\nLevel A — Highly Targeted [***]* [***]* [***]* [***]*
\nLevel B – Targeted [***]* [***]* [***]* [***]*
\nLevel C — Relevant Broad Reach [***]* [***]* [***]* [***]*
\nCampaign Promotion: Stamp Days [***]* [***]* [***]* [***]*
\n—————————————————————————————————————
\nTotal Campaign [***]* [***]* [***]* $1,700,350
\n—————————————————————————————————————<\/p>\n<\/c><\/c><\/c><\/c><\/caption>\n<\/table>\n
Level A Promotions Type of
\n —————— ——-
\n Promotion
\n ———<\/p>\n
AOL Network
\n Workplace Business Services: Permanent
\n Postage Category placement (top
\n listing in such area
\n for so long
\n as such area
\n retains its current
\n design)-
\n Workplace Professions: Sponsorship
\n Admin\/Support treatment
\n Workplace Professions: Home Sponsorship
\n Business treatment
\nWorkplace Professions: MultiLevel Sponsorship
\n Marketing treatment
\n Workplace Newsletter: Specials Feature link
\n Section integration
\n Computing Download Software Banner rotation
\n Computing Download Software: Sponsorship & Business\/Finance list box*<\/p>\n
Shopping: Computer Software Tenant position
\n Shopping: Mother’s Day Holiday Slideshow
\n Catalog integration
\n Shopping: Father’s Day Holiday Slideshow
\n Catalog integration
\n Shopping: Gift Reminder Service Feature link
\n 14 day** integration
\n Personal Finance: Tax Special Sponsorship
\n (banner only)
\n Personal Finance: Tax Area** Banner rotation
\n Mail Center Main Screen Banner rotation
\n Classifieds: Employment Banner rotation<\/p>\n
AOL.com
\n AOL.com Search Terms***<\/p>\n
CompuServe
\n ———-
\nMindset Package: Business Banner rotation
\nProfessional\/News
\nMindset Package: Home & Family Banner rotation<\/p>\n
* [***] Confidential treatment has been requested for the bracketed portions.
\nThe confidential redacted portion has been omitted and filed separately with the
\nSecurities and Exchange Commission.<\/p>\n
8<\/p>\n
Level B Areas
\n ————-<\/p>\n
AOL.com
\n AOL.COM or NetFind Home Page\/s Banner rotation
\n slots
\n My News – Run of Top News Banner rotation
\n My News – Run of Business News Banner rotation<\/p>\n
Digital City
\n Digital City: Market Selection Banner rotation<\/p>\n
Level C Areas
\n ————-<\/p>\n
AOL Network
\n Email Banner rotation
\n News Banner rotation
\n AOL Network Run of Service Banner rotation<\/p>\n
AOL.com
\n AIM Banner rotation<\/p>\n
Special Campaign Promotion:
\n —————————
\n Stamp\/Postage Days (3-day
\n ————————–
\n promotion)
\n ———-
\n Email
\n News
\n AOL Network
\nRemnant and Promotional Support
\n Vehicles<\/p>\n
———————————————————————–
\n*Subject to Advertiser’s compliance with all technical and programming
\n requirements (including quality assurance testing) of AOL.
\n**Advertiser will only be provided with these Promotions if the Phase
\n II Promotions shall have begun prior to April 15, 1999.
\n*** List to include: mail, mailing, post, postal, postage, stamp, stamps
\n————————————————————————<\/p>\n
9<\/p>\n
EXHIBIT C
\n ———<\/p>\n
AOL Advertising Standard Terms and Conditions
\n ———————————————<\/p>\n
1. Advertising Material\/Display. Advertiser acknowledges that the sole
\n —————————-
\n obligation of America Online, Inc. (“AOL”) is to display an advertisement
\n or icon (the “Advertisement”) from Advertiser which conforms to the
\n specifications set forth in the applicable Insertion Order Agreement which
\n has been executed by AOL and Advertiser (the “Insertion Order,” and,
\n collectively with these Standard Terms and Conditions, the “Insertion Order
\n Agreement”) through the standard narrowband U.S.-based America Online brand
\n service (excluding any sub-products, sub-services or third party areas
\n which may be offered therein) or such other U.S.-based AOL property as may
\n be expressly described as the site for placement in the Insertion Order
\n (the “AOL Service”). Subject to Advertiser’s reasonable approval, AOL will
\n have the right to fulfill its promotional commitments with respect to the
\n Advertisements by providing Advertiser with comparable placements of the
\n Advertisements in alternative areas of the AOL Service. AOL reserves the
\n right to redesign or modify the organization, structure, “look and feel”
\n and other elements of the AOL Service (including any redesign of the
\n Workplace Business Services: Postage Category) at its sole discretion at
\n any time without prior notice (a “Redesign”). In the event such
\n modifications will materially and adversely affect the placement of the
\n Advertisement, AOL will work with Advertiser to display the Advertisement
\n in a comparable location and manner that is reasonably satisfactory to
\n Advertiser. Except as expressly provided in the Insertion Order, the
\n specific nature and positioning of the Advertisement will be as determined
\n by AOL in its editorial discretion. Advertiser agrees that AOL has the
\n right to market, display, perform, transmit and promote the Advertisement
\n through the AOL Service and in connection therewith, subject to the terms
\n and conditions hereof, Advertiser hereby grants to AOL a non-exclusive,
\n non-sublicensable (except to an Affiliate of AOL) and non-transferable
\n license to use the names specified by Advertiser from time to time which
\n Advertiser shall have a legal right to use (the “Advertiser Marks”) in the
\n Advertisements and in connection with the advertising, marketing and
\n promotion of the Advertiser Products on the AOL Service. Additionally, AOL
\n shall have the right to use the Advertiser Marks in connection with the
\n distribution of the Advertiser Software in accordance with Exhibit E. AOL
\n hereby acknowledges and agrees that (i) except as set forth herein, AOL has
\n no rights, title or interest in or to the Advertiser Marks, (ii) AOL shall
\n not challenge Advertiser’s exclusive rights in and to the Advertiser Marks,
\n (iii) AOL shall not apply for registration of the Advertiser Marks anywhere
\n in the world, (iv) AOL shall not alter any of the Advertiser Marks in any
\n way and shall use the Advertiser Marks exactly as provided by Advertiser,
\n (v) the use by AOL of the Advertiser Marks shall inure to the benefit of
\n Advertiser with respect to Advertiser’s rights and ownership in and to the
\n Advertiser Marks, and (vi) Advertiser reserves all rights not expressly
\n granted to AOL hereunder in connection with the Advertiser Marks. AOL shall
\n use reasonable efforts to notify Advertiser promptly of any infringement of
\n any copyrights, trademarks, or other intellectual property or proprietary
\n rights relating to the Advertiser Software of which AOL is aware.
\n Advertiser may, in its sole discretion, take or not take whatever action it
\n believes is appropriate in connection with any such infringement. In the
\n event that AOL intends to use an Advertiser Mark in a manner which was not
\n previously approved by Advertiser, AOL shall provide notice to Advertiser
\n of its intended use of such Advertiser Mark, Advertiser shall then have
\n three (3) business days to respond to AOL’s proposed use of such Advertiser
\n Mark, and if Advertiser does not respond in such three (3) day period,
\n AOL’s use of such Advertiser Mark shall be deemed approved. Additionally,
\n Advertiser agrees that users of the AOL Service have the right to access
\n and use the Advertisement together with any content or materials linked to
\n the Advertisement (the “Advertiser Content”). The Advertiser Content (a)
\n shall not offer or promote any other products and\/or services other than
\n those expressly provided for in the relevant Insertion Order, (b) will link
\n only to the site specified on the Insertion Order and (c) shall not (1)
\n disparage AOL; (2) promote any product or service which is reasonably
\n competitive with one or more of the principal products or services offered
\n through AOL’s products and services (other than the Advertiser Products)
\n (“Competitive Products”) on any page of the Affiliated Advertiser Site
\n which is directly linked to the AOL Service; (3) be in contravention of
\n AOL’s generally applicable advertising standards and practices, as such may
\n be modified by AOL from time to time; or (d) violate any applicable law,
\n regulation or third party right (including, without limitation, any
\n copyright, trademark, patent or other proprietary right). Additionally,
\n Advertiser shall consistently update the Advertiser Content and will
\n review, delete, edit, create, update and otherwise manage such content in
\n accordance with the terms of this Insertion Order Agreement. In no event
\n shall the Advertisement or the linked area state or imply that (i) the
\n Advertisement was placed by AOL or (ii) that AOL endorses Advertiser’s
\n products or services. To the extent AOL notifies Advertiser of reasonable
\n complaints or concerns (e.g., from an AOL member) regarding the Advertiser
\n Content or any other content or materials linked thereto or associated
\n therewith (“Objectionable Content”), Advertiser will, to the extent such
\n Objectionable Content is within Advertiser’s control, use commercially
\n reasonable efforts to respond in good faith to such complaints or concerns.
\n AOL may alter or shorten the flight dates set forth in the Insertion Order
\n if advertising materials required per the Insertion Order are not provided
\n in a timely manner, and Advertiser shall not be entitled to any refund or
\n proration for delays caused by Advertiser’s failure to deliver such
\n materials.<\/p>\n
2. Operations. Unless expressly provided for elsewhere in this Insertion
\n ———-
\n Order Agreement, AOL will have no obligation to provide any creative,
\n design, technical or production services to Advertiser (“Services”).
\n Delivery by AOL of any such Services shall be subject to (i) AOL’s
\n availability to perform the requested work, (ii) execution by both parties
\n of a separate work order specifically outlining the Services to be provided
\n and the fees to be paid by Advertiser for such Services and (iii) payment
\n in advance by Advertiser of such fees. Advertiser will ensure that the
\n Advertiser Content and the site linked to the Advertiser Content are in
\n compliance with AOL’s then-current, generally applicable technical
\n standards and will take all reasonable steps necessary to conform the
\n Advertiser Content to the then-existing technologies identified by AOL
\n which are optimized for the AOL Service (including, without limitation, any
\n “quick checkout” tool which AOL may implement to facilitate purchase of
\n products by AOL users). In the event that the Advertiser Content or the
\n site linked to the Advertiser Content fails to comply with AOL’s generally
\n applicable technical standards, AOL shall have the right to cease or
\n decrease the placement of the Advertisements, and if Advertiser is unable
\n to cure such non-compliance within five business days after notice from
\n AOL, AOL shall have the right to terminate this Insertion Order Agreement.
\n Additionally, AOL will be entitled to discontinue links to Advertiser
\n Content to the extent such Advertiser Content will, in AOL’s good faith
\n judgment, adversely affect the operations of the AOL Service. Advertiser
\n will bear full responsibility for all customer service, including without
\n limitation, order processing, billing, fulfillment, shipment, collection
\n and other customer support associated with any products or services
\n offered, sold or licensed through Advertiser’s site, and AOL will have no
\n obligations whatsoever with respect thereto. Advertiser will take all steps
\n necessary to ensure that any contest, sweepstakes or similar promotion
\n conducted or promoted through the Advertiser Content complies with all
\n applicable federal, state and local laws and regulations.<\/p>\n
3. Search Terms\/Keywords. To the extent Advertiser is purchasing an
\n ———————-
\n Advertisement related to an Internet-based “search” term, Advertiser
\n represents and warrants that Advertiser has the legal rights necessary to
\n utilize such search term in connection with the Advertisement. Any
\n “keyword” terms for navigation from within the proprietary America Online
\n brand service (“AOL Keyword Terms”) (as contrasted to Internet-based search
\n terms) which may be made available to Advertiser shall be (i) subject to
\n availability and (ii) limited to the combination of the keyword modifier
\n combined with a <\/p>\n
10<\/p>\n
registered trademark of Advertiser. AOL reserves the right to revoke at any
\n time Advertiser’s use of any AOL Keyword Terms which do not incorporate
\n registered trademarks of Advertiser. Advertiser acknowledges that its
\n utilization of any AOL Keyword Term will not create in it, nor will it
\n represent it has, any right, title or interest in or to such AOL Keyword
\n Term, other than the right, title and interest Advertiser holds in
\n Advertiser’s registered trademark independent of the AOL Keyword Term.<\/p>\n
4. Payment; Cancellation. Advertiser agrees to pay AOL for all advertising
\n ———————
\n displayed in accordance with the agreed upon amounts and billing schedule
\n shown on the relevant Insertion Order. Advertising packages are
\n nonrefundable or proratable except to the extent otherwise expressly
\n contemplated hereunder. Should AOL fail to display the Advertisements in
\n accordance with the Insertion Order due to Advertiser’s failure to comply
\n with any requirement of the Insertion Order or this Insertion Order
\n Agreement, Advertiser will remain liable for the full amount indicated on
\n the Insertion Order. In the event of a Redesign, if AOL and Advertiser
\n cannot reach agreement on a substitute placement, Advertiser shall have the
\n right to cancel the Advertisement upon thirty (30) days advance written
\n notice to AOL. In such case, Advertiser will only be responsible for the
\n pro-rata portion of payments attributable to the period from the
\n commencement of the Insertion Order Agreement through the effectiveness of
\n such cancellation (the “Pro Rata Payments”). AOL reserves the right to
\n cancel and remove at any time any Advertisement in the event that AOL
\n reasonably and in good faith believes that further display of the
\n Advertisement will expose AOL to liability or other adverse consequences.
\n In the event of such a cancellation, Advertiser will only be responsible
\n for the Pro-Rata Payments. Advertiser may not resell, trade, exchange,
\n barter or broker to any third-party any advertising space which is the
\n subject of this Insertion Order Agreement.<\/p>\n
5. Usage Data. AOL will provide Advertiser with usage information related to
\n ———-
\n the Advertisement in substance and form determined by AOL, consistent with
\n its then-standard reporting practices. Advertiser may not distribute or
\n disclose usage information to any third party without AOL’s prior written
\n consent. Additionally, AOL will not disclose usage information to a third
\n party in a manner which connects Advertiser to such usage information.<\/p>\n
6. Each party acknowledges that Confidential Information may be disclosed to
\n the other party during the course of this Insertion Order Agreement. Each
\n party agrees that it will take reasonable steps, at least substantially
\n equivalent to the steps it takes to protect its own proprietary
\n information, during the term of this Insertion Order Agreement, and for a
\n period of three years following expiration or termination of this Insertion
\n Order Agreement, to prevent the duplication or disclosure of Confidential
\n Information of the other party, other than by or to its employees or agents
\n who must have access to such Confidential Information to perform such
\n party’s obligations hereunder, who will each agree to comply with this
\n Section 6. Notwithstanding the foregoing, either party may issue a press
\n release or other disclosure containing Confidential Information without the
\n consent of the other party, to the extent such press release or disclosure
\n is required by law, rule, regulation or government or court order. In such
\n event, the disclosing party will provide at least five (5) business days
\n prior written notice of such proposed disclosure to the other party.
\n Further, in the event such disclosure is required of either party under the
\n laws, rules or regulations of the Securities and Exchange Commission or any
\n other applicable governing body, such party will (i) redact mutually
\n agreed-upon portions of this Insertion Order Agreement to the fullest
\n extent permitted under applicable laws, rules and regulations and (ii)
\n submit a request to such governing body that such portions and other
\n provisions of this Insertion Order Agreement receive confidential treatment
\n under the laws, rules and regulations of the Securities and Exchange
\n Commission or otherwise be held in the strictest confidence to the fullest
\n extent permitted under the laws, rules or regulations of any other
\n applicable governing body. For the purposes hereof, “Confidential
\n Information” shall mean any information relating to or disclosed in the
\n course of the Insertion Order Agreement, which is or should be reasonably
\n understood to be confidential or proprietary to the disclosing party,
\n including, but not limited to, the material terms of this Insertion Order
\n Agreement, information about AOL users, technical processes and formulas,
\n source codes, product designs, sales, cost and other unpublished financial
\n information, product and business plans, projections, and marketing data.
\n “Confidential Information” will not include information (a) already
\n lawfully known to the receiving party and which the receiving party has a
\n reasonable basis to believe it may use or disclose without restriction, (b)
\n independently developed by the receiving party, (c) disclosed in published
\n materials except as disclosed by the receiving party in breach of this
\n Section 6, (d) generally known to the public except as disclosed by the
\n receiving party in breach of this Section 6, or (e) lawfully obtained from
\n any third party without restriction.<\/p>\n
7. Limitation of Liability; Disclaimer; Indemnification.
\n —————————————————-
\n (A) EXCEPT AS PROVIDED IN SECTION 7(C)(I)(A) AND SECTION 7(C)(II)(A)
\n BELOW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER
\n PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES
\n (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES),
\n ARISING FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP PROVIDED FOR
\n HEREIN. EXCEPT AS PROVIDED IN SECTION 7(C) LIABILITY ARISING UNDER THIS
\n INSERTION ORDER AGREEMENT WILL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE
\n DAMAGES, AND THE MAXIMUM LIABILITY OF ONE PARTY TO THE OTHER PARTY FOR ANY
\n CLAIMS ARISING IN CONNECTION WITH THIS INSERTION ORDER AGREEMENT WILL NOT
\n EXCEED THE AGGREGATE AMOUNT TO BE PAID BY ADVERTISER DURING THE YEAR IN
\n WHICH THE LIABILITY ACCRUES.<\/p>\n
(B)(I)(A) AOL MAKES NO AND HEREBY SPECIFICALLY DISCLAIMS ANY
\n REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AOL
\n SERVICE OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF
\n MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES
\n ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE; WITHOUT LIMITING
\n THE GENERALITY OF THE FOREGOING, AOL SPECIFICALLY DISCLAIMS ANY WARRANTY
\n REGARDING (1) THE NUMBER OF PERSONS WHO WILL ACCESS THE ADVERTISER CONTENT
\n OR “CLICK-THROUGH” THE ADVERTISEMENTS, (2) ANY BENEFIT ADVERTISER MIGHT
\n OBTAIN FROM INCLUDING THE ADVERTISEMENT WITHIN THE AOL SERVICE AND (3) THE
\n FUNCTIONALITY, PERFORMANCE OR OPERATION OF THE AOL SERVICE WITH RESPECT TO
\n THE ADVERTISEMENTS, AND (B) EXCEPT AS SPECIFICALLY PROVIDED IN CLAUSE II
\n BELOW, ADVERTISER MAKES NO AND HEREBY SPECIFICALLY DISCLAIMS ANY OTHER
\n WARRANTIES EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
\n WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
\n IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.<\/p>\n
(II) Advertiser warrants to AOL that the Advertiser Software will, under
\n normal use, conform to the limited warranty contained in the Software
\n License Agreement (as defined in Exhibit E) applicable to the Advertiser
\n Software during the warranty period set forth in such Software License
\n Agreement (the “Warranty Period”). The foregoing warranty will apply only
\n to the version of the Advertiser Software distributed by AOL in accordance
\n with Exhibit E. If a Customer (as defined in Exhibit E) contacts Advertiser
\n during the Warranty Period claiming a breach of the warranty set forth in
\n the Software License Agreement provided with the Advertiser Software
\n distributed by AOL in accordance with Exhibit E, Advertiser will use
\n reasonable efforts to resolve the claim directly with such Customer by
\n correcting or replacing such Advertiser Software. If a Customer contacts
\n AOL during the Warranty Period claiming any such breach of warranty, AOL
\n will use reasonable efforts to promptly refer the matter to Advertiser.<\/p>\n
(C) (i) Advertiser hereby agrees to indemnify, defend and hold harmless AOL
\n and the officers, directors, agents, affiliates, <\/p>\n
11<\/p>\n
distributors, franchises and employees of AOL from and against all claims,
\n actions, liabilities, losses, expenses, damages and costs (including,
\n without limitation, reasonable attorneys’ fees) that may at any time be
\n incurred by any of them by reason of any claims, suits or proceedings to
\n the extent such claims, suits or proceedings arise out of or are related
\n to: (a) third party claims (1) for libel, defamation, violation of right of
\n privacy or publicity, copyright infringement, trademark infringement or
\n other infringement of any third party right, fraud, false advertising,
\n misrepresentation, product liability or violation of any law, statute,
\n ordinance, rule or regulation throughout the world in connection with the
\n Advertisements or Advertiser Content provided by Advertiser to AOL
\n hereunder or in connection with the Advertiser Software distributed by AOL
\n hereunder (collectively referred to as the “Advertiser Rights Violations”);
\n provided, however, that Advertiser shall have no such indemnification
\n obligation to the extent that any alleged Advertiser Rights Violation
\n arises from or in connection with any (x) modification or other alteration
\n of any Advertisement or Advertiser Content provided to AOL by Advertiser
\n hereunder, without Advertiser’s prior approval, (y) (i) use of any
\n Advertisement or Advertising Content other than in a manner specified
\n hereunder or authorized by Advertiser (ii) claim based upon the combination
\n of the Advertisement, the Advertising Content, or the Advertiser Software
\n with other content, software technology or materials which Advertiser has
\n not approved, or (z) (i) any Advertiser Software that has been modified by
\n AOL without the prior consent of Advertiser, (ii) use of the Advertiser
\n Software by AOL in a manner which is beyond the scope of the license
\n granted to it by Advertiser pursuant to Exhibit E, (iii) AOL’s use of the
\n Advertiser Software after notice from Advertiser of infringement or
\n misappropriation ((i) (ii) and (iii) collectively the “Advertiser Software
\n Exceptions”); (2) any material breach by Advertiser of any duty,
\n representation or warranty under this Insertion Order Agreement; or (3) any
\n contaminated file, virus, worm or Trojan horse originating solely from the
\n Advertisements or Advertiser Content, or (4) solely arising out of or in
\n connection with the ability of the Advertiser Software distributed by AOL
\n hereunder to process calendar date values, including but not limited to,
\n calendar date values from January 1, 1999 through or beyond January 1,
\n 2000, and in processing such calendar values, to operate in accordance with
\n the procured system documentation or whether any or all data fields for
\n calendar date values and data are four digit fields capable of indicating
\n century and millennium or addressing leap years correctly, and (b) any
\n contaminated file, virus, worm or Trojan horse originating solely from the
\n Advertisements or Advertiser Content.<\/p>\n
(ii) AOL hereby agrees to indemnify, defend and hold harmless Advertiser
\n and the officers, directors, agents, affiliates, distributors, franchises
\n and employees of Advertiser from and against all claims, actions,
\n liabilities, losses, expenses, damages and costs (including, without
\n limitation, reasonable attorneys’ fees) that may at any time be incurred by
\n any of them by reason of any claims, suits or proceedings to the extent
\n such claims, suits or proceedings arise out of or are related to: (a) third
\n party claims: (1) for libel, defamation, violation of right of privacy or
\n publicity, copyright infringement, trademark infringement or other
\n infringement of any third party right, fraud, false advertising,
\n misrepresentation, product liability or violation of any law, statute,
\n ordinance, rule or regulation throughout the world in connection with the
\n AOL Promos or content provided by AOL to Advertiser hereunder (collectively
\n referred to as the “AOL Rights Violations”); provided, however, that AOL
\n shall have no such indemnification obligation to the extent that any
\n alleged AOL Rights Violation arises from any (x) modification or other
\n alteration of any AOL Promo or AOL Promo content provided to Advertiser by
\n AOL, without AOL’s prior approval, or (y) (i) use of such AOL Promo or AOL
\n Promo content other than in a manner specified hereunder or authorized by
\n AOL, or (ii) claim based upon the combination of the AOL Promo or AOL Promo
\n content with other content, software technology or materials which AOL has
\n not approved; (2) any infringement of any patent or other intellectual
\n property right which results from the Advertiser Software Exceptions, (3)
\n AOL’s grant of a warranty to any Customer which exceeds the limited
\n warranty provided by Advertiser above, and (4) any material breach by AOL
\n of any duty, representation or warranty under this Insertion Order
\n Agreement, and (b) AOL’s failure to comply with all applicable laws,
\n regulations, authorizations and rules related to the export or re-export of
\n any technical data or online postal services.<\/p>\n
(iii) Each party (the “Indemnitee”) will promptly notify the other party
\n (the “Indemnitor”) of any claim, action or demand (an “Action”) for which
\n indemnity is claimed, permit the Indemnitor to have sole authority to
\n defend and\/or negotiate a settlement of such Action, with counsel of the
\n Indemnitor’s choice and reasonably acceptable to the Indemnitee, and
\n provide reasonable assistance and cooperation to the Indemnitor in the
\n investigation, defense and settlement of such Action at the Indemnitor’s
\n expense. The Indemnitee shall be entitled to participate fully in the
\n defense of any Action at its own expense with counsel of its choice. The
\n Indemnitor shall have no obligation for any settlement that the Indemnitor
\n does not approve in writing; provided that the Indemnitor shall not,
\n without the Indemnitee’s prior written consent, enter into any settlement
\n or compromise that would impose any obligation upon the Indemnitee, impair
\n the rights of the Indemnitee or require the Indemnitee to pay any amount.
\n This section will survive the completion, expiration, termination or
\n cancellation of this Insertion Order Agreement.<\/p>\n
8. Solicitation.
\n ————
\n (a) Advertiser will not send unsolicited, commercial e-mail (i.e., “spam”)
\n through or into AOL’s products or services, absent a prior business
\n relationship, and will comply with any other standard AOL policies and
\n limitations relating to distribution of bulk e-mail solicitations or
\n communications through or into AOL’s products or services (including,
\n without limitation, the requirement that Advertiser provide a prominent and
\n easy means for the recipient to “opt-out” of receiving any future
\n commercial e-mail communications from Advertiser. Advertiser will not use
\n the Advertisement or any other aspect of AOL’s products or services to
\n promote or solicit on behalf of a Competitive Product.<\/p>\n
(b) Advertiser shall ensure that its collection, use and disclosure of
\n information obtained from AOL members under this Insertion Order Agreement
\n (“Member Information”) complies with (i) all applicable laws and
\n regulations and (ii) AOL’s standard privacy policies, available on the AOL
\n Service at the keyword term “Privacy” (or, in the case of Advertiser’s
\n site, Advertiser’s standard privacy policies so long as such policies are
\n prominently published on the site and provide adequate notice, disclosure
\n and choice to users regarding Advertiser’s collection, use and disclosure
\n of user information).<\/p>\n
(c) Advertiser shall ensure that each request of Member Information shall
\n clearly and conspicuously specify to the AOL members at issue the purpose
\n for which the Member Information collected by Advertiser shall be used (the
\n “Specified Purpose”). Advertiser shall limit use of the Member Information
\n to the Specified Purpose. In the case of AOL members who purchase products
\n or services from Advertiser, Advertiser will be entitled to incorporate
\n such members into Advertiser’s aggregate lists of customers; provided that
\n Advertiser shall in no way: (i) disclose Member Information in a manner
\n that identifies AOL members as end-users of an AOL product or service (or
\n in any other manner that could reasonably be expected to facilitate use of
\n such information by or on behalf of a Competitive Product); or (ii)
\n otherwise use such Member Information in connection with marketing of a
\n Competitive Product. This section shall survive the completion, expiration,
\n termination or cancellation of this Insertion Order Agreement.<\/p>\n
9. Miscellaneous. The parties to this Insertion Order Agreement are
\n ————-
\n independent contractors. Neither party is an agent, representative or
\n partner of the other party. Neither party shall have any right, power or
\n authority to enter into any agreement for or on behalf of, or incur any
\n obligation or liability of, or to otherwise bind, the other party. The
\n failure of either party to insist upon or enforce strict performance by the
\n other party of any provision of this Insertion Order Agreement or to
\n exercise any right under this Insertion Order Agreement shall not be
\n construed as a waiver or relinquishment to any extent of such party’s right
\n to assert or rely upon any such provision or right in that or any other
\n instance. Except where otherwise specified herein or in the Insertion
\n Order, the rights and remedies granted to a party under this Insertion
\n Order Agreement are cumulative and in addition to, and not in lieu of, any
\n other rights<\/p>\n
12<\/p>\n
or remedies which the party may possess at law or in equity. Advertiser
\n shall not (i) issue any press releases or public statements concerning the
\n existence or terms of this Insertion Order Agreement or (ii) use, display
\n or modify AOL’s trademarks in any manner absent AOL’s express prior written
\n approval. Either party may terminate this Insertion Order Agreement (a) at
\n any time with written notice to the other party in the event of a material
\n breach of this Insertion Order Agreement by the other party, which remains
\n uncured after thirty days written notice thereof; (b) immediately following
\n written notice to the other party if the other party (1) ceases to do
\n business in the normal course, (2) becomes or is declared insolvent or
\n bankrupt, (3) is the subject of any proceeding related to its liquidation
\n or insolvency (whether voluntary or involuntary) which is not dismissed
\n within ninety (90) calendar days, or (4) makes an assignment for the
\n benefit of creditors. Additionally, in the event of a change of control of
\n Advertiser which results in control of more than 50% of the equity
\n securities of Advertiser or the power to vote for the election of directors
\n or other governing authority of Advertiser by an AOL Competitor , AOL may
\n terminate this Insertion Order Agreement by providing forty five (45) days
\n prior written notice of such intent to terminate. For the purposes hereof,
\n an “AOL Competitor” shall be any entity listed on Exhibit F attached
\n hereto; provided, however, that from time to time AOL shall have the right
\n to add to such list as reasonably determined by AOL, provided that AOL may
\n add to such list no more than once every three months. Notwithstanding the
\n foregoing, to the extent that Advertiser can demonstrate to AOL’s
\n reasonable satisfaction that Advertiser is engaged in negotiations with any
\n third party that is not listed on Exhibit F, which negotiations would
\n result in a change of control of Advertiser as provided herein, AOL shall
\n not have the right to add such third party to the list after Advertiser has
\n so reasonably demonstrated to AOL that Advertiser is in negotiations with
\n such third party. This Insertion Order Agreement sets forth the entire
\n agreement between Advertiser and AOL, and supersedes any and all prior
\n agreements of AOL or Advertiser with respect to the transactions set forth
\n herein. No change, amendment or modification of any provision of this
\n Insertion Order Agreement shall be valid unless set forth in a written
\n instrument signed by the party subject to enforcement of such amendment.
\n Advertiser shall not assign this Insertion Order Agreement or any right,
\n interest or benefit under this Insertion Order Agreement without the prior
\n written consent of AOL. Assumption of the Insertion Order Agreement by any
\n successor to Advertiser (including, without limitation, by way of merger or
\n consolidation) shall be subject to AOL’s prior written approval. Subject to
\n the foregoing, this Insertion Order Agreement shall be fully binding upon,
\n inure to the benefit of and be enforceable by the parties hereto and their
\n respective successors and assigns. In the event that any provision of this
\n Insertion Order Agreement is held invalid by a court with jurisdiction over
\n the Parties to this Insertion Order Agreement, (i) such provision shall be
\n deemed to be restated to reflect as nearly as possible the original
\n intentions of the Parties in accordance with applicable law and (ii) the
\n remaining terms, provisions, covenants and restrictions of this Insertion
\n Order Agreement shall remain in full force and effect. Both parties shall
\n adhere to all applicable laws, regulations and rules relating to the export
\n of technical data and shall not export or re-export any technical data, any
\n products received from the other party or the direct product of such
\n technical data to any proscribed country listed in such applicable laws,
\n regulations and rules unless properly authorized. This Insertion Order
\n Agreement may be executed in counterparts, each of which shall be deemed an
\n original and all of which together shall constitute one and the same
\n document. Except with respect to any claims brought by Advertiser in
\n connection with Exhibit E or with respect to the AOL Promos, this Insertion
\n Order Agreement shall be interpreted, construed and enforced in all
\n respects in accordance with the laws of the Commonwealth of Virginia,
\n except for its conflicts of laws principles. Except as otherwise provided
\n herein, Advertiser hereby irrevocably consents to the exclusive
\n jurisdiction of the courts of the Commonwealth of Virginia and the federal
\n courts situated in the Commonwealth of Virginia in connection with any
\n action arising under this Insertion Order Agreement. With respect to any
\n claims brought by Advertiser in connection with Exhibit E or with respect
\n to the AOL Promos, such claims will be interpreted and enforced in
\n accordance with the laws of the State of California and AOL hereby consents
\n to the exclusive jurisdiction of the courts of the State of California and
\n the federal courts situated in the State of California in connection with
\n any claim brought by Advertiser in connection with Exhibit E or with
\n respect to the AOL Promos.<\/p>\n
13<\/p>\n
EXHIBIT D
\n ———<\/p>\n
AOL TO PROVIDE
\n ————–<\/p>\n
14<\/p>\n
EXHIBIT E
\n ———<\/p>\n
ADVERTISER SOFTWARE DISTRIBUTION TERMS AND CONDITIONS
\n —————————————————–<\/p>\n
1. Terms and Conditions. The following terms and conditions shall govern the
\n ——————–
\n distribution by AOL of the advertiser software.<\/p>\n
2. Definitions. As used in this Exhibit E, the following terms shall have the
\n ———–
\n following meanings:<\/p>\n
“Affiliate” shall mean an entity in which AOL holds at least a nineteen
\n ———
\n percent (19%) equity interest.<\/p>\n
“AOL Client” shall mean the object code form of the client software for
\n ———-
\n Win16, Win32 and Mac developed and distributed by AOL that enables end-
\n users to subscribe to, access and use the AOL Service, and upgrades
\n thereto.<\/p>\n
“Authorized Testing Service” shall mean any third-party person or entity
\n ————————–
\n designated in writing by AOL, in its sole discretion, to offer support and
\n quality assurance services relating to interoperability of third party
\n products with the AOL Client and the AOL Service.<\/p>\n
“Commerce Customer” shall mean any Customer of Advertiser acquired through
\n —————–
\n the distribution of the Advertiser Software by AOL as provided hereunder
\n and who purchases the Advertiser Product at least two times.<\/p>\n
“Customer” shall mean end-user customers of the Advertiser Software.
\n ——– <\/p>\n
“Documentation” shall mean the documentation provided to AOL by Advertiser
\n ————-
\n for use with the Advertiser Software. “Software “License Agreement” shall
\n —————————
\n mean Advertiser’s standard software license agreement between Advertiser
\n and Customers, as provided by Advertiser to AOL for inclusion with the
\n Advertiser Software.<\/p>\n
3. License Grant. Subject to all the terms and conditions of this Insertion
\n ————-
\n Order Agreement, Advertiser hereby grants to AOL and its Affiliates a
\n worldwide, non-exclusive, non-transferable, royalty-free license to use,
\n reproduce, market, promote and distribute to end users through its usual
\n and customary channels of distribution, solely to the limited extent and
\n for the express purposes stated herein, the Advertiser Software in object
\n code form, through CD-ROMs any other physical media containing the AOL
\n client.<\/p>\n
4. Copying\/Reverse Engineering. AOL agrees not to (i) disassemble, decompile
\n —————————
\n or otherwise reverse engineer the Advertiser Software or otherwise attempt
\n to learn the source code, structure, algorithms or ideas underlying the
\n Advertiser Software, (ii) take any action contrary to Advertiser’s Software
\n License Agreement, except as expressly and unambiguously agreed upon by
\n Advertiser, (iii) alter or modify the Advertiser Software except as agreed
\n upon by Advertiser, (iv) attempt to disable any security devices or codes
\n incorporated in the Advertiser Software, or (v) allow or assist others to
\n do any of the foregoing.<\/p>\n
5. Advertiser’s Obligations.
\n ————————
\n (i) Certification Requirements. AOL shall provide to Advertiser a written
\n ————————–
\n copy of, and Advertiser shall comply with, all quality assurance and
\n testing requirements for the Advertiser Software to be distributed by
\n AOL hereunder, as may be reasonably amended by AOL from time to time,
\n and together with any other reasonable quality assurance and testing
\n requirements delivered by AOL in writing (including amendments) to
\n Advertiser, the (“Certification Requirements”).<\/p>\n
(ii) Support and Quality Assurance by the Authorized Testing Service. The
\n —————————————————————
\n Authorized Testing Service shall provide support and quality
\n assurance testing with respect to the Advertiser Software and
\n interoperability of such products with the AOL Client and the AOL
\n Service. Support and quality assurance testing shall be provided on
\n terms and conditions to be worked out between Advertiser and the
\n Authorized Testing Service and at Advertiser’s expense. In connection
\n with the foregoing, Advertiser shall deliver a master copy of the
\n Advertiser Software in object code form, along with any required
\n Documentation to the Authorized Testing Service and AOL no later than
\n May 15, 1999. The Authorized Testing Service shall perform quality
\n assurance testing on the Advertiser Products in accordance with the
\n Certification Requirements. If and when the Authorized Testing
\n Service determines that any such product meets the relevant
\n Certification Requirements, the Authorized Testing Service shall then
\n certify in writing that such product is a “Complying Product”. AOL
\n shall use commercially reasonable efforts, if and to the extent
\n within its control and consistent with the purposes hereof, to help
\n expedite such testing processes by the Authorized Testing Service.<\/p>\n
(iii) AOL Release Approval. AOL shall have the right to inspect the
\n ——————–
\n Complying Product prior to commercial production or public release by
\n AOL under this Agreement. AOL shall, in its discretion (but based
\n upon commercially reasonable factors (including without limitation a
\n change of control of Advertiser, or technical or operational problems
\n or incompatibilities), provide notice of approval or rejection within
\n fifteen (15) business days of receiving certification from the
\n Authorized Testing Service that such product is a Complying Product
\n together with a copy of the Complying Product. AOL shall have no
\n obligation to distribute any copy of the Advertiser Software that has
\n not first obtained release approval from AOL. The parties may
\n negotiate in good faith to cure any circumstance or issue causing AOL
\n to so reject, provided that if AOL does not approve release pursuant
\n to this Section 5(iii), then AOL shall refund to Advertiser any
\n payments made by Advertiser to AOL pursuant to Section 9(i) of this
\n Exhibit E.<\/p>\n
15<\/p>\n
(iv) Re-certification Requirements. Revisions of copies of the Advertiser
\n —————————–
\n Software that have previously been certified by the Authorized
\n Testing Service must be re-certified. For purposes of this provision,
\n a “revision” is defined as any version of a Complying Product that
\n contains programming code that differs materially from the Complying
\n Product. Without limiting the foregoing, revisions include
\n maintenance updates, patches, fixes, and new releases of a Complying
\n Product. Revisions to a Complying Product shall be re-certified
\n according to the Certification Requirements, unless AOL or the
\n Authorized Testing Service first provides to Advertiser in writing a
\n list of “Re-Certification Requirements,” if any, in which case such
\n Re-Certification Requirements shall apply.<\/p>\n
6. AOL’s Distribution Obligations. Subject to the provisions of Section 5
\n ——————————
\n of this Exhibit E, and provided that Advertiser is otherwise in compliance
\n with the provisions of this Insertion Order Agreement, AOL shall distribute
\n the Advertiser Software with a minimum number of [***]* AOL 4.0 CD-ROMs
\n —
\n containing the AOL Client which is sent by AOL in direct marketing programs
\n to prospective AOL customers during the period commencing on May 15, 1999
\n and ending on September 1, 2000 (the “Distribution Period”); provided
\n however, that (i) AOL shall have the right to continue distribution of the
\n Advertiser Software after the Distribution Period has ended subject to the
\n terms and conditions hereof and (ii) if Advertiser shall not have delivered
\n a master copy of the Advertiser Software to the authorized testing service
\n and AOL by May 15, 1999, then AOL shall no longer be obligated to
\n distribute the Advertiser Software with a minimum number of [***]* AOL 4.0
\n —
\n CD-ROMs, and in such event, AOL `s sole obligation will be to distribute
\n the Advertiser Software during the period commencing on the date on which
\n the Advertiser Software becomes a complying product and ending at the end
\n of the Distribution Period. When the end-user installs the AOL Client on
\n the end-user’s system, the Advertiser Software installation program will be
\n automatically copied onto the end-user’s hard drive, and the end-user will
\n be presented with the opportunity to install the Advertiser Software. AOL
\n will distribute the Advertiser Software together with, and subject to, the
\n terms of the Software License Agreement furnished by Advertiser.
\n Notwithstanding the foregoing, (i) once AOL begins distribution of the
\n advertiser software, AOL shall not be obligated to distribute any updates
\n or upgrades to the Advertiser Software, and (ii) AOL reserves the right, in
\n the event of technical problems or incompatibilities (e.g., new “bugs”),
\n excessive usage, or other situations which may adversely affect the user
\n experience or AOL’s costs (collectively, an “Adverse User Situation”), not
\n to include any Advertiser Software on such CD-ROMs (a “Pull”); provided
\n however that, in the event of a Pull, AOL shall deliver written notice
\n thereof to Advertiser within five (5) business days of such Pull. A Pull
\n will remain in effect as long as any Adverse User Situation remains, in
\n AOL’s reasonable discretion. If such Adverse User Situation is not cured to
\n AOL’s reasonable satisfaction within thirty (30) days from such notice,
\n then AOL’s obligations hereunder shall terminate, and Advertiser shall not
\n be obligated to make any further payments under section 9(i) hereof.<\/p>\n
7. Distribution Requirements. End-users who install the Advertiser Software
\n ————————-
\n distributed pursuant to this will be prompted to send an electronic
\n registration to Advertiser the first time they attempt to use the
\n Advertiser Software via the end-user system on which the Advertiser
\n Software is installed. During such electronic registration, Advertiser
\n shall create a process by which such end-user will be identified as a user
\n obtained through the 4.0 CD-ROMs distributed by AOL hereunder. AOL agrees
\n not to interfere with, obfuscate, remove or alter any of the automatic
\n installation mechanisms, electronic registration mechanisms, or patent,
\n copyright or other proprietary rights notices included in the Advertiser
\n Software provided by Advertiser to AOL. AOL’s obligations under this
\n Section 7 shall be contingent upon Advertiser’s delivery of Advertiser
\n Software that has been quality assurance tested in accordance with Section
\n 5 hereof.<\/p>\n
8. Installation and Support. Advertiser shall be solely responsible for
\n ————————
\n providing Customers with installation, maintenance and technical
\n integration support with respect to the Advertiser Software. AOL shall
\n notify Advertiser as soon as possible of AOL’s receipt of any customer
\n requests for support or assistance with respect to the Advertiser Software.<\/p>\n
9. Payments. In connection with AOL’s obligations hereunder, Advertiser shall
\n ——–
\n pay to AOL the following:<\/p>\n
(i) Cash Payments. Advertiser shall pay to AOL a cash amount equal to
\n $400,000 as follows: (a) [***]* on May 15, 1999, (b) [***]* on August
\n — —
\n 1, 1999, (c) [***]* on November 1, 1999, and (d) [***]* on February 1,
\n — —
\n 2000.<\/p>\n
(ii) Bounty Payments. Advertiser shall pay to AOL a bounty payment of
\n [***]*, for each Commerce Customer acquired by Advertiser during the
\n —
\n Term and for a period of three years thereafter. This provision shall
\n survive the termination or expiration of this Insertion Order
\n Agreement.<\/p>\n
* [***] Confidential treatment has been requested for the bracketed
\n portions. The confidential redacted portion has been omitted and
\n filed separately with the Securities and Exchange Commission.<\/p>\n
16<\/p>\n
10. Auditing Rights. Advertiser will maintain complete, clear and accurate
\n records of all expenses, revenues and fees in connection with the
\n performance of this Insertion Order Agreement, including reports which
\n indicate the number of customers acquired as a result of the distribution of
\n the Advertiser Software by AOL, and the number of such customers which
\n become Commerce Customers . For the sole purpose of ensuring compliance with
\n Section 9(ii) of this Insertion Order Agreement, AOL (or its representative)
\n will have the right to conduct a reasonable and necessary inspection of
\n portions of the books and records of Advertiser which are relevant to
\n Advertiser’s performance pursuant to this Insertion Order Agreement. Any
\n such audit may be conducted after twenty (20) business days prior written
\n notice to Advertiser. AOL shall bear the expense of any audit conducted
\n pursuant to this Section 9 unless such audit shows an error in AOL’s favor
\n amounting to a deficiency to AOL in excess of five percent (5%) of the
\n actual amounts paid and\/or payable to AOL hereunder, in which event
\n Advertiser shall bear the reasonable expenses of the audit. Advertiser shall
\n pay AOL the amount of any deficiency discovered by AOL within thirty (30)
\n days after receipt of notice thereof from AOL. This provision shall survive
\n the termination or expiration of this Insertion Order Agreement for an
\n additional three year period.<\/p>\n
17<\/p>\n
EXHIBIT F
\n ———<\/p>\n
Yahoo!
\nExcite
\nSnap!\/CNET
\nInfoseek
\nLycos
\nGeocities
\nTripod
\nHot Bot
\nAmazon.com
\nAT&T Worldnet
\nMindspring
\nEarthlink
\nMCI Internet Services
\nProdigy
\nRoad Runner Group
\n@ Home
\nHotmail
\nJuno
\nWhoWhere
\nIChat
\nTalkCity
\nConcentric
\nJuno
\nErol’s
\nWorldCom
\nMediaOne, Inc. (US West Media Group Subsidiary)
\nMicrosoft Network
\nMicrosoft Corporation
\nNetcom
\nAll Interactive Divisions of RBOCs and CLECs
\nWeb TV
\nAlta Vista
\nMS Verticals (Expedia, Carpoint, MSNBC)
\nPointcast
\nWalt Disney Interactive Services
\nAT&T Interactive Services
\nGTE Interactive Services
\nSprint Interactive Services
\nMSNBC
\nNBC Interactive Services
\nJfax<\/p>\n
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