the United
States ("International Content"). Your access to and use of the International
Areas and International Content will be governed (in addition to the TOS) by
separate terms and operating policies and applicable national laws and customs.
B. INTERNET
AOL offers Members access to the Internet. The Internet is not owned,
operated, or managed by AOL, Inc. or any of its affiliates. You agree that your
Internet use is solely at your own risk and is subject to all applicable local,
state, national, international and foreign laws and regulations. Neither AOL,
Inc., its affiliates, ICPs, nor telecommunications providers for AOL, Inc.,
shall be held responsible or liable, directly or indirectly, for any loss or
damage caused or alleged to have been caused by your use of or reliance on any
content, goods or services available through the Internet or your inability to
access the Internet or any of its sites. You acknowledge that some Internet
sites may impose additional charges for your use or access to their site. Such
charges are separate and apart from your AOL membership fee and any other
charges incurred for use of AOL. This paragraph's provisions apply with equal
force even where AOL features or displays a link with any particular Web site.
Accordingly, AOL, Inc. and its affiliates specifically disclaim any
responsibility or liability for any conduct, content, goods and services
available on or through the Internet (including, without limitation, any part of
the Web). AOL, Inc. retains the right, but not the obligation, at its sole
discretion and without prior notice or liability, to restrict and/or terminate a
Member's access to the Internet via AOL or to AOL if your use of the Internet,
in AOL, Inc.'s sole discretion, violates any applicable law or regulation, any
prohibitions on your conduct in connection with the Internet, or otherwise
inhibits any other user from enjoying the Internet or AOL. The foregoing does
not limit the other rights available to AOL, Inc. under the Rules (see Sections
2C and 2E of the Rules for details).
AOL, Inc. retains the right, but not the obligation, in its sole
discretion and without prior notice or liability, to block or otherwise limit
the transmission through AOL Inc.'s proprietary computers and computer networks
from the Internet of any UBE, or other Internet content. AOL, Inc. reserves the
right, in its sole discretion, to determine whether e-mail transmissions to its
Members from the Internet constitute UBE. You acknowledge and agree that your
receipt of UBE from the Internet may be limited by the technical measures taken,
or policies adopted, by AOL, Inc. to maintain the functionality and integrity of
its proprietary computers and computer networks, or to preclude the unwanted
receipt of UBE from the Internet by Members.
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7. AOL SOFTWARE LICENSES
AOL, Inc. grants to you a non-exclusive, limited license to use AOL
software to connect to AOL from authorized locations in accordance with this
agreement. This license is subject to the restriction that, except where
expressly permitted by law, you may not translate, reverse-engineer or reverse
compile or decompile, disassemble or make derivative works from, AOL software.
You may not modify AOL software or use it in any way not expressly authorized in
these Rules. From time to time, it will be necessary for AOL to update the
client software to provide additional services and products. You hereby consent
to these automatic upgrades. You agree and accept that AOL's introduction of
various technologies may not be consistent across all platforms (e.g.,
Macintosh).
8. WARRANTY
MEMBER EXPRESSLY AGREES THAT THE USE OF AOL, AOL SOFTWARE, AND THE
INTERNET ARE AT MEMBER'S SOLE RISK. AOL, AOL SOFTWARE, AOL PRODUCTS, VIRUS-
CHECKING SOFTWARE, AND THE INTERNET ARE PROVIDED "AS IS" AND "AS AVAILABLE" FOR
YOUR PERSONAL USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED,
UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. AOL, INC. PROVIDES
THE AOL SERVICE ON A COMMERCIALLY REASONABLE BASIS AND DOES NOT GUARANTEE THAT
MEMBERS WILL BE ABLE TO ACCESS THE SERVICE AT A TIME OR LOCATION OF THEIR
CHOOSING, OR THAT IT WILL HAVE ADEQUATE CAPACITY FOR THE SERVICE AS A WHOLE OR
FOR PARTICULAR PRODUCTS. AOL, INC.'S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY
WITH RESPECT TO USE OF AOL, AOL SOFTWARE, AND THE INTERNET SHALL BE THE
REPLACEMENT OF ANY AOL SOFTWARE FOUND TO BE DEFECTIVE. BECAUSE SOME STATES OR
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR
CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, AOL,
INC.'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. AOL, INC. DOES
NOT ENDORSE, WARRANT OR GUARANTEE ANY PRODUCT OR SERVICE OFFERED BY OR THROUGH
AOL, EXCEPT AS EXPRESSLY PROVIDED ELSEWHERE, AND WILL NOT BE A PARTY TO OR IN
ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF
PRODUCTS OR SERVICES.
9. INDEMNIFICATION
Upon AOL, Inc.'s request, Member agrees to defend, indemnify and hold
harmless AOL, Inc., its affiliated companies, its employees, contractors,
officers, directors, telecommunications providers, ICPs from all liabilities,
claims, and expenses, including attorneys' fees, that arise from breach of the
TOS by use of, or in connection with, the transmission of any Content on AOL or
the Internet by or through Member's master or sub-accounts. AOL, Inc. reserves
the right, at its own expense, to assume the exclusive defense and control of
any matter otherwise subject to indemnification by Member hereunder. In such
event, Member shall have no further obligation to provide indemnification for
such matter.
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10. TERMINATION
A. Either you or AOL, Inc. may terminate your membership at any time.
This is your sole right and remedy with respect to any dissatisfaction with AOL,
including, but not limited to, (1) any TOS term, policy or practice of AOL, Inc.
in operating AOL, (2) Content available through AOL or change therein, or (3)
any amount or type of fees, surcharges, billing methods, or change therein. You
can terminate your membership by delivering notice to AOL, Inc.'s Customer
Service Department at ▇-▇▇▇-▇▇▇-▇▇▇▇, or by sending your cancellation request
via US Mail to: AOL, ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇. Your termination will take
effect within a reasonable time after AOL, Inc.'s receipt of your notice as
described above.
B. In the event that your account is terminated or canceled, no refund,
including any monthly membership fees, will be granted; no online time or other
credits (e.g., points in an online game) will be credited to you or be converted
to cash or other form of reimbursement. Members whose accounts AOL, Inc. has
terminated may not access AOL without AOL Inc.'s prior express written
permission. Active AOL Members may not allow former Members or other agents
whose memberships have been terminated to use their accounts. Any delinquent or
unpaid accounts or accounts with unresolved issues with the Community Action
department or other AOL departments must be concluded before you may re-register
with AOL, Inc. AOL reserves the right to limit the number of memberships for a
Member to one, including trial offers.
11. LAW
A. To the extent any conflict between this agreement and the Rules
exists, this agreement shall take precedence. If any part of the TOS is held
invalid or unenforceable, that portion shall be construed consistent with
applicable law to reflect, as nearly as possible, the original intentions of the
parties, and the remaining portions remain in full force and effect. The laws of
the Commonwealth of Virginia, excluding its conflicts-of-law rules, govern the
TOS and your membership. As noted above, Member conduct may be subject to other
local, state, and national laws. Member expressly agrees that exclusive
jurisdiction for any claim or dispute resides in the courts of the Commonwealth
of Virginia. Member further agrees and expressly consents to the exercise of
personal jurisdiction in the Commonwealth of Virginia in connection with any
dispute or claim involving AOL, Inc.
B. You agree to abide by U.S. and other applicable export control laws
and not to transfer, by electronic transmission or otherwise, any Content or
software subject to restrictions under such laws to a national destination
prohibited under such laws, without first obtaining, and then complying with,
any requisite government authorization. You further agree not to upload to AOL
any data or software that cannot be exported without prior written government
authorization, including, but not limited to, certain types of encryption
software. This assurance and commitment shall survive termination of this
agreement. Control laws currently prohibit the export of the 128-bit version of
any browser, including Internet Explorer, available through AOL. Control laws
also prohibit nationals of Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria
from gaining access to certain Content on ▇▇▇.
▇▇
▇▇. LEGAL NOTICES
Under California Civil Code Section 1789.3, California Members are
entitled to the following specific consumer rights information:
1. Pricing Information. Current rates for using AOL may be obtained by
calling ▇-▇▇▇-▇▇▇-▇▇▇▇. AOL, Inc. reserves the right to change fees,
surcharges, monthly membership fees or to institute new fees at any time upon
thirty (30) days' prior notice, as provided for in the Terms of Service at
Section 3.
2. Complaints. The Complaint Assistance Unit of the Division of Consumer
Services of the Department of Consumer Affairs may be contacted in writing at
▇▇▇▇ ▇. ▇▇▇▇▇▇, #▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or by telephone at ▇-▇▇▇-▇▇▇-▇▇▇▇.
36
DEFINITIONS AND REFERENCES
"America Online," "AOL, Inc." or "we" = America Online, Inc.
"AOL" = The America Online(Registered) service
"Member" or "you" = A registered subscriber or authorized user of AOL
"Rules" = Rules of the Road
"TOS" = The Terms of Service and the Rules of the Road, collectively
"Effective Date" = Thirty (30) days after the date of the last TOS change as
posted in the Terms of Service area
"UBE" = Unsolicited bulk e-mail
"ICPs" = Interactive Content Providers
"Content" = Information, communications, software, photos, video, graphics,
music, sounds and other material and services, collectively
"Rights" = Copyrights, trademarks, and other intellectual and proprietary rights
"Public Areas" = Areas on AOL that are freely open to all Members, including,
but not limited to, public chat rooms, online forums, message boards, and
software libraries.
"AOL Community Space" = AOL programmed areas where new Content is created by
AOL, Inc., its affiliates, ICPs, or Members for participation in that area's
online community of interest, including, but not limited to, message boards,
online forums, chat rooms, software libraries, and web pages that are searchable
through AOL's web page search.
"Individual Information" = Any information, data or records that relate to your
AOL membership or use of AOL and identifies you or your individual Member
account.
"International Areas" = Areas within AOL containing International Content
"International Content" = Content originating from AOL Inc. and its affiliates,
other Members and users of AOL, ICPs, as well as other third parties which may
originate from countries other than the United States.
"PP2" or "Personal Publisher 2" = Product available to AOL Members to create
their own web site using AOL publishing tools.
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