CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.42
EXECUTION COPY
CONFIDENTIAL
AOLTW PROMOTIONAL AGREEMENT
This AOLTW Promotional Agreement together with Schedules I through V
attached hereto and made a part hereof (this "Agreement") is entered into as of
this 4th day of January, 2002 (the "Effective Date"), by and between AOL TIME
WARNER, INC. ("AOLTW"), a Delaware corporation, with offices at ▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, and GENUITY INC. ("GENUITY"), a Delaware corporation,
with offices at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. AOLTW and Genuity may be
referred to individually as a "Party" and collectively as the "Parties".
INTRODUCTION
AOLTW and Genuity each desires to enter into a marketing relationship
whereby AOLTW will set aside certain media inventory for the promotion of (a)
Genuity and Genuity's affiliates (if and to the extent otherwise consistent with
all the terms hereof as if such affiliate was Genuity); (b) certain products and
services of Genuity and/or Genuity's affiliates (if and to the extent otherwise
consistent with all the terms hereof as if such affiliate was Genuity); and (c)
certain other Genuity offerings, including partnerships; in each case, subject
to AOLTW's prior written approval (not to be unreasonably withheld or delayed).
This relationship is further described below and is subject to the terms and
conditions set forth in this Agreement. To the extent this Agreement requires
performance by an AOLTW-controlled subsidiary, AOLTW (in its capacity as
stockholder of such subsidiary) shall cause such subsidiary to perform in
accordance with the requirements of this Agreement.
TERMS
1. AOLTW PROMOTION OF GENUITY. The media placements to be provided to
Genuity hereunder (the "Media Placements") shall be allocated in the
following amounts to AOLTW media channels during each listed marketing
period of the Term, as defined in Section 4.1 below (such allocation, the
"Media Allocation," and each such marketing period, a "Marketing
Period"), subject to the terms of this Agreement, including without
limitation Section 2 below:
-------------------------------- -------------------------------------------------
MARKETING PERIOD MEDIA ALLOCATION
-------------------------------- -------------------------------------------------
Effective Date - Dec. 31, 2002 $[*MATERIAL OMITTED AND SEPARATELY FILED
("First Marketing Period") PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] dollars) net (e.g., after
deducting any applicable agency fees)
("Net") on AOLTW media (including the Online
Properties (defined below)), subject to the
terms and conditions of this Agreement (the
[*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT])
-------------------------------- -------------------------------------------------
Jan. 1 - Dec. 31, 2003 $[*MATERIAL OMITTED AND SEPARATELY FILED
("Second Marketing Period") PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] dollars) Net on AOLTW media
(including the Online Properties), subject to
the terms and conditions of this Agreement
(THE[*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT], and together with the [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT], the
"[*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT]")
-------------------------------- -------------------------------------------------
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CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.42
Genuity shall deliver to AOLTW a media plan which sets forth a calendar
of estimated and desired promotions, detailing the requested Media
Placements desired by Genuity, including unit size, and the timing and
frequency with which such Media Placements would run on specified AOLTW
media properties (the "Media Plan"). The Media Placements and media
properties shall be as reasonably requested by Genuity consistent with
the Media Plan, subject to [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT], and subject to
AOLTW's approval, not to be unreasonably withheld or delayed, and
subject to the other applicable terms and conditions hereof (e.g.,
online versus offline allocations and timing). Notwithstanding
anything to the contrary, AOLTW shall not be responsible for achieving
any targets or goals (e.g., business objectives or business goals),
including any in the Media Plan (other than any specific metrics if
and to the extent expressly agreed to in any Advertising Agreement).
During each applicable period of the Term (i.e., each six month
period as set forth in Section 2.2. below, each Marketing Period,
and in the aggregate), [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] of the value
of the Media Allocation (in each case, to the extent attributable to
such applicable period) shall be on the online properties owned and
controlled by [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] and the online properties
of [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] and certain other mutually agreed online AOLTW
properties (such agreement not to be unreasonably withheld or delayed)
(such properties, collectively the "Online Properties"). Any Media
Placements that are not reserved for the Online Properties may be
allocated to media owned and controlled by AOLTW and its subsidiaries,
consistent with the Media Plan, subject to [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT], and subject to AOLTW's approval, not to be unreasonably
withheld or delayed. The Media Placements shall be allocated[*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT], unless otherwise mutually agreed (e.g., to
account for seasonality, the Parties may agree to permit a portion of
the Media Placements that would otherwise be utilized in the
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] of the [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] to be utilized
in the [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] of the [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT].
The products, services, offerings and entities to be promoted by Genuity
shall be subject to AOLTW's prior written approval (not to be
unreasonably withheld or delayed); provided that, AOLTW hereby approves
the products, services and joint offerings to the extent listed on
Schedule III ("Permitted Products"), which such Schedule III of Permitted
Products may be amended by the Parties from time to time to add
additional products, services, and joint offerings, subject to AOLTW's
prior written approval, which shall not be unreasonably withheld or
delayed. In no event shall the Media Placements be used to promote any
product, service or entity which is reasonably competitive with the AOL
network (or any brand, property or significant functionality or
significant portion thereof) or with one or more of the principal
products or services offered through the AOL network (including without
limitation any Interactive Service) (collectively, "Competitive
Products") nor shall the online Media Placements link to an interactive
site which intentionally and actively promotes any Competitive Products;
provided that mere press releases and case studies shall not be deemed
promotions. Notwithstanding anything to the contrary, (a) AOLTW hereby
approves the Permitted Products and such Permitted Products shall not be
deemed Competitive Products hereunder or under any Advertising Agreement;
and (b) if AOLTW reasonably believes in good faith that any promotions of
any Interactive Service on any interactive site linked to from the Media
Placements by Genuity are reasonably problematic to AOLTW, the Parties
shall work together to find a reasonable and appropriate remedy.
2. ADVERTISING AGREEMENTS.
2.1 EXECUTION OF ADVERTISING AGREEMENTS. Delivery by AOLTW of each set
of Media Placements hereunder shall be subject to the execution by
and between Genuity and the appropriate AOLTW subsidiary of mutually
agreed versions of such AOLTW subsidiary's standard agreement(s) for
purchasing media (e.g., in the case of broadcast inventory, the
appropriate AOLTW subsidiary's order
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CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.42
letter (as mutually agreed) with [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL Treatment]), in
each case in accordance with such AOLTW subsidiary's then-standard
practices for sale of media inventory (each such agreement
hereunder, an "Advertising Agreement"). Advertising Agreements for
online carriage shall be pursuant to the terms set forth in Schedule
II (the Form of Insertion Order) attached hereto.
2.2 SPECIFIC PLACEMENTS.
2.2.1 NEGOTIATION OF SPECIFIC CARRIAGE PLANS. Each Advertising
Agreement will set forth the specific media inventory to be
provided, as reasonably and mutually agreed by AOLTW and
Genuity. The Parties shall use all commercially reasonable
efforts and work in good faith to reach agreement on the
specific Media Placements and the specific media properties
on which the Media Placements will run consistent with the
Media Plan, subject to [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT], and subject to AOLTW's approval, not to be
unreasonably withheld or delayed, and subject to the other
applicable terms and conditions hereof ([*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] allocations and [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]) for each [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] by the date which is [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] prior to the start of such applicable [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] provided that the Parties shall
agree on the first Advertising Agreement for online carriage
for the First Marketing Period by [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT]. If after such commercially reasonable and good
faith discussions, the Parties are unable to reach mutual
agreement on Advertising Agreements by the applicable
deadlines in this Section 2.2., then the Parties may
escalate such issue to a `Senior Management Committee'
comprised of an equal number of senior officers of each Party
to discuss and resolve such issue.
2.2.2 DEFAULT CARRIAGE PLANS. Notwithstanding anything to the
contrary, in the absence of such mutual agreement on such
Advertising Agreements for online carriage by the dates
previously referred to in Section 2.2.1 above despite the
Parties' commercially reasonable and good faith efforts,
AOLTW shall have the right (but not the obligation), after
using reasonable efforts to deliver approximately five (5)
business days' prior notice to Genuity, to run a reasonable
default online carriage plan designed by AOLTW using good
faith efforts to incorporate and be consistent with
reasonable and mutually agreed aspects of the Media Plan (if
and assuming a reasonable one has been delivered by such
date) and mutually agreed portions of an online carriage
plan, until such time as an online carriage plan is mutually
agreed to pursuant to an Advertising Agreement. If (and so
long as) the Parties have not executed a mutually agreed
Advertising Agreement for online carriage for the Second
Marketing Period by [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT],
despite the Parties' commercially reasonable and good faith
efforts, then AOL shall have the right (but not the
obligation), after using reasonable efforts to deliver
approximately five (5) business days' prior notice to
Genuity, to continue to run the online carriage plan that was
in effect for the period immediately preceding [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] which was mutually agreed to between
the Parties, if any, subject to [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]of such online inventory, or to the
extent any such online carriage is not available, then
online carriage that is [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
([*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] on an [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT], e.g., based on a variety of
factors, [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL
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CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.42
TREATMENT], etc.) thereto (the "Default Carriage"), until
such time as a new carriage plan is mutually agreed to
pursuant to an Advertising Agreement. It is expressly agreed
by the Parties that the Parties shall be required to continue
to use commercially reasonable and good faith efforts to come
to agreement on an online carriage plan and that neither
Party shall unreasonably withhold or delay its agreement
despite the passage of the dates by which the Parties shall
agree on Advertising Agreements for online carriage as set
forth in this Section 2.2. For any online carriage run by
AOLTW pursuant to any online default carriage plan as
expressly permitted herein above, Genuity shall pay AOLTW for
such online default carriage within [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] of the start date of such plan.
2.2.3 TIMING. Genuity agrees to develop it's Media Plan (and
request Media Placements) in a manner to [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] Media Placements reasonably
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] (as set forth below)
of the Term, subject to [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
and goals (it being understood that, notwithstanding anything
to the contrary, AOLTW shall not be responsible for achieving
any targets or goals (e.g., business objectives or business
goals), in the Media Plan, other than any specific metrics if
and to the extent expressly agreed to in any Advertising
Agreement), and other [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT],
provided that in any event Genuity shall order (e.g., sign
mutually agreed Advertising Agreements for) and use (e.g.,
run) (a) [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT] of [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] dollars (US $[*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT]), Net, worth of its Media Placements in each of
the following [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
periods of the Term: (i) [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT];
(ii) [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT]; (iii) [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]; and (iv) [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] (each, a "[*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]" and
together with the [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT], the
"[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT]"), and (b) [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] of Media Placements worth each
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] by [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] of each [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] of the Term.
2.3 DELIVERY OF MEDIA PLACEMENTS. Subject to Section 6.6 hereof, once an
Advertising Agreement has been executed with respect to a set of
Media Placements, delivery of such applicable Media Placements shall
be governed by the relevant Advertising Agreement (provided that,
prior to the execution of an applicable online Advertising
Agreement, online promotions (e.g., under any default carriage plan)
shall be subject to the terms of Schedule II). Subject to the terms
hereof, if and to the extent Genuity does not execute Advertising
Agreement(s) totaling the [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] by the
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT] after the start of each applicable
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT] corresponding to such [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT
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CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.42
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] (the "[*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]"), then Genuity shall [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] the [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT], as of the [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT], (i) the total required [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] for the applicable [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] (ii)
the [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] then [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] in such [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] under then executed
Advertising Agreements for the applicable [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT], by the date which is [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] days
after the [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT].
2.4 MEDIA PLANS. During the Term, the Parties shall meet, in person or
by teleconference, no fewer than once per month to discuss and
evaluate the Media Plan, including implementation, direction, goals
and desired results of the Media Placements. The Parties will use
good faith efforts to accommodate Genuity's reasonable Media Plan
(e.g., by endeavoring to reach the appropriate demographic with
certain targeted inventory, or by including Media Placements in
media properties with appropriate target audiences).
2.5 EXTRAORDINARY EVENTS. The Parties agree that the deadlines in
Section 2.2 may be briefly (e.g., for up to two (2) weeks) extended
by mutual written agreement (not to be unreasonably withheld or
delayed), if and to the extent necessary due to extraordinary,
significant and unforeseen circumstances having a material adverse
effect on the timing of the Media Plan, despite reasonable attempts
and diligence of Genuity (e.g., acts of terrorism, a planned product
launch which is to be significantly promoted hereunder is
significantly and unexpectedly delayed (necessitating new creative
to be prepared at the last minute) despite reasonable attempts and
diligence of Genuity to launch).
2.6 [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT]OF INVENTORY. After the date which is
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT] from the Effective Date hereof, if the
Parties mutually agree, based on mutually agreed upon objective
industry metrics including without limitation, the metrics set forth
on Schedule V (Objective Metrics for [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT]), that not due to any fault of Genuity, the Parties
mutually agree that AOLTW does not have [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT](on any [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]) which is [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] as reasonably set forth in and consistent
with the reasonable Media Plan during [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] (as defined below) (in each instance an "[*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]"), if and to the extent the Parties
mutually agree that [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
(a) is a change in the [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]of
AOLTW's properties resulting in a [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] to the [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] of AOLTW's properties such that
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT]that is substantially
similar in [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]to that
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT]to Genuity as of the
Effective Date is no longer [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT](e.g., without limitation, (A) the [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] by [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
of [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] or the complete
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT]of all [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT], but (B) if [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
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CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.42
TREATMENT] is no longer [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] but AOLTW has obtained a new [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] in its place with a substantially
similar [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] and
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] (e.g., with similar
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT]as set forth on
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT]), then such shall
not constitute an [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]); and
(b) is directly related to (x) specific Genuity [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] under any then existing Advertising
Agreement, (y) specific [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
from a previous Advertising Agreement which had not been
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] by Genuity (i.e.,
which Genuity [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] to
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT]) prior to the
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT], or (z) specific
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] which was
available and being [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
by Genuity from AOLTW reasonably prior to such [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] (in any such case, "[*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]");
then the Parties shall discuss in good faith an appropriate remedy,
which may include (i) extending the timing on Genuity's [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] to [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] the dollar
amount directly attributable to the [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] to a later period during the Term of the Agreement (e.g.,
allowing Genuity to [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] such amount in a
subsequent [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT]), or (ii) a [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] of the applicable [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] equal to the value of the [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] in media inventory for the [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] in which the [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] occurred
(up to a [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] of the dollar amount
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT] to the [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT]), in each case, taking into account subsequent new
availability of inventory to [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] such
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT] or [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] . If
after such good faith discussions, the Parties are unable to reach
an amicable solution, then the Parties may, on an expedited basis,
escalate such issue to a `Senior Management Committee' comprised of
an equal number of senior officers of each Party to discuss and
resolve such issue.
"[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT]" shall mean each [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] as set forth in Section 2.2 or any[*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT].
The Parties expressly agree that wherever in this Section 2.6 they
are required to mutually agree, they shall not unreasonably withhold
or delay such agreement.
3. PAYMENTS. In addition to Genuity's other obligations herein (e.g.,
regarding the [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT], the [*MATERIAL OMITTED AND
CONFIDENTIAL
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6
CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.42
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT],
such as in Section 1 and Section 2.2), Genuity shall pay to AOLTW the
amounts set forth in this Agreement in accordance with the Advertising
Agreements according to the standard and customary practices of the
applicable AOLTW subsidiary applicable to the specific media (e.g.,
Genuity shall [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] for all [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
and [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT] Media Placements [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
or executing the applicable Advertising Agreement, and shall [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] for [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT], etc.).
4. TERM; TERMINATION.
4.1 TERM. The term of this Agreement (the "Term") shall commence on the
Effective Date and continue through and including December 31, 2003,
unless terminated earlier as provided herein.
4.2 TERMINATION FOR MATERIAL BREACH. Either Party may terminate this
Agreement at any time in the event of a material breach of this
Agreement by the other Party which remains uncured after thirty (30)
days written notice thereof to the other Party; provided that the
cure period with respect to any [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] shall
be the later of [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT] days from (i) the
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT] for such [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] provided for herein and (ii) the date on which AOLTW
delivers notice to Genuity of such [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]. If
AOLTW (or its applicable subsidiary) terminates any Advertising
Agreement due to an uncured material breach by Genuity of it's
obligations under any Advertising Agreement or under this Agreement,
Genuity shall remain liable for all payments hereunder and
thereunder; provided that breach by Genuity of any Advertising
Agreement shall not be deemed a breach of any other agreement
between the Parties. If Genuity terminates this Agreement or any
specific Advertising Agreement due to an uncured material breach by
AOLTW or the relevant AOLTW subsidiary of such agreement,
respectively, then Genuity shall only be liable under such
applicable agreement to pay AOLTW or the relevant subsidiary for the
media inventory actually used by Genuity thereunder up to the date
of termination, unless otherwise agreed by Genuity; provided that
breach by AOLTW or the relevant AOLTW subsidiary of any [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] shall not be [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] a [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] of [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] between the parties (e.g., without limitation, breach by
AOLTW of any [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] shall not be [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] a [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] of [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]); provided further that, in the event of a
termination of any specific Advertising Agreement in accordance with
its terms (a "Terminated Ad Agreement") for the material breach by
AOLTW or the relevant AOLTW subsidiary, Genuity and AOLTW shall
enter into [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] for the [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] (i.e., [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]), which is [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] on an [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] on a
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT
CONFIDENTIAL
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CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.42
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] of [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] (such as [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] and/or [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]) to [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] any
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT] that would have been [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] under such Terminated Ad Agreement but [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] as of the date of such termination within a reasonable
time of Genuity's termination of the Terminated Ad Agreement (e.g.,
within [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT], assuming commercially
reasonable good faith efforts by the Parties to negotiate).
4.3 TERMINATION ON CHANGE OF CONTROL. In the event of a Change of
Control of [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] resulting in control of
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT] by an [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] or the
acquisition by [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT] of a controlling interest
in an [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] may (i) terminate this
Agreement by providing thirty (30) days written notice to [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT], or (ii) [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] the
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT] elements of the [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] and [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT] or [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] to [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] determined by [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] (it being understood and agreed that if
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT] so elects to [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] to this clause (ii), then the [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] of [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] to be [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] shall be as mutually agreed by AOLTW and Genuity).
4.3.1 "Change of Control" means (a) the consummation of a
reorganization, merger or consolidation or sale or other
disposition of substantially all of the assets of a party or
(b) the acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended) of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under
such Act) of more than 50% of either (i) the then outstanding
shares of common stock of such party; or (ii) the combined
voting power of the then outstanding voting securities of
such party entitled to vote generally in the election of
directors.
4.3.2 "[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT]" means any of the
entities listed on Schedule I hereof (as may be reasonably
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] by [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] from time to time).
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CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.42
4.4 TERMINATION FOR BANKRUPTCY/INSOLVENCY. Either Party may terminate
this Agreement immediately following written notice to the other
Party if the other Party (i) ceases to do business in the normal
course, (ii) becomes or is declared insolvent or bankrupt, (iii) is
the subject of any proceeding related to its liquidation or
insolvency (whether voluntary or involuntary) which is not dismissed
within ninety (90) calendar days or (iv) makes an assignment for the
benefit of creditors.
5. VALUE-ADDED SERVICES. The Parties shall discuss in good faith from time
to time the possibility of AOLTW providing Genuity with certain
value-added services (e.g., [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]) due to the nature
and extent of the relationship (such as [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT], etc.).
6. MISCELLANEOUS.
6.1 PRESS RELEASES AND PUBLIC STATEMENTS. Each Party shall submit to the
other Party, for its prior written approval, any press release or
similar public statement ("Press Release") regarding the
transactions contemplated hereunder; provided, however, that if the
Parties release an initial Press Release to the public, subsequent
factual references as to the existence of a business relationship
between the Parties, or restating facts which are in the initial
Press Release, shall not require prior approval.
6.2 NOTICE. All notices required or permitted to be made under this
Agreement shall be in writing and shall be deemed to have been duly
given (i) on the delivery date if delivered 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 (5) 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 each
case if and to the extent delivered as follows:
If to AOLTW:
AOL Time Warner, Inc.
Attn: President, Business Affairs
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
With copies to:
AOL Time Warner, Inc.
Attn: General Counsel
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
If to Genuity:
Genuity Inc.
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇
CONFIDENTIAL
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CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.42
▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
Genuity Inc.
Office of the General Counsel
Attn: General Counsel and Executive Vice President
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
6.3 CONFIDENTIALITY.
6.3.1 Genuity and AOLTW anticipate that each party may disclose
("Discloser") certain confidential information to the other
party ("Recipient") for the purpose of performing its
obligations under this Agreement ("Permitted Purpose").
"Confidential Information" shall mean any information
relating to or disclosed in the course of this Agreement,
which is or should be reasonably understood to be
confidential or proprietary to the Discloser, whether
disclosed to Recipient, orally, visually or in electronic or
tangible form or otherwise, relating to Discloser's business,
products, processes and services, including, without
limitation, the material terms of this Agreement, information
about customers and users, technical processes and formulas,
source codes, product designs, sales, cost and other
unpublished financial information, product and business
plans, projections, and marketing data, trade secrets,
intellectual property, inventions, ideas, concepts,
technology, specifications, designs, methods, systems,
computer programs, works of authorship, financial
information, strategies, information which Discloser is under
an obligation to keep confidential and other confidential or
proprietary information, including, without limitation, such
information of Discloser's affiliates.
6.3.2 Confidential Information shall not include any information
that: (i) was publicly known at the time of disclosure, or
becomes publicly known through no fault of or breach by
Recipient; (ii) was known to Recipient without an obligation
of confidentiality prior to disclosure; (iii) was rightfully
received by Recipient from a third party without a duty of
confidentiality; and/or (iv) was developed by Recipient
independently.
6.3.3 Recipient shall maintain in confidence and shall not disclose
Discloser's Confidential Information, using the same degree
of care, but no less than reasonable care, as Recipient uses
to protect its own confidential information of a similar
nature. Recipient may disclose the Discloser's Confidential
Information only to Recipient's employees, consultants,
independent contractors and the employees, consultants and
independent contractors of Recipient's affiliates who have a
need to know such Confidential Information, who are made
aware of the Confidential Information's confidential nature,
and who are under an obligation to protect confidential
information. Recipient may also disclose Confidential
Information to its legal and financial advisors and auditors
who have a need to know the Confidential Information and are
under a professional obligation to maintain such
confidentiality.
6.3.4 Recipient may use the Confidential Information only for a
Permitted Purpose, as defined in Section 6.3.1, and shall not
otherwise use or disclose the Confidential Information for
any other purpose; provided that, notwithstanding anything to
the contrary, [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] shall
be [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] to [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] in its [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] (without
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CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.42
having to obtain [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] prior
written consent) and to [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
from such [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT] in an [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] (i.e., [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] with other [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] in a
manner [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] of [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]).
6.3.5 Notwithstanding anything to the contrary, [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] may [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
in the [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] the [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] in the [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] of only [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT], and
the [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] (which such
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] are not [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] of [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
listed on [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT]), who (i) have a
need to know the Confidential Information under this
Agreement solely for the Permitted Purpose, (ii) are made
aware of the Confidential Information's confidential nature,
and (iii) are under an obligation to protect confidential
information; provided that, [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
is [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] to the [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] to [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
the [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT]; and provided further
that, no [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT] to [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] any [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
(except to the limited extent expressly [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] in this [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT]), [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT], or [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] is [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
to [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT].
6.3.6 Upon written demand by Discloser or upon termination of this
Agreement, Recipient agrees to promptly return or destroy
(with written certification of such destruction to Discloser)
all materials that disclose or embody Confidential
Information.
6.3.7 Discloser does not grant a license, by implication or
otherwise, under any of its copyrights, patents, trade
secrets, trademarks, tradename rights or other intellectual
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CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.42
property rights as a result of the disclosure of the
Confidential Information to Recipient or as a result of this
Agreement. As between the parties, all Confidential
Information shall remain the exclusive property of the
Discloser.
6.3.8 Neither party shall decompile, reverse engineer or
disassemble any portion of the other party's hardware or
software.
6.3.9 Recipient agrees not to remove any proprietary rights legend
from materials disclosing or embodying Confidential
Information.
6.3.10 Notwithstanding anything to the contrary, either Party may
disclose 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, Discloser shall provide five (5) business days' prior
written notice, if and to the extent possible, of such
proposed disclosure to Recipient and shall submit a request
to the applicable governing body that this Agreement (or
portions thereof) receive confidential treatment to the
fullest extent permitted under applicable laws, rules and
regulations.
6.3.11 All rights and obligations with respect to Confidential
Information disclosed to Recipient, shall terminate three (3)
years from the date of the last disclosure of Confidential
Information by either party during the Term.
6.3.12 Recipient acknowledges that Discloser shall not have an
adequate remedy in the event that this Agreement is breached
by Recipient and that Discloser may suffer irreparable damage
and injury in such event, and that, in addition to any other
available rights and remedies, Discloser shall be entitled to
seek an injunction restricting Recipient from committing or
continuing any violation of this Section 6.3.
6.4 DISPUTE RESOLUTION. In the event of a dispute under this Agreement,
the Parties will work in good faith to promptly resolve the dispute;
provided, however, that if they cannot do so, the dispute will be
submitted to a committee made up of an equal number of senior
executives from each of Genuity and AOLTW (or any relevant AOLTW
subsidiary) for resolution within a [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] period. Neither Party will seek, nor will be entitled to
seek, [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] of the dispute unless and
until they have been unable to amicably resolve the dispute as
described in the previous sentence. In such an event, any claim or
action will be brought in a court of competent jurisdiction
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT]. Each Party irrevocably consents to the
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT] of the courts of the [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] and the federal courts situated in the [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT], over any and all actions to enforce claims or to recover
damages or other relief in connection with any claims under this
Agreement.
6.5 LIMITATION OF LIABILITY. Except for any [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] herein or in any Advertising Agreement, and except for a
party's [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] or [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] herein or in any Advertising Agreement, neither Party
shall be liable to the other Party for indirect, incidental,
consequential, special or exemplary damages (including lost profits)
(even if that Party has been advised of the possibility of such
damages), arising from a violation of this Agreement. Except for any
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT]) herein or in any Advertising Agreement,
and except for a party's [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT], neither
party shall be liable to the other party under this Agreement or any
Advertising Agreement for direct, objectively measurable damages (or
in the case of breaches of confidentiality,
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CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.42
for direct, indirect, incidental, consequential, special or
exemplary damages (including lost profits)) for [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] the [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT] hereof (in addition to
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT] hereunder).
6.6 CONFLICTS. In the event of an express conflict between the terms of
this Agreement and the terms of any of the Advertising Agreements,
the terms of this Agreement shall control.
6.7 DISCLAIMER OF WARRANTIES. Except as expressly set forth in this
Agreement (or in a Advertising Agreement), neither Party makes any,
and each Party hereby specifically disclaims any, representations or
warranties, express or implied.
6.8 APPLICABLE LAW; JURISDICTION. Except as otherwise expressly provided
herein, this Agreement will be interpreted, construed and enforced
in all respects in accordance with the laws of the State of
New York
except for its conflicts of laws principles. Each Party hereby
irrevocably consents to the exclusive jurisdiction of the courts of
the State of
New York and the federal courts situated in the State
of
New York in connection with any action arising under this
Agreement.
6.9 ASSIGNMENT. Neither party will assign this Agreement or any right,
interest or benefit under this Agreement without the prior written
consent of the other party, which consent shall not be unreasonably
withheld, delayed or conditioned; provided that [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] may assign to its affiliates. Assumption of the Agreement
by any successor to either Party (including, without limitation, by
way of merger or consolidation) will be subject to the other Party's
prior written approval, which approval shall not be unreasonably
withheld, delayed or conditioned. Subject to the foregoing, this
Agreement will be fully binding upon, inure to the benefit of and be
enforceable by the Parties hereto and their respective successors
and permitted assigns.
6.10 ENTIRE AGREEMENT AND SURVIVAL. This Agreement (along with any
Advertising Agreement executed hereunder) sets forth the entire
agreement and supersedes any and all prior agreements of the
Parties, whether written or oral, with respect to the transactions
set forth herein. In the event that any provision of this Agreement
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 intentions 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. Any provision which by its nature
would survive the termination or expiration of this Agreement shall
survive the termination or expiration of this Agreement.
6.11 MODIFICATION, AMENDMENT AND WAIVER. No change, amendment or
modification of any provision of this Agreement will be valid unless
set forth in a written instrument signed by the Party subject to
enforcement of such amendment, and in the case of AOLTW, by an
executive of at least Vice President level, and in the case of
Genuity, by an executive of at least Senior Vice President level.
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.
6.12 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.
6.13 COUNTERPARTS. This Agreement may be executed by facsimile and in
counterparts.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.42
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
Effective Date.
AOL TIME WARNER, INC.
GENUITY INC.
By: /s/ AOL TIME WARNER, INC. By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------- ---------------------------
Name: Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Title: Senior Vice President
Date: Date:
SCHEDULES TO AOLTW
PROMOTIONAL AGREEMENT:
--SCHEDULE I [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT]
--SCHEDULE II FORM OF AOL INSERTION ORDER (ONLINE)
--SCHEDULE III PERMITTED PRODUCTS
--SCHEDULE IV [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] OR PURPOSES OF
SECTION 6.3.5
--SCHEDULE V [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT]
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CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.42
SCHEDULE I
TO AOLTW
PROMOTIONAL AGREEMENT
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]*
CONFIDENTIAL
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
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[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
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[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
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[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
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[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
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[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
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[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]
EUROPE / ITALY / SPAIN / NETHERLANDS -- ALL OF THE ABOVE, PLUS:
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]
LATIN AMERICA, ASIA, ETC.:
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]
----------------------------------------------------------------------
* This list is [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] only and subject to reasonable
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]
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CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.42
SCHEDULE II
TO AOLTW
PROMOTIONAL AGREEMENT
FORM OF
AOL INSERTION ORDER
================================================
AOL INSERTION ORDER
================================================
CONTRACT #:________________________________
AOL SALESPERSON:___________________________ [AOL LOGO]
SALES COORDINATOR:_________________________
SALES PLANNER:_____________________________
EFFECTIVE DATE:____________________________
CREDIT APPROVAL RECEIVED:__________________
---------------------------------------- ------------------------------------------------- ----------------------------------------
ADVERTISER ADVERTISING AGENCY
---------------------------------------- ------------------------------------------------- ----------------------------------------
Contact Person [TBD]
---------------------------------------- ------------------------------------------------- ----------------------------------------
Company Name GENUITY INC. ("ADVERTISER" OR "GENUITY")
---------------------------------------- ------------------------------------------------- ----------------------------------------
Address - Line 1 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
---------------------------------------- ------------------------------------------------- ----------------------------------------
▇▇▇▇▇▇▇ - ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------- ------------------------------------------------- ----------------------------------------
Phone # [TBD]
---------------------------------------- ------------------------------------------------- ----------------------------------------
Fax # [TBD]
---------------------------------------- ------------------------------------------------- ----------------------------------------
Email [TBD]
---------------------------------------- ------------------------------------------------- ----------------------------------------
SIC Code
---------------------------------------- ------------------------------------------------- ----------------------------------------
Advertiser IAB Category
---------------------------------------- ------------------------------------------------- ----------------------------------------
---------------------------------------- ------------------------------------------------ -----------------------------------------
BILLING INFORMATION
---------------------------------------- ------------------------------------------------ -----------------------------------------
Send Invoices to (choose one): ADVERTISER AGENCY
---------------------------------------- ------------------------------------------------ -----------------------------------------
Advertiser or Agency Billing Contact
Person
---------------------------------------- ------------------------------------------------ -----------------------------------------
Company Name
---------------------------------------- ------------------------------------------------ -----------------------------------------
Billing Address - Line 1
---------------------------------------- ------------------------------------------------ -----------------------------------------
Billing Address - Line 2
---------------------------------------- ------------------------------------------------ -----------------------------------------
Billing Phone #
---------------------------------------- ------------------------------------------------ -----------------------------------------
Billing Fax #
---------------------------------------- ------------------------------------------------ -----------------------------------------
Billing Email Address
---------------------------------------- ------------------------------------------------ -----------------------------------------
P.O. #, if applicable
-----------------------------------------------------------------------------------------------------------------------------------
16
CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.42
================================================================================
PAYMENT SCHEDULE:
All amounts payable by Advertiser hereunder shall be [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] upon
execution hereof to America Online, Inc. ("AOL"), in immediately available,
non-refundable U.S. funds wired to the "America Online" account, Account Number
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] at [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT]. Such amounts, when paid, shall be
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] as defined in and pursuant to that certain AOLTW
Promotional Agreement between AOL Time Warner and Advertiser, dated as of
January 4, 2002 (the "AOLTW
Promotional Agreement").
All amounts not paid when due and payable will bear interest from the due date
at the rate of [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] percent [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]%) or the
maximum percentage allowed by law, whichever is lower. In the event of any
questions regarding a payment made (or expected to be made) by Genuity to AOL,
AOL may contact [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT]
Genuity Inc., ▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT]or [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT],
Genuity Inc., ▇
▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]. Subject to Section
9 of the Standard Terms attached hereto, in the event of [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT], AOL
reserves the right to [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] this AOL Advertising Insertion Order
Agreement (the "Insertion Order") with written notice to Advertiser.
================================================================================
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CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.42
ADVERTISING PURCHASE SUMMARY
(SEE DETAILED CARRIAGE PLAN ON EXHIBIT A)
-------------------------------------- ------------------------------------- ---------------------------------------------------
TOTAL PRICE TOTAL IMPRESSIONS
-------------------------------------- ------------------------------------- ---------------------------------------------------
[*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]
-------------------------------------- ------------------------------------- ---------------------------------------------------
[*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]
-------------------------------------- ------------------------------------- ---------------------------------------------------
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FILED PURSUANT TO AN APPLICATION FOR
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FILED PURSUANT TO AN APPLICATION FOR
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FILED PURSUANT TO AN APPLICATION FOR
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FILED PURSUANT TO AN APPLICATION FOR
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FILED PURSUANT TO AN APPLICATION FOR
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-------------------------------------- ------------------------------------- ---------------------------------------------------
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FILED PURSUANT TO AN APPLICATION FOR
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-------------------------------------- ------------------------------------- ---------------------------------------------------
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FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]
-------------------------------------- ------------------------------------- ---------------------------------------------------
[*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]
-------------------------------------- ------------------------------------- ---------------------------------------------------
------------------------------------- ---------------------------------------------------
NET PURCHASE PRICE TOTAL GUARANTEED IMPRESSIONS
------------------------------------- ---------------------------------------------------
$
------------------------------------- ---------------------------------------------------
1. SITE AND PRODUCTS
The HTTP/URL(s) address to be connected to the Advertisement initially
shall be (subject to the terms hereof): [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] and any
other sites designated by Advertiser and approved in writing by AOL,
which approval shall not be unreasonably withheld or delayed
(COLLECTIVELY THE "ADVERTISER SITE").
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CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.42
The products and/or services to be offered or promoted by Advertiser in
the Advertisements are as listed on Exhibit D attached hereto and made a
part hereof, or as otherwise mutually agreed (the "Advertiser Products").
Carriage Plan is attached hereto on Exhibit A.
2. IMPRESSIONS COMMITMENT. In the event AOL delivers the impression
commitment provided for hereunder prior to the display stop date, AOL
may, at its option and notice to Genuity, discontinue display at such
earlier time. Any guarantees are to impressions (as measured by AOL in
accordance with its standard methodologies and protocols), not
"click-throughs." In the event there is (or will be in AOL's reasonable
judgment) a shortfall in impressions as of the end of a display period (a
"Shortfall"), such Shortfall shall not be considered a breach of this
Insertion Order by AOL; instead, AOL will provide Advertiser, with
"makegood" impressions through "run of service" advertisement placements
on the AOL Network which have a total value, based on the rates contained
in AOL's advertising rate card as of the date first written above, equal
to the value of the Shortfall. AOL reserves the right to alter Advertiser
flight dates to accommodate trafficking needs or other operational needs;
provided that, in such cases, AOL will make available to Advertiser
reasonably equivalent flight(s) as mutually agreed.
3. NAVIGATION. Advertiser shall not inhibit continuous navigational ability
for AOL or users to return to the appropriate AOL Time Warner online
property from which they came to the Advertiser Site (e.g., the point on
the AOL Network from which the Advertiser Site is linked). Advertiser
acknowledges that, if and to the extent Advertiser has any shopping
placements, AOL may place a "Shop @" toolbar containing branding, links
(or similar navigational aide) to other portions of the AOL Network and
shopping-related information (such toolbar elements may include links or
access to product reviews, merchant ratings, certified merchant
accreditation, shopping comparison tools, and/or any other shopping
components designated by AOL) on each page of the Advertiser Site for
traffic coming from the AOL Network.
4. ADVERTISER ARTWORK. In the event that all necessary artwork and active
URL's are not provided to AOL at least three (3) business days prior to
the display start date, all impressions to the relevant advertising
inventory from and after the display start date shall count toward the
Total Impressions and Advertiser shall remain liable for all payments
hereunder notwithstanding AOL's inability to display the Advertisement.
AOL shall be entitled to run "house" advertisements in the relevant
advertising inventory until three (3) business days after receipt of all
necessary artwork and active URL's.
5. TERM. Unless earlier terminated as set forth herein, the term of this
Insertion Order will commence on the Effective Date and end on [TBD:
___________].
6. ADDITIONAL TERMS. The additional terms and conditions set forth in the
Carriage Plan on Exhibit A, the Additional Operating Terms on Exhibit B,
AOL's standard advertising terms and conditions (the "Standard Terms"),
attached hereto as Exhibit C, and Exhibit D are hereby incorporated by
reference into this Insertion Order.
AUTHORIZED SIGNATURES
In order to bind the parties to this Insertion Order, their duly authorized
representatives have signed their names below on the dates indicated. This
Insertion Order (including the Additional Terms and the Standard Terms
incorporated by reference) shall be binding on both parties when signed on
behalf of each party and delivered to the other party (which delivery may be
accomplished by facsimile transmission of the signature pages hereto).
AMERICA ONLINE, INC. ADVERTISER
By: By:
------------------------------ ------------------------------
Print Name: Print Name:
---------------------- -----------------------
Title: Title:
--------------------------- ---------------------------
Date: Date:
---------------------------- ----------------------------
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CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.42
ADDITIONAL TERMS:
EXHIBIT A -- CARRIAGE PLAN
EXHIBIT B -- ADDITIONAL OPERATIONAL TERMS
EXHIBIT C -- STANDARD TERMS
EXHIBIT D -- PERMITTED PRODUCTS
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CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.42
EXHIBIT A
TO INSERTION ORDER
CARRIAGE PLAN(1)
[SPECIFIC CARRIAGE PLAN TO BE ADDED]
--------
(1) With respect to any inventory designated as "EBAY - PUBLIC" (or similar
designation of inventory on the publicly available version of EBay, Inc.'s
primary interactive site), this Insertion Order incorporates by reference the
EBay terms and conditions (the "EBay Ad Terms") which provide, among other
things, that EBay is an express third party beneficiary of this Insertion Order.
The EBay Ad Terms appear at keyword "EBay Ad Terms 1" on the U.S.-based America
Online brand service and at "▇▇▇▇://▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇▇." A
hard copy of the EBay terms and will be provided to Advertiser upon request.
ADVERTISER ACKNOWLEDGES THAT IT HAS BEEN PROVIDED AN OPPORTUNITY TO REVIEW THE
EBAY AD TERMS AND AGREES TO BE BOUND BY THEM.
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CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.42
EXHIBIT B
TO INSERTION ORDER
ADDITIONAL OPERATIONAL TERMS
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CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.42
1. ADVERTISER SITE INFRASTRUCTURE. Advertiser will be responsible for all
communications, hosting and connectivity costs and expenses associated
with the Advertiser Site. Advertiser will provide all hardware, software,
telecommunications lines and other infrastructure necessary to meet
traffic demands on the Advertiser Site from the AOL Network. Advertiser
will design and implement the network between the AOL Service and
Advertiser Site such that (i) no single component failure will have a
materially adverse impact on AOL Members seeking to reach the Advertiser
Site from the AOL Network and (ii) no single line under material control
by Advertiser will run at more than 70% average utilization for a
5-minute peak in a daily period. In the event that Advertiser elects to
create a custom version of the Advertiser Site in order to comply with
the terms of this Insertion Order, Advertiser will bear responsibility
for all aspects of the implementation, management and cost of such
customized site.
2. OPTIMIZATION; SPEED. Advertiser will use commercially reasonable efforts
to ensure that: (a) the functionality and features within the Advertiser
Site are optimized for the client software then in use by AOL Members;
and (b) the Advertiser Site is designed and populated in a manner that
minimizes delays when AOL Members attempt to access such site. At a
minimum, Advertiser will ensure that the Advertiser Site's data transfers
(defined as database retrieval from time application server requests and
sends data to webserver) initiate within fewer than five (5) seconds on
average. Prior to commercial launch of any material promotions described
herein, Advertiser will permit AOL to conduct performance and load
testing of the Advertiser Site (in person (with five (5) days' prior
written notice) or through remote communications), with such commercial
launch not to commence until such time as AOL is reasonably satisfied
with the results of any such testing.
3. USER INTERFACE. Advertiser will maintain a graphical user interface
within the Advertiser Site that is competitive in all material respects
with interfaces of other similar sites based on similar form
technology. AOL reserves the right to review and approve the user
interface and site design prior to launch of the Promotions and to
conduct focus group testing to assess compliance with respect to such
consultation and with respect to Advertiser's compliance with the
preceding sentence.
4. TECHNICAL PROBLEMS. Advertiser agrees to use commercially reasonable
efforts to address material technical problems (over which Advertiser
exercises control) affecting use by AOL Members of the Advertiser Site
(an "Advertiser Technical Problem") promptly following notice thereof. In
the event of an Advertiser Technical Problem (including, without
limitation, infrastructure deficiencies producing user delays), AOL will
have the right to regulate the promotions it provides to Advertiser
hereunder until such time as Advertiser corrects the Advertiser Technical
Problem at issue.
5. MONITORING. Advertiser will ensure that the performance and availability
of the Advertiser Site is monitored on a continuous basis. Advertiser
will provide AOL with contact information (including e-mail, phone, pager
and fax information, as applicable, for both during and after business
hours) for Advertiser's principal business and technical representatives,
for use in cases when issues or problems arise with respect to the
Advertiser Site.
6. TELECOMMUNICATIONS. Where applicable Advertiser will utilize encryption
methodology to secure data communications between the Parties' data
centers.
7. SECURITY. Advertiser will utilize Internet standard encryption
technologies (e.g., Secure Socket Layer - SSL) to provide a secure
environment for conducting transactions and/or transferring private
member information (e.g. credit card numbers, banking/financial
information, and member address information) to and from the Advertiser
Site. Advertiser will facilitate periodic reviews (with five (5) days
prior written notice for such reviews in made person), of the Advertiser
Site by AOL in order to evaluate the security risks of such site.
Advertiser will promptly investigate and remedy as necessary any security
risks or breaches of security as may be identified by AOL's Operations
Security team.
8. TECHNICAL PERFORMANCE.
i. Advertiser will design the Advertiser Site to support the AOL-client
embedded versions of the Microsoft Internet Explorer 5.0, 5.5 and
6.xx browsers (Windows) and MSIE 4.01/MacOS 8.5.1 (Macintosh), and
the Netscape Browser 4.XX and 6.XX and CompuServe 2000 and make
commercially reasonable efforts to support all other AOL browsers
listed at: ▇▇▇▇://▇▇▇▇▇▇▇▇▇.▇▇▇▇.▇▇▇.▇▇▇.
ii. To the extent Advertiser creates customized pages on the Advertiser
Site for AOL Members, Advertiser will develop and employ a
methodology to detect AOL Members (e.g. examine the HTTP User-Agent
field in order to identify the "AOL Member-Agents" listed at:
"▇▇▇▇://▇▇▇▇▇▇▇▇▇. ▇▇▇▇.▇▇▇.▇▇▇)."
iii. Advertiser will periodically review the technical information made
available by AOL at ▇▇▇▇://▇▇▇▇▇▇▇▇▇.▇▇▇▇.▇▇▇.▇▇▇.
iv. Advertiser will design its site to support HTTP 1.0, 1.1 or later
protocol as defined in RFC 1945 and to adhere to AOL's parameters
for refreshing or preventing the
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CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.42
caching of information in AOL's proxy system as outlined in the
document provided at the following URL:
▇▇▇▇://▇▇▇▇▇▇▇▇▇.▇▇▇▇.▇▇▇.▇▇▇. Advertiser is responsible for the
manipulation of these parameters in web-based objects so as to allow
them to be cached or not cached as outlined in RFC 1945.
v. Prior to releasing material, new functionality or features through
the Advertiser Site ("New Functionality"), Advertiser will use
commercially reasonable efforts to (i) test the New Functionality to
confirm its compatibility with AOL Service client software and (ii)
provide AOL with written notice of the New Functionality so that AOL
can perform tests of the New Functionality to confirm its
compatibility with the AOL Service client software. Should any new
material, new functionality or features through the Advertiser Site
be released without notification to AOL, AOL will not be responsible
for any adverse member experience until such time that compatibility
tests can be performed and the new material, functionality or
features qualified for the AOL Service.
9. AOL INTERNET SERVICES ADVERTISER SUPPORT. AOL will provide Advertiser
with access to the standard online resources, standards and guidelines
documentation, technical phone support, monitoring and after-hours
assistance that AOL makes generally available to similarly situated
web-based partners. AOL support will not, in any case, be involved with
content creation on behalf of Advertiser or support for any technologies,
databases, software or other applications which are not supported by AOL
or are related to any Advertiser area other than the Advertiser Site.
Support to be provided by AOL is contingent on Advertiser providing to
AOL demo account information (where applicable), a detailed description
of the Advertiser Site's software, hardware and network architecture and
access to the Advertiser Site for purposes of such performance and load
testing as AOL elects to conduct.
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CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10.42
EXHIBIT C
TO INSERTION ORDER
STANDARD TERMS
AOL Advertising Standard Terms and Conditions
1. DISPLAY OF ADVERTISING MATERIAL. Advertiser acknowledges that the sole
obligation of America Online, Inc and its affiliates, including, without
limitation, Netscape Communications Corporation, CompuServe Interactive
Services, Inc., Digital City, Inc., ICQ, Inc., MapQuest, Inc. and MovieFone,
Inc. (collectively "AOL") is to display one or more advertisements (the
"Advertisements") from Advertiser which conform to the specifications set forth
in the carriage plan or otherwise in this insertion order which has been
executed by AOL and Advertiser (collectively with these Standard Terms and
Conditions, the "Insertion Order") through the Designated Service(s). The
"Designated Service(s)" shall mean the standard version of any AOL owned or
operated property which is expressly identified in this Insertion Order as a
location where one or more Advertisements will be displayed and any third party
owned or operated property for which AOL acts as a sales agent and which is
expressly identified in this Insertion Order as a location where one or more
Advertisements will be displayed. The Designated Service(s), along with any
other product or service owned, operated, distributed or authorized to be
distributed by or through AOL or its affiliates worldwide, are herein referred
to as the "AOL Network." Subject to Advertiser's reasonable approval, AOL shall
have the right to fulfill its promotional commitments with respect to the
Advertisements by providing Advertiser with comparable placements of the
Advertisements in [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] areas of the AOL Network ([*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] on an overall basis (e.g. based on a variety of factors, such as
reach, frequency, demographics, etc.). AOL reserves the right to redesign or
modify the organization, structure, "look and feel" and other elements of the
AOL Network at its sole discretion at any time without prior notice. In the
event such modifications will have a material adverse affect on the placement of
one or more of the Advertisements, AOL will work with Advertiser to display the
affected Advertisements in a comparable location and manner (comparable on an
overall basis (e.g. based on a variety of factors, such as reach, frequency,
demographics, etc.) as mutually agreed upon by the parties. Advertiser may not
resell, trade, exchange, barter or broker to any third-party any advertising
space which is the subject of this Insertion Order, provided that, Advertiser
may promote certain products and services of its partners if such promotions are
in accordance with all applicable terms and conditions hereof, Advertiser does
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] for such promotions, and subject to AOL's approval, not
to be unreasonably withheld or delayed. AOL may alter or shorten the flight
dates set forth in this Insertion Order if advertising materials required per
this Insertion Order are not provided at least three (3) business days prior to
the display start date, and Advertiser shall not be entitled to any refund or
proration for delays to the extent caused by Advertiser's failure to deliver
such materials. To the extent Advertiser is purchasing inventory on a site not
owned or wholly controlled by AOL ("Partner Inventory"), Advertiser acknowledges
that AOL is acting solely as a sales representative for the entity(ies) which
owns and/or controls the relevant site. In the event that AOL is unable to
display one or more Advertisements on Partner Inventory, AOL shall provide
Advertiser, as Advertiser's sole remedy, with replacement inventory on the AOL
Network (which such replacement inventory is mutually agreed to be comparable on
an overall basis (e.g. based on a variety of factors, such as reach, frequency,
demographics, etc.)).
2. LICENSE. Advertiser agrees that AOL has the right to display, reproduce
(including compression and temporary storage as necessary for the standard
operation of the AOL Network), distribute, perform, transmit and promote the
Advertisements, including the right to link to any content or materials on any
interactive site linked to the Advertisements (the "Advertiser Content") through
the AOL Network.
3. ADVERTISER CONTENT. The Advertisements shall link only to the URLs specified
in this Insertion Order and shall not offer or promote any products and/or
services other than the products and services expressly provided for in this
Insertion Order. The Advertisements shall not (i) [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] AOL or
(ii) promote any product, service or entity which is reasonably [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] with the AOL Network (or any brand, property or significant
functionality or significant portion thereof) or with one or more of the
principal products or services offered through the AOL Network (collectively,
"[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]"). The Advertiser Content shall not (i) [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] AOL or (ii) intentionally and actively promote any [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT];
provided that mere press releases and case studies shall not be deemed
promotions. Notwithstanding anything to the contrary, (a) the products, services
and joint offerings to the extent expressly listed on Schedule III to the AOLTW
Promotional Agreement are deemed `Permitted Products' and pre-approved by AOL
and shall not be
CONFIDENTIAL
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24
deemed [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] hereunder; and (b) if AOL reasonably
believes in good faith that any promotions of any [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] in the
Advertiser Content are reasonably problematic to AOL, the parties shall work
together to find a reasonable and appropriate remedy. The Advertisements and the
Advertiser Content shall comply with AOL's privacy policies, terms of service,
generally applicable advertising standards and practices, and all other
standard, written policies for the applicable Designated Service(s), as such may
be modified by AOL from time to time, provided that such written policies,
terms, standards, and practices are made available to Advertiser. Advertiser
hereby represents and warrants that (a) it possesses all authorizations,
approvals, consents, licenses, permits, certificates or other rights and
permissions necessary to offer, sell or license the products and services
offered, sold or licensed by or through the Advertisements or the Advertiser
Content, and (b) neither the Advertisements nor the Advertiser Content will
violate any applicable law, regulation or third party right (including, without
limitation, any copyright, trademark, patent or other proprietary right).
Advertiser also warrants that a reasonable basis exists for all product or
service performance or comparison claims appearing through the Advertiser
Content. In no event shall the Advertisements or the Advertiser Content state or
imply that (i) any Advertisement was placed by AOL or (ii) that AOL endorses
Advertiser's products or services. To the extent AOL notifies Advertiser of
reasonable complaints or concerns (e.g., from a user of the AOL Network (an "AOL
User")) regarding the Advertiser Content or any other content or materials
linked thereto or associated therewith ("Objectionable Content"), Advertiser
shall, to the extent such Objectionable Content is within Advertiser's control,
use commercially reasonable efforts to respond in good faith to such complaints
or concerns. Advertiser shall take all steps necessary to ensure that any
contest, sweepstakes or similar promotion conducted or promoted through the
Advertisements or the Advertiser Content complies with all applicable federal,
state and local laws and regulations.
4. OPERATIONS. Advertiser shall use commercially reasonable efforts to ensure
that the Advertisements and the Advertiser Content are in compliance with AOL's
then-current, generally applicable technical standards for the Designated
Service(s) provided that such standards are made available to Advertiser. In the
event that the Advertisements or the Advertiser Content (or any portion thereof)
fails to materially comply with AOL's generally applicable technical standards
for the Designated Service, AOL shall have the right to [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] the
placement of the Advertisements (provided that AOL shall [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] such
promotions promptly after such non-compliance is remedied). Additionally, AOL
will be entitled to [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] or [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] the placement of
the Advertisements in the event of any material breach of or material
non-compliance with any provision of this Insertion Order ([*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT])
(provided that AOL shall [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] such promotions promptly after such
breach is remedied). If Advertiser is unable to cure any material breach or
material non-compliance herewith within five (5) business days after notice from
AOL, AOL shall have the right to reduce its impressions commitments hereunder
pro rata for the duration of the breach relative to the term of this Insertion
Order (e.g., if Advertiser's site is inoperable for 10 days, AOL's impressions
commitment shall be reduced by 10 days' worth of impressions).
5. THIRD PARTY AD SERVING. In the event that Advertiser elects to serve the
Advertisements through a third party ad serving system, such election shall be
subject to the following requirements: (a) Advertiser shall elect solely from
among the third parties which then appear on AOL's approved third party ad
server list, (b) Advertiser shall comply with all reasonable requirements set by
AOL for the use of a third party ad serving system, (c) Advertiser shall ensure
that its chosen third party ad server complies with all reasonable requirements
set by AOL for the serving of Advertisements into the AOL Network, provided that
failure of the third party to comply with AOL's reasonable requirements shall
not be deemed a breach of this Insertion Order by Advertiser so long as
Advertiser ceases to use such third party to serve the Advertisements promptly
upon notice from AOL that such third party is not in compliance with AOL's
reasonable requirements, and (d) any traffic or impression reports provided to
Advertiser by such third party shall have no effect on AOL's obligations under
this Insertion Order (i.e., the impression reports provided to Advertiser by AOL
shall be the controlling reports for purposes of this Insertion Order).
6. PRODUCTION WORK. Unless expressly provided for elsewhere in this Insertion
Order, AOL shall have no obligation to provide any creative, design, technical
or production services to Advertiser ("Services"). Delivery by AOL of any
Services shall be subject to (i) AOL's availability to perform the requested
work, (ii) execution by both parties of a separate work order specifically
outlining the Services to be provided and the fees to be paid by Advertiser for
such Services and (iii) payment [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] by Advertiser of such fees.
7. CUSTOMER SERVICE; TAXES. Advertiser shall bear full responsibility for all
customer service, including without
CONFIDENTIAL
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25
limitation, order processing, billing, fulfillment, shipment, collection,
returns and chargebacks, and other customer support associated with any products
or services offered, sold or licensed through the Advertisements or the
Advertiser Content, and AOL will have no obligations whatsoever with respect
thereto. Advertiser will collect and pay and indemnify and hold AOL harmless
from, any sales, use, excise, import or export, value added or similar tax or
duty arising from or related to the Advertisements and/or the Advertiser
Content, including any penalties and interest, as well as any costs associated
with the collection or withholding thereof, including reasonable attorneys fees,
but excluding any taxes arising solely from AOL's income. The foregoing
provisions of this section shall survive the completion, expiration, termination
or cancellation of this Insertion Order. In the event that this Insertion Order
identifies any of AOL's "Shop@" areas (or similar or successor shopping areas)
as a location where an Advertisement will be displayed, Advertiser shall comply
with AOL's then-current merchant certification standards, provided such
certification standards are made available to Advertiser.
8. SEARCH TERMS; KEYWORDS; NAVIGATION. To the extent Advertiser is purchasing
one or more Advertisements related to a "search" term(s), Advertiser represents
and warrants that Advertiser has the legal rights necessary to utilize such
search term in connection with the Advertisement(s). If and to the extent
Advertiser is purchasing a search term for a flat fee (rather than purchasing a
quantity of impressions based on a CPM-based price), such flat fee entitles
Advertiser to up to [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] impressions per month. If the relevant
search term generates more than [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] impressions in any month, AOL may
provide Advertiser (among other advertisers) the opportunity to purchase some or
all of the additional impressions for an additional fee (on a non-exclusive
basis); provided that AOL may also sell some or all of impressions in excess of
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] to another advertiser. Any "keyword" terms for
navigation from within the proprietary America Online brand service or "go word"
terms for navigation from within the proprietary CompuServe brand service ("AOL
Keyword Terms") (as contrasted to "search" terms) which may be made available to
Advertiser shall be (i) subject to availability and (ii) limited to the
combination of the "keyword" or "go word" modifier combined with a registered
trademark of Advertiser. Advertiser shall promote any AOL [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] (if any)
provided to it [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] as it promotes any other [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] for the Advertiser Content other than the URL for the Advertiser
Content. AOL reserves the right to revoke at any time Advertiser's use of any
AOL Keyword Terms which do not incorporate registered trademarks of Advertiser.
Advertiser acknowledges that its utilization of any AOL Keyword Term will not
create in it, nor will it represent it has, any right, title or interest in or
to such AOL Keyword Term, other than the right, title and interest Advertiser
holds in Advertiser's registered trademark independent of the AOL Keyword Term.
Advertiser shall not inhibit navigation back to the appropriate AOL Time Warner
online property from which AOL or AOL Users came to any Advertiser site, whether
through a particular pointer or link, the "back" button on an Internet browser,
the closing of an active window, or any other return mechanism, (e.g., such
attempts to return back to the appropriate AOL Time Warner online property shall
not be interrupted by Advertiser through the use of any intermediate screen or
other device not specifically requested by the user, including without
limitation through the use of any html pop-up window or any other similar
device).
9. PAYMENT; SUSPENSION. Subject to any express terms to the contrary in the
AOLTW
Promotional Agreement, Advertiser agrees to pay AOL for all advertising
displayed in accordance with the agreed upon amounts and billing schedule shown
on this Insertion Order. Subject to any applicable makegood provisions hereunder
or under the AOLTW
Promotional Agreement, Advertising packages are [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] or [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT] except to the extent otherwise expressly
contemplated hereunder and under the AOLTW Promotional Agreement. In the event
Advertiser is not in compliance with any material term of this Insertion Order,
AOL shall have the right (in addition to any other remedies available to AOL
hereunder) to [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT] Advertiser [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] its material
non-compliance and in the event that Advertiser [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] such
material non-compliance after five (5) days notice, AOL will be relieved of the
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] of the [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]. Should AOL [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] the
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] in accordance with the foregoing, Advertiser will
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] the [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT] on this Insertion Order.
CONFIDENTIAL
EXECUTION COPY
26
10. USAGE DATA. AOL shall provide Advertiser with usage information related to
the Advertisements in substance and form determined by AOL, consistent with its
then-standard reporting practices (e.g., providing access to standard
impressions and click through reports related to the Advertisements, and with
respect to `ad served' rotating Advertisements (i.e., when the creative is
trafficked through AOL's (or Advertiser's or a third party's ad serving
software) (excluding all welcome screen promotions and any fixed, non-rotating,
or non-ad served promotions, the "Ad-Served Promotions"), such standard
information shall also be made available to Advertiser through AOL's standard
web-based reporting system, e.g., the Advertising Sales Information System
("ASIS") or any successor, on a 24 hour delayed basis). Advertiser may not
distribute or disclose any usage information obtained from, or pertaining to,
AOL, its affiliates, or its users, to any third party (other than Advertiser's
advertising agent which is bound to confidentiality limitations substantially
similar to those herein) without AOL's prior written consent; provided that
notwithstanding anything to the contrary, Advertiser shall be entitled (without
having to obtain AOL's prior written consent) to use any online traffic data in
its business operations and to disclose information derived from such online
traffic data in an aggregate form (i.e., combined with other Advertiser
information in a manner that prevents individual identification of AOL`s traffic
information).
11. LIMITATION OF LIABILITY; DISCLAIMER; INDEMNIFICATION. (A) (1) EXCEPT FOR
SECTION [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] ABOVE, SUBSECTION [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT], A PARTY'S
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] HEREUNDER AND/OR UNDER THE AOLTW PROMOTIONAL AGREEMENT
AND/OR BREACHES OF [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] HEREIN AND/OR UNDER THE AOLTW
PROMOTIONAL AGREEMENT BY AND BETWEEN THE PARTIES, UNDER NO CIRCUMSTANCES SHALL
EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] ARISING FROM ANY
ASPECT OF THE RELATIONSHIP PROVIDED FOR HEREIN. (2) EXCEPT FOR SECTION
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] ABOVE, SUBSECTION [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] AND A PARTY'S
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] HEREUNDER AND/OR UNDER THE AOLTW PROMOTIONAL AGREEMENT
NEITHER PARTY SHALL IN ANY EVENT BE LIABLE TO THE OTHER PARTY UNDER THIS
INSERTION ORDER FOR [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] (OR ON THE CASE OF BREACHES OF
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT], FOR [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT] OR [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] FOR [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] THE [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] (B) AOL MAKES NO AND HEREBY SPECIFICALLY
DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT], INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT], AND IMPLIED WARRANTIES
ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, AOL SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING
(I) THE [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] WHO [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT] THE [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] OR [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] THE [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT], (II) ANY [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] MIGHT
OBTAIN FROM [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT] AND (III) THE [*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] OR [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] OF THE [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] WITH RESPECT TO [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]. (C)
Advertiser hereby agrees to indemnify, defend and hold harmless AOL and the
officers, directors, agents, affiliates, distributors, franchises and employees
of AOL from and against all claims, actions, liabilities, losses, expenses,
damages and costs (including, without limitation, reasonable attorneys' fees)
that may at any time be incurred by any of them by reason of any claims, suits
or proceedings: (a) for [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] under this Insertion Order. AOL hereby
agrees to indemnify, defend and hold harmless Advertiser and the officers,
directors, agents, affiliates, distributors, franchises and employees of
Advertiser from and against all claims, actions, liabilities, losses, expenses,
damages and costs (including, without limitation, reasonable attorneys' fees)
that may at any time be
CONFIDENTIAL
EXECUTION COPY
27
incurred by any of them by reason of any claims, suits or proceedings: (a)
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]; or (b) [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] under this Insertion Order. The
indemnified party shall notify the indemnifying party of any claim, action or
demand (an "Action") for which indemnity is claimed. The indemnifying party's
counsel defending such Action shall be subject to the indemnified party's prior
written approval. The indemnified party reserves the right to participate fully
in and assume joint control of the defense of any Action. Settlement of any
Action shall be subject to the indemnified party 's prior written approval. This
section shall survive the completion, expiration, termination or cancellation of
this Insertion Order.
12. SOLICITATION. (a) Advertiser shall not send unsolicited, commercial e-mail
or other online communication (i.e., "spam") through or into the AOL Network,
absent a prior business relationship with the recipient, and shall comply with
any other standard AOL policies and limitations relating to distribution of bulk
e-mail solicitations or communications through or into AOL's products or
services (including, without limitation, the requirement that Advertiser provide
a prominent and easy means for the recipient to "opt-out" of receiving any
future commercial e-mail communications from Advertiser) provided that such
policies are made available to Advertiser. (b) Advertiser shall ensure that its
collection, use and disclosure of information obtained from AOL Users under this
Insertion Order (excluding information rightfully and independently obtained
(i.e., unrelated to this Insertion Order and/or the AOLTW Promotional Agreement)
without disclosure or use limitations) ("User Information") complies with (i)
all applicable laws and regulations and (ii) the then-current privacy
policy(ies) of the applicable Designated Service(s) provided that such policies
are made available to Advertiser (or, in the case of information collected on
Advertiser's site, Advertiser's standard privacy policies so long as such
policies are prominently published on the site and provide adequate notice,
disclosure and choice to users regarding Advertiser's collection, use and
disclosure of user information). (c) Each request for information from an AOL
User ("Information Request") shall clearly and conspicuously specify to the AOL
User the purpose for which the information collected by Advertiser will be used
(the "Specified Purpose"). Advertiser shall limit use of the User Information
collected through an Information Request to the Specified Purpose. In the case
of AOL Users who purchase products or services from Advertiser, Advertiser will
be entitled to incorporate such AOL Users into Advertiser's aggregate lists of
customers; provided that Advertiser shall in no way: (i) disclose User
Information in a manner that identifies AOL Users as end-users of an AOL product
or service, provided that inclusion of AOL User email addresses as part of an
aggregate list shall not be deemed a breach of this provision, or in any other
manner that could reasonably be expected to facilitate use of such information
by or on behalf of a Competitive Product; or (ii) otherwise use such User
Information in connection with marketing, promotion, or distribution of a
Competitive Product. (d) Advertiser shall not use any User Information collected
(whether or not collected through an Information Request, the Advertisements,
the Advertiser Content, or any other aspect of the AOL Network) to promote, or
solicit customers on behalf of, a Competitive Product. This section shall
survive the completion, expiration, termination or cancellation of this
Insertion Order.
13. PRESS RELEASES. Neither party shall issue any press releases or public
statements concerning the existence or terms of this Insertion Order without the
prior written approval of the other party. This section shall survive the
completion, expiration, termination or cancellation of this Insertion Order.
14. CONFIDENTIALITY. Any information disclosed hereunder shall be subject to
Section 6.3 of the AOLTW Promotional Agreement.
15. REPRESENTATIONS AND WARRANTIES. Each party to this Insertion Order
represents and warrants to the other party that: (i) such party has the full
corporate right, power and authority to enter into this Insertion Order and to
perform the acts required of it hereunder; and (ii) when executed and delivered
by such party, this Insertion Order will constitute the legal, valid and binding
obligation of such party, enforceable against such party in accordance with its
terms.
16. TERMINATION. Either party may terminate this Insertion Order at any time
with written notice to the other party in the event of a material breach of this
Insertion Order by the other party, which remains uncured after thirty (30) days
written notice thereof; provided that the cure period in connection with
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] to make any [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] to [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] in this
Insertion Order shall be the later of [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] days from (i) the date
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] and (ii) the date on which [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] to
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] of such [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT
TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]. In addition, either party shall
have the right to terminate this Insertion Order upon a material breach by the
other party of the AOLTW Promotional Agreement, which material breach remains
uncured after any notice and cure period set forth in such
CONFIDENTIAL
EXECUTION COPY
28
agreement. Should AOL terminate this Insertion Order as set forth herein due to
Advertiser's failure to comply with any material requirement of this Insertion
Order, [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] will [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT] for the [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
indicated on the Insertion Order. Should Advertiser terminate this Insertion
Order as set forth herein due to AOL's failure to comply with any material
requirement of this Insertion Order or the AOLTW Promotional Agreement,
Advertiser shall only be liable under this Insertion Order to pay AOL for the
media inventory actually used by Advertiser up to the date of termination,
unless otherwise agreed by Advertiser. Either party may terminate this Insertion
Order immediately following written notice to the other party if such other
party (1) ceases to do business in the normal course, (2) becomes or is declared
insolvent or bankrupt, (3) 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 (4) makes an assignment for the
benefit of creditors. Additionally, in the event of a [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] of
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] of [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT] may terminate this Insertion Order
upon thirty (30) days prior written notice to Advertiser. [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] reserves
the right to terminate this Insertion Order at any time upon thirty (30) days
advance written notice to [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] (or upon such shorter notice as may be
reasonably designated by [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT]) in the event that [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]
believes in good faith that [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO
AN APPLICATION FOR CONFIDENTIAL TREATMENT] of the [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] to
liability or other adverse consequences. In the event of a termination in
accordance with the foregoing sentence which is not due to [*MATERIAL OMITTED
AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] with
any material requirement of this Insertion Order or the AOLTW Promotional
Agreement[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] will only be responsible for the [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] of
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] attributable to the impressions delivered to the
Advertisements from the commencement of this Insertion Order through the
effectiveness of such termination.
17. MISCELLANEOUS. The parties to this Insertion Order 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. The failure of either party to insist upon or
enforce strict performance by the other party of any provision of this Insertion
Order or to exercise any right under this Insertion Order 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. Except
where otherwise specified herein, the rights and remedies granted to a party
under this Insertion Order 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. Neither party will be liable for, or be considered in breach of or
default under this Insertion Order on account of any delay or failure to perform
as required by this Insertion Order as a result of any causes or conditions
which are beyond such party's reasonable control and which such party is unable
to overcome by the exercise of reasonable diligence. Neither party shall use,
display or modify the other party's trademarks in any manner absent such other
party's express prior written approval. This Insertion Order (along with the
AOLTW Promotional Agreement) sets forth the entire agreement between Advertiser
and AOL, and supersedes any and all prior agreements of AOL or Advertiser with
respect to the transactions set forth herein, whether written or oral. No
change, amendment or modification of any provision of this Insertion Order shall
be valid unless set forth in a written instrument signed by an authorized
representative of both AOL (of Vice President level or higher) and Advertiser
(e.g., VP or SVP of Marketing Communications or equivalent or higher level).
Neither party shall assign this Insertion Order or any right, interest or
benefit under this Insertion Order without the prior written consent of the
other party (provided [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] may assign to its affiliates which
agrees to be bound by the applicable provisions hereof). Assumption of the
Insertion Order by any successor to [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] (including, without
limitation, by way of merger or consolidation) shall be subject to [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT] prior written approval, such approval not to be unreasonably withheld
or delayed. Subject to the foregoing, this Insertion Order shall be fully
binding upon, inure to the benefit of and be enforceable by the parties hereto
and their respective successors and permitted assigns. In the event that any
provision of this Insertion Order is held invalid by a court with jurisdiction
over the parties to this Insertion Order, (i) such provision shall be deemed to
be restated to reflect as nearly as possible the original intentions of the
parties in accordance with applicable law and (ii) the remaining terms,
provisions, covenants and restrictions of this Insertion Order shall remain in
full force
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and effect. This Insertion Order 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. This Insertion Order shall be interpreted, construed and
enforced in all respects in accordance with the laws of the State of
New York,
except for its conflicts of laws principles. Each Party hereby irrevocably
consents to the exclusive jurisdiction of the courts of the State of
New York
and the federal courts situated in the State of
New York in connection with any
action arising under this Insertion Order. Any notice or other communication
under this Insertion Order 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 confirmed facsimile or in person to the party to whom the same is directed,
(ii) one business day after deposit with a commercial overnight carrier, with
written verification of receipt; or (iii) five (5) 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. 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 Insertion Order. Any provision
which by its nature would survive the expiration or termination of this
Insertion Order shall survive the expiration or termination of this Insertion
Order.
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EXHIBIT D
TO INSERTION ORDER
PERMITTED PRODUCTS
[SEE SCHEDULE III TO AOLTW PROMOTIONAL AGREEMENT]
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SCHEDULE III
TO AOLTW PROMOTIONAL AGREEMENT
PERMITTED PRODUCTS:
ONLINE PROPERTIES:
The following shall be permitted online on the Online Properties, in each case
below, subject to [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] as of the Effective Date hereof, to the
minimum extent required (e.g., (a) [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] subject to REASONABLE
approval by AOL that the manner and location in which such[*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] , not to
be unreasonably withheld or delayed; (b) [*MATERIAL OMITTED AND SEPARATELY FILED
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT], but may be [*MATERIAL
OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL
TREATMENT]; (c) [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN
APPLICATION FOR CONFIDENTIAL TREATMENT] shall not be [*MATERIAL OMITTED AND
SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] (d)
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT] (e.g., voice over IP, internet telephony, etc.) shall
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]:
------------------------------------- ------------------------------------------- --------------------------------
PRODUCT/SERVICE OFFER TARGET AUDIENCE GO-TO-MARKET
------------------------------------- ------------------------------------------- --------------------------------
|X| Medium to large size Genuity sales force
enterprises. CXOs, VPs, Directors
of Functional Business Groups and IT
|X| ISPs
Genuity sales force
[*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT]
------------------------------------- ------------------------------------------- --------------------------------
[*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT] Same as above Genuity sales force
------------------------------------- ------------------------------------------- --------------------------------
[*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT] Same as above Genuity sales force
------------------------------------- ------------------------------------------- --------------------------------
[*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT] Same as above Genuity sales force; may do
some co-marketing with Nortel
------------------------------------- ------------------------------------------- --------------------------------
[*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT] Same as above Genuity sales force; may do
some co-marketing with Sun
(Sun Black Rocket)
------------------------------------- ------------------------------------------- --------------------------------
[*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT] Same as above Marketing Partners include
Verizon and Cisco
------------------------------------- ------------------------------------------- --------------------------------
[*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT] Same as above Genuity sales force together
with EMC
------------------------------------- ------------------------------------------- --------------------------------
[*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT] CEOs, COOs, CFOs, CIOs With and through PWC
Consulting partners
------------------------------------- ------------------------------------------- --------------------------------
[*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT] Medium to large size enterprises. CXOs, Genuity direct sales force
VPs, Directors of Functional Business
Groups and IT
------------------------------------- ------------------------------------------- --------------------------------
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------------------------------------- --------------------------------------- -------------------------------
TYPICAL OFFERS (IN EACH CASE BELOW TARGET AUDIENCE NOTES
TO THE EXTENT, RELATED TO (A) ANY
OF THE PRODUCTS AND SERVICES
EXPRESSLY LISTED ABOVE (INCLUDING
COST OF OWNERSHIP THEREOF, AND WHAT
EVERY CXO NEEDS TO KNOW ABOUT SUCH
PRODUCTS AND SERVICES), (B)
DISASTER RECOVERY, OR (C) OTHER
MUTUALLY AGREED PRODUCTS AND
SERVICES)
------------------------------------- --------------------------------------- -------------------------------
White papers Medium to large size enterprises.
CXOs, VPs, Directors of Functional
Business Groups and IT
------------------------------------- --------------------------------------- -------------------------------
Invitation to online executive or Medium to large size enterprises.
IT briefing CXOs, VPs, Directors of Functional
Business Groups and IT
------------------------------------- --------------------------------------- -------------------------------
ROI calculator Medium to large size enterprises.
CXOs, VPs, Directors of Functional
Business Groups and IT
------------------------------------- --------------------------------------- -------------------------------
For qualified users, discounted Medium to large size enterprises.
eServices consulting time CXOs, VPs, Directors of Functional
Business Groups and IT
------------------------------------- --------------------------------------- -------------------------------
Discounted or waived installation Medium to large size enterprises.
or services fees CXOs, VPs, Directors of Functional
Business Groups and IT
------------------------------------- --------------------------------------- -------------------------------
THE PARTIES MAY UPDATE THE ABOVE LISTS FROM TIME TO TIME BY MUTUALLY AGREED
WRITTEN AMENDMENT
OTHER PROPERTIES:
With respect to the specific products, services and offers that may be promoted
by Genuity on AOLTW properties (other than the Online Properties) hereunder, the
Parties shall negotiate in good faith and use commercially reasonable efforts to
reach mutual agreement within a reasonable time (e.g., 30 days after the
Effective Date).
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SCHEDULE IV
TO AOLTW PROMOTIONAL AGREEMENT
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT]
FOR PURPOSES OF SECTION 6.3.5
FOR THE ABUNDANCE OF CLARITY, THIS SCHEDULE SHALL ONLY BE USED FOR PURPOSES OF
SECTION 6.3.5, AND SHALL NOT LIMIT IN ANY WAY ANY BUSINESS ACTIVITIES OF AOLTW
OR ITS AFFILIATES AND SUBSIDIARIES WITH SUCH ENTITIES LISTED BELOW.
[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR
CONFIDENTIAL TREATMENT]
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SCHEDULE V
TO AOLTW PROMOTIONAL AGREEMENT
[*MATERIAL OMITTED AND SEPARATELY
FILED PURSUANT TO AN APPLICATION
FOR CONFIDENTIAL TREATMENT]
(IN EACH CASE BELOW, TO THE EXTENT THE OBJECTIVES ARE REASONABLE AND
ATTAINABLE):
PRINT
CIRCULATION - (e.g. thousands or millions of readers reached, # delivered to top
management titles, # delivered to technical titles)
RELEVANT EDITORIAL - (e.g. topics like successful business strategies that
increase shareholder value, new product introductions, industry trends,
corporate turnarounds, leadership, the business of sports, etc.)
TARGET AUDIENCE/READER DEMOGRAPHICS - (e.g. composition of readership...X%
are top management, X% are responsible for business purchases, X% involved in
technology purchase decisions, X% work in a company with 1000+ employees, X%
are men/women, X minutes spent reading each issue, etc.)
AVAILABLE UNITS (INCLUDING IMPACT) AND PLACEMENT WITHIN MAGAZINE-(e.g. single
page, spread, double gatefold, right hand gatefold, accordian gatefold, etc.)
BROADCAST
TYPE AND NETWORK - (e.g. business, news, sports, lifestyle; e.g., CNN/Headline
News, ▇▇▇▇▇▇ Sports, etc.)
TARGET AUDIENCE/VIEWER DEMOGRAPHICS - (e.g. Adults 24-54, business executives,
sports lovers, etc.)
SCHEDULING MIX - (e.g. early morning, prime time, late night, weekend)
FLIGHTS - (e.g. # active weeks and how they are spaced -- e.g., 7 flights for a
total of 21 active weeks in a year)
TOTAL RECALL POINTS (TRPS) - (e.g. each network cites statistics on Adults by
Age with specific TRPs/week for 30 or 60 second ads, with dependency on how
many times ad is scheduled to run)
INTERACTIVE
PROPERTIES - (e.g. business, news, sports, lifestyle, etc.)
TARGET AUDIENCE/VIEWER DEMOGRAPHICS - (e.g. IT managers, CXOs, enterprises with
more than 1000 employees, etc.)
BANNER OR COPY SIZE - (e.g. always varies by property)
FLIGHTS - (e.g. start and end dates)
IMPRESSIONS (IMPS) - (e.g. in thousands or millions, total IMPs for plan)
TOTAL PLAN REACH - (e.g. calculating the components of the media mix
Print/Broadcast/Interactive to predict audience reach and frequency within each
media group and/or in the aggregate - e.g., Genuity can reach X% of its' target
audience while with a frequency Y with a particular media plan).
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