\nDEMOGRAPHIC TARGETING2 (Run of AOL Service)
\nBased on up to 5 variables, (e.g., households with women, [*]
\nwith seniors, with children, etc.)
\n———————————————————– ———————————————————
\n———————————————————– ———————————————————
\nTARGETED AREAS
\n o Ages & Stages area-Lifestyles Channel
\n o Home and Newsstand areas – Interests Channel [*]
\n o Families – Assorted Screens
\n o Lifestyles – Asssorted Screens
\n o Member Services – Assorted Screens
\n o Research & Learn area- Health Channel
\n o Senior’s Health
\n o Women’s Health Organizations and General
\n o Information
\n o Electra: Mind & Body – Health and Medicine
\n o Electra: Mind & Body – Nutrition
\n o Electra: Careers – Assorted Screens
\n———————————————————– ———————————————————
\n———————————————————– ———————————————————
\nRUN OF CHANNEL:
\n o Electra
\n o Interests Channel
\n o Travel Channel [*]
\n o Personal Finance Channel
\n o Influence Channel
\n———————————————————– ———————————————————
\n———————————————————– ———————————————————
\nAOL FIND:
\n o AOL Find Central [*]
\n o Run-of-AOL-Find
\n———————————————————– ———————————————————
\n———————————————————– ———————————————————
\nCONTINUOUS & SPECIAL PROMOTIONS (see below) [*]
\n———————————————————– ———————————————————
\nTOTAL: [*]
\n———————————————————– ———————————————————
\n<\/c><\/s><\/caption>\n<\/table>\n——————-<\/p>\n
1 In the event the Parties mutually agree to run “pop-up” advertisements, the
\ntotal Impressions Commitment will be adjusted downward accordingly, based on
\nAOL’s rates for such pop-ups. Additionally, the promotions provided hereunder
\nshall be linked to the Affiliated MP Site (or any intermediate screens on the
\nAOL Service as determined by the Parties).<\/p>\n
2 Promotions will be run in minimum insertion orders of one million [*]
\nImpressions. AOL will work with MP to design insertion orders and AOL will
\nensure that the Impressions delivered during the Term do not exceed more than
\n[*] of the inventory on email and chat, subject to MP’s reasonable and usual
\nchoice of demographic variables (in relation to the demographic makeup of the
\noverall AOL audience) and banner availability. To the extent that more than [*]
\nof the aggregate Impressions delivered during any calendar quarter are derived
\nfrom inventory on email and chat, [*]<\/p>\n
13<\/p>\n
CONTINUOUS PROMOTIONS<\/p>\n
Interests Channel:
\no Continuous Promotion on the main screen of the Food area
\no Continuous Promotion in Recipes department of Food area
\no List box on front screen of Food area
\no List box on front screen of Pets area<\/p>\n
Families Channel:
\no List box on front screen of Timesavers area
\no List box on front screen of Parenting area
\no List box on front screen of Babies area
\no List box on front screen of Homebase area<\/p>\n
Health Channel:
\no List box on front screen of Dieting & Weight Loss area (so long as MP links
\n directly to a screen on the Affiliated MP Site which promotes Products
\n directly related to such area)
\no List box on front screen of Eating Well area (so long as MP links directly
\n to a screen on the Affiliated MP Site which promotes Products directly
\n related to such area)<\/p>\n
Shopping Channel:
\no Continuous Promotion in Gourmet Gifts area (or any food or Consumer Packaged
\n Goods related -successor area thereto) (including participation in
\n promotional rotations along with other merchants in such area, provided
\n that, no other merchants (other than an MP Competitor, which shall be less
\n prominent) shall be more prominent than MP in such area)
\no List box on front screen of Home, Kitchen and Garden area
\no List box on front screen of Home Office area (so long as MP (a) links
\n directly to a screen on the Affiliated MP Site which promotes Products
\n directly related to such area and (b) includes a reference to office
\n products (e.g. NetGrocer Office Products) in the description of the List
\n Box)
\no Continuous Promotion in proposed “Store Listing” area (currently contained
\n within the “Search” subchannel of the AOL Shopping Channel)<\/p>\n
SPECIAL PROMOTIONS<\/p>\n
AOL will provided MP with the opportunity to participate in AOL’s special
\npromotional programs currently known as “Deal of the Day,” “Weekly Goods
\nNewsletter” and “Real Deals Newsletter”; provided that (a) any MP Product
\noffered as a Deal of the Day must meet the then generally applicable terms for
\ninclusion (e.g., currently, products must be offered at a 25% discount) and (b)
\nparticipation in each program is subject to AOL’s programming team’s editorial
\ndiscretion.<\/p>\n
KEYWORDS<\/p>\n
The Affiliated MP Site will be accessible from the AOL Service through the use
\nof the keyword “NetGrocer” (or such other keyword as AOL may assign to MP in
\nthe case of a name change by MP); provided, however, that such keyword (i)
\nshall at all times be subject to availability and (ii) shall be a “non-generic”
\ntrademark of MP.<\/p>\n
14<\/p>\n
AOL.COM PROMOTIONS<\/p>\n
The AOL.com Impressions will be distributed in various areas of AOL.com and
\nthrough other AOL web related products including, but not limited to, the areas
\nlisted below. AOL will provide approximately [*] of the AOL.com Impressions
\nduring the first year of this Agreement.<\/p>\n
– AOL.COM – Home Page
\n– AOL NETFIND ON AOL.COM -Home Page and (Industry Keyword Packages
\n– CONTEXTUALLY RELEVANT WEB CENTERS – (Families, Home and Garden, Recipes
\nDepartment) – Integration into areas when available
\n– SHOPPING – Anchor in (i)
\nGourmet Gifts and Grocery Department and (ii) Auctions & Bargains Department
\n– HOMETOWN AOL – Rotational Banner Ads
\n– MY NEWS – Rotational Banner Ads
\n– GENERAL ROTATION BANNER ADVERTISEMENTS – COMPARABLE PROMOTIONS – Other
\ncomparable promotions on the AOL Network, as mutually agreed upon by the
\nParties.<\/p>\n
WEB PRODUCTS<\/p>\n
– AOL INSTANT MESSENGER – Rotational Banner Ads<\/p>\n
The Impressions generated through general rotational banner advertisements and
\nAOL Instant Messenger shall represent no more than [*] of the AOL.com
\nImpressions. To the extent that such Impressions exceed [*] of the AOL.com
\nImpressions, [*] Notwithstanding anything to the contrary contained herein,
\nduring the AOL.com Exclusivity Period, the exclusivity provisions of Section 3
\nshall apply to AOL NetFind solely to the extent that AOL NetFind is accessed
\nand used through AOL.com.<\/p>\n
15<\/p>\n
EXHIBIT B<\/p>\n
DEFINITIONS<\/p>\n
The following definitions will apply to this Agreement:<\/p>\n
ADDITIONAL MP CHANNEL. Any other distribution channel (e.g., an Interactive
\nService other than AOL) through which MP makes available an offering comparable
\nin nature to the Affiliated MP Site.<\/p>\n
ADVERTISING REVENUES. The combination of AOL Advertising Revenues and Internet
\nAdvertising Revenues:<\/p>\n
AOL ADVERTISING REVENUES. (a) Aggregate amounts collected plus the
\n fair market value of any other compensation received (such as barter
\n advertising) by MP, or its agents, as the case may be, arising from
\n the license or sale of advertisements, promotions, links or
\n sponsorships (“Advertisements”) that appear within any pages of the
\n Affiliated MP Site or on any screens or forms preceding, framing or
\n otherwise directly associated with the Affiliated MP Site, less
\n applicable Advertising Sales Commissions and (b) any marketing fees,
\n or any similar fees collected by MP from vendors for direct marketing
\n efforts directed at any AOL Member or AOL User; provided that, with
\n respect to clause (a) above, the standard display by MP of the MP
\n Products in the Affiliated MP Site shall not be considered an
\n Advertisement. Additionally, if at any time after the Effective Date
\n MP shall charge a fee of any kind to the manufacturers or wholesalers
\n of the MP Products for the prominent display or preferred placement of
\n such MP Products in the Affiliated MP Site then such fees shall be
\n considered AOL Advertising Revenues.<\/p>\n
INTERNET ADVERTISING REVENUES. For each Advertisement on a page of the
\n Affiliated MP Site or any MP Interactive Site which is not exclusively
\n available to AOL Users, the product of: (a) the amount collected plus
\n the fair market value of any other compensation received (such as
\n barter advertising) by MP or its agents arising from the license or
\n sale of such Advertisement attributable to a given period of time,
\n less applicable Advertising Sales Commissions and (b) the quotient of
\n (i) Impressions on the page containing such Advertisement by AOL Users
\n for such period of time divided by (ii) total Impressions on the page
\n containing such Advertisement by all users for such period of time
\n (the “Internet Advertising Quotient”) (or such other percentage or
\n formula as is mutually agreed upon in writing by the Parties). With
\n respect to any MP Interactive Site, MP shall be responsible for
\n Internet Advertising Revenues only to the extent that such revenues
\n are derived from AOL Members who access such MP Interactive Site
\n directly from the AOL Service or AOL.com. MP will be responsible for
\n calculating the Internet Advertising Quotient related to Internet
\n Advertising Revenues. For any period during which MP fails to
\n calculate the Internet Advertising Quotient (other than as the sole
\n result of AOL’s failure to provide necessary Impressions information),
\n [*] If MP fails to perform such calculation, then such quotient will
\n be deemed to be one hundred percent (100%).<\/p>\n
ADVERTISING SALES COMMISSION. (i) Actual amounts paid as commission to third
\nparty agencies in connection with the sale of the Advertisement or (ii) [*], in
\nthe event the Party has sold the Advertisement directly and will not be
\ndeducting any third party agency commissions.<\/p>\n
AFFILIATED MP SITE. The customized web site promoted and distributed by AOL
\nhereunder through which MP can market and complete transactions regarding the
\nMP Products.<\/p>\n
AOL INTERACTIVE SITE. Any Interactive Site which is managed, maintained, owned
\nor controlled by AOL or its agents.<\/p>\n
16<\/p>\n
AOL LOOK AND FEEL. The elements of graphics, design, organization,
\npresentation, layout, user interface, navigation and stylistic convention
\n(including the digital implementations thereof) which are generally associated
\nwith Interactive Sites within the AOL Service or AOL.com.<\/p>\n
AOL MEMBER. Any authorized user of the AOL Network, including any sub-accounts
\nusing the AOL Network under an authorized master account.<\/p>\n
AOL NETWORK. (i) The AOL Service, (ii) AOL.com and (iii) any other product or
\nservice owned, operated, distributed or authorized to be distributed by or
\nthrough AOL or its affiliates worldwide (and including those properties
\nexcluded from the definitions of the AOL Service or AOL.com).<\/p>\n
AOL PREFERRED RETAILER. Any third party with which AOL enters into an exclusive
\narrangement with respect to the sale, promotion or distribution of such third
\nparty’s products or services, provided that, other than with respect to the
\nExcluded Products, such products or services are not Consumer Packaged Goods.<\/p>\n
AOL PURCHASER. (i) Any person or entity who enters the Affiliated MP Site from
\nthe AOL Service or AOL.com including, without limitation, from any third party
\narea therein (to the extent entry from such third party area is traceable
\nthrough both Parties’ commercially reasonable efforts), and generates
\nTransaction Revenues (regardless of whether such person or entity provides an
\ne-mail address during registration or entrance to the Affiliated MP Site which
\nincludes a domain other than an “AOL.com” domain); and (ii) any other person or
\nentity who, when purchasing a product, good or service through an MP
\nInteractive Site, provides an AOL.com domain name as part of such person or
\nentity’s e-mail address; provided that (a) any person or entity who enters an
\nMP Interactive Site from any area of the Internet which is controlled by a
\nthird party, and to which third party MP has a payment obligation with respect
\nto such person or entity, [*] and (b) any person or entity who has previously
\nsatisfied the definition of AOL Purchaser will remain an AOL Purchaser, and any
\nsubsequent purchases by such person or entity will also give rise to
\nTransaction Revenues hereunder (and will not be conditioned on the person or
\nentity’s satisfaction of clauses (i) or (ii) above). [*]<\/p>\n
AOL SERVICE. The narrow-band U.S. version of the America Online(R) brand
\nservice, specifically excluding (a) AOL.com or any other AOL Interactive Site,
\n(b) the international versions of the AOL Service (e.g., AOL Japan), (c)
\n“Driveway,” “AOL NetFind(TM),” “AOL Instant Messenger(TM)” or any similar
\nproduct or service offered by or through the U.S. version of the America
\nOnline(R) brand service, (d) any programming or content area offered by or
\nthrough the U.S. version of the America Online(R) brand service over which AOL
\ndoes not exercise complete or substantially complete operational control (e.g.,
\nContent areas owned, maintained or controlled by AOL Studios or other AOL
\naffiliates, “Digital City(TM),” “WorldPlay(TM),” “Entertainment Asylum(TM),”
\nthe “Hub(TM),” or any similar “sub-service,” third-party Content areas, and any
\nInteractive Site containing “members.aol.com” as part of its URL), (e) any
\nyellow pages, white pages, classifieds or other search, directory or review
\nservices or Content offered by or through the U.S. version of the America
\nOnline(R) brand service, (f) any co-branded or private label branded version of
\nthe U.S. version of the America Online(R) brand service, (g) any version of the
\nU.S. version of the America Online(R) brand service distributed through any
\nbroadband distribution platform or through any platform or device other than a
\ndesktop personal computer and (h) any property, feature, product or service
\nwhich AOL or its affiliates may acquire subsequent to the Effective Date.<\/p>\n
AOL USER. Any user of the AOL Service or AOL.com that links to the Affiliated
\nMP Site or any MP Interactive Site through the AOL Service or AOL.com.<\/p>\n
17<\/p>\n
AOL.COM. AOL’s primary Internet-based Interactive Site marketed under the
\n“AOL.COM” brand, specifically excluding (a) the AOL Service, (b) any
\ninternational versions of AOL.com, (c) “Driveway,” “AOL NetFind(TM),” “AOL
\nInstant Messenger” or any similar product or service offered by or through such
\nsite or any other AOL Interactive Site, (d) any programming or content area
\noffered by or through such site or any other AOL Interactive Site over which
\nAOL does not exercise complete or substantially complete operational control
\n(e.g., Content areas owned, maintained or controlled by AOL Studios or other
\nAOL affiliates, “Digital City(TM),” “WorldPlay(TM),” “Entertainment
\nAsylum(TM),” the “Hub(TM),” or any similar “sub-service,” third-party Content
\nareas, and any Interactive Site containing “members.aol.com” as part of its
\nURL), (e) any yellow pages, white pages, classifieds or other search, directory
\nor review services or Content offered by or through such site or any other AOL
\nInteractive Site, (f) any co-branded or private label branded version such
\nsite, (g) any version of such site distributed through any broadband
\ndistribution platform or through any platform or device other than a desktop
\npersonal computer and (h) any property, feature, product or service which AOL
\nor its affiliates may acquire subsequent to the Effective Date.<\/p>\n
CHANGE OF CONTROL. (a) The consummation of a reorganization, merger or
\nconsolidation or sale or other disposition of substantially all of the assets
\nof a party; or (b) the acquisition by any individual, entity or group (within
\nthe meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
\n1933, as amended) of beneficial ownership (within the meaning of Rule 13d-3
\npromulgated under such Act) of more than 50% of either (i) the then outstanding
\nshares of common stock of such party; or (ii) the combined voting power of the
\nthen outstanding voting securities of such party entitled to vote generally in
\nthe election of directors.<\/p>\n
CONSUMER PACKAGED GOODS. Packaged goods that are manufactured for mass market
\nconsumption by companies such as Procter & Gamble, Kraft Food, Coca-Cola, etc.
\nwhich are distributed primarily through traditional supermarkets, grocery
\nstores or convenience stores as determined according to generally available
\ndata published by IRI (e.g. the categories of Products listed on Exhibit D as
\nConsumer Packaged Goods). Consumer Packaged Goods shall not include the
\nExcluded Products or any items manufactured for niche markets (e.g. ethnic
\nfoods, health foods, etc.), produce or specialty products (e.g. Omaha Steaks).<\/p>\n
CONFIDENTIAL INFORMATION. Any information relating to or disclosed in the
\ncourse of the Agreement, which is or should be reasonably understood to be
\nconfidential or proprietary to the disclosing Party, including, but not limited
\nto, the material terms of this Agreement, information about AOL Members, AOL
\nUsers, AOL Purchasers and MP customers, technical processes and formulas,
\nsource codes, product designs, sales, cost and other unpublished financial
\ninformation, product and business plans, projections, and marketing data.
\n“Confidential Information” will not include information (a) already lawfully
\nknown to or independently developed by the receiving Party, (b) generally known
\nto the public, or (c) lawfully obtained from any third party.<\/p>\n
CONTENT. Information, services, materials, features, products, advertisements,
\npromotions, links, pointers and software, including any modifications,
\nupgrades, updates, enhancements and related documentation.<\/p>\n
CONTINUOUS PROMOTION. Any placement, link, advertisement or other promotional
\nspace designated by AOL which is provided on a continuous basis (e.g., AOL’s
\n“Tenant” buttons).<\/p>\n
EXCLUDED PRODUCTS. Any products sold directly by the manufacturer of such
\nproducts, specialty or gourmet products, drug or drug related products,
\ncosmetic or cosmetic related products, fragrance or fragrance related products,
\nspecialty baby or baby-related products, auto or auto-related products,
\nconfectionary or confectionary-related products, film or film-related
\nproducts, specialty hair or hair related products, water treatment products,
\nnewspapers and magazines, toys, vitamins or vitamins related products, office
\nsupplies, pet supplies, software or software related products, videos or video
\nrelated<\/p>\n
18<\/p>\n
products, apparel products, beauty or beauty related products, liquor or liquor
\nrelated products, products sold by entities with which AOL has an exclusivity
\narrangement, and any other products added to the foregoing list by AOL from
\ntime to time as mutually agreed upon by the Parties hereto.<\/p>\n
FINANCING EVENT. At any time after the Effective Date, the occurrence of either
\n(a) the receipt, in a single transaction or series of related transactions, of
\nequity funding of at least Fifteen Million Dollars (US $15,000,000) by MP from
\na private investor or group of investors or (b) an IPO of MP; provided,
\nhowever, that if MP receives funding pursuant to clause (a) of this definition
\nin an amount less than Fifteen Million Dollars (US $15,000,000), MP may not use
\nsuch proceeds to make any payments in connection with any marketing or
\ndistribution arrangement with any third party entered into after the Effective
\nDate which exceed One Hundred Fifty Thousand Dollars (US $150,000)
\nindividually, and Five Hundred Thousand Dollars ($500,000) in the aggregate.
\nNotwithstanding the foregoing, if MP makes the payments required pursuant to
\nSection 4.1(c) hereof, then the foregoing proviso shall be null, void and of no
\nfurther effect.<\/p>\n
GROSS MARGINS. Aggregate Transaction Revenues less, the price paid to suppliers
\nfor the products and\/or services sold, credit card charges, credit card
\nclearing house fees, and warehousing costs.<\/p>\n
IMPRESSION. User exposure to the applicable Promotion, as such exposure may be
\nreasonably determined and measured by AOL in accordance with its standard
\nmethodologies and protocols.<\/p>\n
INTERACTIVE SERVICE. Any entity that offers online or Internet connectivity (or
\nany successor form of connectivity), aggregates and\/or distributes a broad
\nselection of third-party Content, or provides interactive navigational services
\n(including, without limitation, any online service providers, Internet service
\nproviders, WebTV, @Home or other broadband providers, search or directory
\nproviders, “push” product providers such as the Pointcast Network or providers
\nof interactive navigational environments such as Microsoft’s proposed “Active
\nDesktop”, consumer products and services aggregators such as Cendant
\nCorporation).<\/p>\n
INTERACTIVE SITE. Any interactive site or area, including, by way of example
\nand without limitation, (i) an MP site on the World Wide Web portion of the
\nInternet or (ii) a channel or area delivered through a “push” product such as
\nthe Pointcast Network or interactive environment such as Microsoft’s proposed
\n“Active Desktop.”<\/p>\n
IPO. The receipt of equity funding by MP as a result of the initial public
\noffering of securities of MP pursuant to an effective registration statement
\nunder the Securities Act of 1933, as amended.<\/p>\n
LICENSED CONTENT. All Content offered through the Affiliated MP Site pursuant
\nto this Agreement or otherwise provided to AOL by MP for related purposes
\n(e.g., Promotions, AOL “slideshows” , etc.), including in each case, any
\nmodifications, upgrades, updates, enhancements, and related documentation.<\/p>\n
MP INTERACTIVE SITE. Any Interactive Site (other than the Affiliated MP Site)
\nwhich is managed, maintained, owned or controlled by MP or its agents.<\/p>\n
MP COMPETITORS. OnCart, Peapod, Shopper Express, Home Runs, Home Grocer,
\nStreamline, ShopLink, PinkDot; provided that, from time to time, (i) MP upon
\nwritten notice to AOL, shall have the right to add new entities to the
\nforegoing list subject to AOL’s reasonable approval, and (ii) AOL shall have
\nthe right to remove any entity from the foregoing list, subject to MP’s
\nreasonable approval.<\/p>\n
MP PRODUCT. Any product, good or service which MP (or others acting on its
\nbehalf or as distributors) offers, sells, provides, distributes or licenses to
\nAOL Users directly or indirectly through (i) the Affiliated MP Site (including
\nthrough any Interactive Site linked thereto) and which are listed on Exhibit D
\nto the Agreement, (ii) any other online means related to an AOL User’s visit to
\nthe MP Affiliated Site (e.g., e-mail offers following user registration), or
\n(iii) an “offline” means (e.g., toll-free number) for receiving orders<\/p>\n
19<\/p>\n
related to specific offers within the Affiliated MP Site requiring purchasers
\nto reference a specific promotional identifier or tracking code, including,
\nwithout limitation, products sold through surcharged downloads (to the extent
\nexpressly permitted hereunder).<\/p>\n
NEW AOL PURCHASER. Any AOL Purchaser who during the Term purchases MP Products
\non at least [*] separate occasions.<\/p>\n
SUPERMARKET SHOPPING DELIVERY SERVICES. The online promotion, fulfillment of
\norders and\/or retail sale and delivery of a line, or lines of products
\navailable in traditional supermarket or grocery stores (e.g. perishable foods,
\nnon-perishable foods, canned items, toiletries, cosmetics, general
\nmerchandising (e.g. pencils, scotch tape, etc.), etc.).<\/p>\n
THRESHOLD. Gross Margins generated hereunder by MP equal to [*]<\/p>\n
TRANSACTION REVENUES. Aggregate amounts paid by AOL Purchasers in connection
\nwith the sale, licensing, distribution or provision of any MP Products, and
\nexcluding, in each case, handling and shipping charges (provided that if these
\ncharges represent a source of profit for MP, such charges will be included in
\nthe definition of Transaction Revenues), refunds, allowances, offsets,
\ndiscounts credits or chargebacks for returned or canceled goods or services and
\namounts collected for sales or use taxes or duties.<\/p>\n
20<\/p>\n
EXHIBIT C<\/p>\n
MP CROSS-PROMOTION<\/p>\n
Online<\/p>\n
To the extent that MP provides a promotional banner, button, link or other
\npromotional presence (a “Promotional Presence”) to any other Interactive
\nService in an MP Interactive Site, MP shall provide a Promotional Presence to
\nAOL in such MP Interactive Site linking to such areas of the AOL Network as
\ndetermined by AOL, and to the extent that MP provides promotional information
\nabout the products of any other Interactive Service, MP shall provide to AOL a
\nprominent “Try AOL” feature where users can obtain promotional information
\nabout AOL products and services and, at AOL’s option, download or order AOL’s
\nthen-current version of client software for the AOL Service or software for any
\nother AOL products or services (e.g., AOL’s Instant Messenger service) on terms
\nand conditions (including, without limitation, scope, purpose, amount,
\nprominence or regularity) that are no less favorable than the terms and
\nconditions provided to such other Interactive Service.*<\/p>\n
Offline<\/p>\n
In MP’s television, radio and print advertisements and in any publications,
\nprograms, features or other forms of media over which MP exercises at least
\nsufficient editorial control, MP will include:<\/p>\n
o Specific references or mentions (verbally where possible) of the Affiliated
\n MP Site’s availability through America Online(R) at least as prominent as,
\n any reference to any MP interactive site; and<\/p>\n
o For instance, listing of the “URL(s)” the MP interactive site will be
\n accompanied by the AOL “keyword” for the Affiliated MP Site.<\/p>\n
Member Acquisition Programs<\/p>\n
The Parties shall negotiate, in good faith, various AOL member acquisition
\nprograms, including without limitation, the bundling of AOL software with
\nvarious products shipped by MP to existing MP customers who are not AOL
\nMembers.*<\/p>\n
————
\n* AOL will pay MP a one-time standard bounty for each person who registers for
\nthe AOL Network using MP’s special identifier for this promotion and
\nsubsequently pays AOL monthly usage fees across at least three billing cycles
\nfor the use of the AOL Network. Note that if this promotion is delivered
\nthrough Microsoft’s Active Desktop or any other “push” product (an “Operating
\nSystem”), such feature will link users directly to AOL software within the
\nOperating System or direct users without Internet access to an AOL application
\nsetup program within the Operating System (all subject to any standard policies
\nof the Operating System).<\/p>\n
21<\/p>\n
EXHIBIT D<\/p>\n
DESCRIPTION OF MP PRODUCTS AND OTHER CONTENT<\/p>\n
CONSUMER PACKAGED GOODS<\/p>\n
ADULT INCONTINENCE
\nAIR FRESHENERS
\nALL OTHR BREAKFST FOOD
\nANTACIDS
\nASEPTIC JUICES
\nBABY FOOD
\nBABY FRMLA\/ELECTRLYTS
\nBAKED BEANS
\nBAKED GOODS – RFG
\nBAKERY SNACKS
\nBAKING CUPS\/PAPER
\nBAKING MIXES
\nBAKING NEEDS
\nBAKING NUTS
\nBATH PRODUCTS
\nBATTERIES
\nBLEACH
\nBOTTLED JUICES – SS
\nBOTTLED WATER
\nBREADCRUMBS\/BATTERS
\nBREAKFAST MEATS
\nBREATH FRSHNR SPRY\/DR
\nBUTTER
\nCANDLES
\nCANNED HAM
\nCANNED JUICES – SS
\nCANNED\/BOTTLED FRUIT
\nCARAMEL\/TAFFY APPLES
\nCARBONATED BEVERAGES
\nCAT FOOD
\nCAT LITTER
\nCHARCOAL
\nCHEESE
\nCHEESECAKES
\nCHOC CANDY (NON-SEAS)
\nCLD\/ALLGY\/SNS TBLCGH
\nCLEANG TOOLS\/MPS\/BRMS
\nCOCKTAIL MIXES
\nCOCOA MIXES
\nCOFFEE
\nCOFFEE CREAMER – SS
\nCOFFEE FILTERS
\nCOLD CEREAL
\nCOLD\/ALLRGY\/SINUS LIQ
\nCONTRACEPTIVES
\nCOOKIES
\nCOTTAGE CHEESE
\nCOTTON BALLS
\nCRACKERS
\nCREAMS\/CREAMERS
\nCROUTONS
\nCUPS & PLATES
\nDENTURE PRODUCTS
\nDEODORANT
\nDESSERT TOPPINGS
\nDESSERTS – RFG
\nDIAPERS
\nDINNER SAUSAGE
\nDINNERS
\nDIP – SS
\nDISH DETERGENT
\nDOG FOOD
\nDOUGH\/BISCUIT DGH-RFG
\nDRIED FRUIT
\nDRINK MIXES
\nDRY BEANS\/VEGETABLES
\nDRY FRUIT SNACKS
\nEGG SUBSTITUTES
\nENGLISH MUFFINS
\nENTREE\/SIDE DISHES
\nEVAPRATED\/CNDNSED MLK
\nEXT ANALGESIC RUBS
\nEYE\/CONTCT LNS CRE PR
\nFABRIC SOFTENER LIQ
\nFABRIC SOFTENR SHEETS
\nFACIAL TISSUE
\nFEMININE NEEDS
\nFIRELOGS\/FIRESTARTERS
\nFLOOR CLEANERS
\nFLOUR\/MEAL
\nFOIL PANS
\nFOILS & WRAPS
\nFOOD & TRASH BAGS
\nFOOT CARE PRODUCTS
\nFRANKFURTERS
\nFRESH BREAD & ROLLS
\nFRESH EGGS
\nFROSTING
\nFURNITURE POLISH
\nFZ APPETZERS\/SNAC RLS
\nFZ BABY FOOD
\nFZ BAKED GOODS
\nFZ BREAKFAST FOOD
\nFZ COFFEE CREAMER
\nFZ COOKIES
\nFZ CORN ON THE COB
\nFZ DESSERTS\/TOPPING
\nFZ DINNERS\/ENTREES
\nFZ DOUGH
\nFZ FRUIT
\nFZ MEAT
\nFZ NOVELTIES
\nFZ PASTA
\nFZ PET FOODS
\nFZ PIES
\nFZ PIZZA
\nFZ PLAIN VEGETABLES
\nFZ POT PIES
\nFZ POTATOES\/ONIONS
\nFZ POULTRY
\nFZ PREPARED VEGETABLE
\nFZ SEAFOOD
\nFZ SIDE DISHES
\nGELATIN\/PUDDING MIXES
\nGRAVY\/SAUCE MIXES
\nGUM
\nHAIR ACCESSORIES
\nHAIR COLORING
\nHAIR CONDITIONER
\nHAIR SPRAY\/SPRITZ
\nHAIR STYLNG GL\/MOUSSE
\nHAND & BODY LOTION
\nHOME HEALTH DIAGNOSTICS
\nHOME PERM\/RELAXR KITS
\nHOT CEREAL
\nHOUSEHLD CLEANR CLTHS
\nHOUSEHOLD CLEANER
\nHOUSEHOLD LUBRICANTS
\nICE CREAM CONES\/MIXES
\nICE CREAM\/SHERBET
\nINSTANT POTATOES
\nINTERNAL ANALGESICS
\nISOTONICS
\nJELLIES\/JAMS\/HONEY
\nJUICE\/BEVERAGE – RFG
\nJUICE\/DRNK CONCEN-RFG
\nJUICE\/DRNK CONCEN-SS
\nJUICES – FROZEN
\nLARD
\nLAUNDRY CARE
\nLAUNDRY DETERGENT
\nLAXATIVES
\nLIGHT BULBS
\nLUNCHEON MEATS
\nLUNCHES – RFG
\nMARGRNE\/SPRD\/BUTTR BL
\nMARSHMALLOWS
\nMAYONNAISE
\nMEAT
\nMEAT PIES
\nMEXICAN SAUCE
\nMILK
\nMISC HEALTH REMEDIES
\nMISC HLTH REMDY TABLT
\nMISC. SNACKS
\nMLK FLAVRNG\/DRNK MXES
\nMOIST TOWELETTES
\nMOUTHWASH
\nMUSTARD & KETCHUP
\nNON-CHOC CAND NON-SEA
\nNON-FRUIT DRINKS – SS
\nORIENTAL FOOD
\nOTHER FROZEN FOODS
\nOTHER RFG PRODUCTS
\nPANCAKE MIXES
\nPANTYHOSE\/NYLONS
\nPAPER NAPKINS
\nPAPER TOWELS
\nPASTA
\nPASTA – RFG
\nPASTRY\/DOUGHNUTS
\nPEANUT BUTTER
\nPEST CONTROL
\nPICKLES\/RELISH – RFG
\nPICKLES\/RELISH\/OLIVES
\nPIES & CAKES
\nPIZZA – RFG<\/p>\n
22<\/p>\n
PIZZA PRODUCTS
\nPLASTIC BOTTLES
\nPOPCORN\/POPCORN OIL
\nPOWDERED MILK
\nPRODUCE RINSE
\nRAZORS
\nRFG DIPS
\nRFG TORTLA\/EGGRL\/WNTN
\nRICE
\nRICE\/POPCORN CAKES
\nRUG\/UPHOLSTERY CLEANR
\nSALAD DRESSING – RFG
\nSALAD DRESSINGS – SS
\nSALAD TOPPINGS
\nSALTY SNACKS
\nSANITARY NPKINS\/TMPNS
\nSAUCE SEAFOOD – RFG
\nSEAFOOD -SS
\nSEAS\/ASSORTED CANDY
\nSHAMPOO
\nSHAVG LTION\/MENS FRGR
\nSHORTENING & OIL
\nSKIN CARE
\nSLEEPING REMEDIES
\nSNAC BARS\/GRANOLA BRS
\nSNACK NUTS\/SEEDS
\nSOAP
\nSOAP DISHES
\nSOUP
\nSOUR CREAM
\nSPAGHETTI\/ITALIAN SAU
\nSPICES\/SEASONINGS
\nSPONGES
\nSPREADS – RFG
\nSTUFFING MIXES
\nSUGAR
\nSUGAR SUBSTITUTES
\nSUNTAN PRODUCTS
\nSYRUP\/MOLASSES
\nTEA – BAGS\/LOOSE
\nTEA – READY-TO-DRINK
\nTEA – INSTANT TEA MIXES
\nTOILET TISSUE
\nTOMATO PRODUCTS
\nTOOTHBRSH\/DNTAL ACCES
\nTOOTHBRUSH HOLDERS
\nTOOTHPASTE
\nVEGETABLES
\nVINEGAR
\nVITAMINS
\nWGT CON\/NTRTN LIQ\/PWD
\nWGT CTRL CANDY\/TABLTS
\nYOGURT<\/p>\n
NON-CONSUMER PACKAGED GOODS<\/p>\n
ALL OTHER DELI
\nANTI-SMOKING PRODUCTS
\nAPPAREL
\nARTS & CRAFTS
\nAUTMBIL FLUIDS\/ANTFRZ
\nAUTMBIL WAXES\/PLISHES
\nBABY ACCESSORIES
\nBABY NEEDS
\nBEER & ALE
\nBLNK AUDIO\/VIDEO CASS
\nBOOKS
\nCIGARETTES
\nCOSMETIC STORAGE
\nCOSMETICS – FACIAL
\nCOSMETICS – NAIL
\nCOUGH SYRUP
\nDISPOSABLE CAMERAS
\nFILM
\nFIRST AID ACCESSORIES
\nFIRST AID TREATMENT
\nFLASHBULBS
\nFLORAL
\nFRAGRANCES
\nHAIR GROWTH PRODUCTS
\nLIQUOR
\nMEXICAN FOODS
\nMOTOR OIL
\nMUSIC CDS
\nNASAL PRODUCTS
\nNEWSPAPERS AND MAGAZINES
\nMEDICINES
\nOFFICE \/ STATIONERY
\nPET SUPPLIES
\nPOOL\/SPA CHEMICALS
\nSHOE PLISH&ACCESSRIES
\nSTAMPS
\nTAPE
\nTIGHTS\/SOCKS
\nTOBACCO PRODUCTS
\nTOYS
\nVIDEO TAPE
\nVIDEO TAPE – RECORDED
\nWATR FILTRTION DVICES
\nWATR SFTNRS\/TREATMNT
\nWINE
\nWINE COOLERS<\/p>\n
23<\/p>\n
EXHIBIT E<\/p>\n
OPERATING STANDARDS<\/p>\n
1. General. The Affiliated MP Site (including the MP Products and other Content
\n contained therein) will be one of the leading online grocery stores in the
\n online grocery delivery industry, as determined by each of the following
\n methods: (a) based on a cross-section of third-party reviewers who are
\n recognized authorities in such industry and (b) with respect to all material
\n quality averages or standards in such industry, including each of the
\n following: (i) pricing of MP Products, (ii) scope and selection of MP
\n Products (e.g., national vs. private label brands), (iii) quality of MP
\n Products, (iv) customer service and fulfillment associated with the
\n marketing and sale of MP Products (e.g. quality and speed of delivery
\n service) and (v) ease of use. In addition, the Affiliated MP Site will, with
\n respect to clauses (iii), (iv) and (v) above, be generally competitive with
\n that which is offered by any MP Competitor generally..<\/p>\n
2. Hosting; Capacity. MP will provide all computer servers, routers, switches
\n and associated hardware in an amount reasonably necessary to meet
\n anticipated traffic demands, adequate power supply (including generator
\n back-up) and HVAC, adequate insurance, adequate service contracts and all
\n necessary equipment racks, floor space, network cabling and power
\n distribution to support the Affiliated MP Site. In the event MP fails to
\n satisfy this requirement AOL will have the right (in addition to any other
\n remedies available to AOL hereunder) to regulate the Promotions to the
\n extent necessary to minimize user delays until such time as MP corrects its
\n infrastructure deficiencies.<\/p>\n
3. Speed; Accessibility. MP will use all commercially reasonable best efforts
\n to ensure that the performance and availability of the Affiliated MP Site
\n (a) is monitored on a continuous, 24\/7 basis and (b) remains competitive in
\n all material respects with the performance and availability of other similar
\n sites based on similar form technology. MP will ensure that: (a) the
\n functionality and features within the Affiliated MP Site are optimized for
\n the client software then in use by AOL Users; and (b) the Affiliated MP Site
\n is designed and populated in a manner that minimizes delays when AOL Users
\n attempt to access such site.<\/p>\n
4. User Interface. MP will use all commercially reasonable efforts to maintain
\n a graphical user interface within the Affiliated MP Site that is competitive
\n in all material respects with interfaces of other similar sites based on
\n similar technology. AOL reserves the right to conduct focus group testing to
\n assess compliance herewith.<\/p>\n
5. Service Level Response. MP agrees to provide the following service levels in
\n response to problems with or improvements to the Affiliated MP Site:<\/p>\n
o For material functions of software that are or have become substantially
\n inoperable, MP will provide a bug fix or workaround within two (2)
\n business days after the first report of such error.<\/p>\n
o For functions of the software that are impaired or otherwise fail to
\n operate in accordance with agreed upon specifications, MP will provide a
\n bug fix or workaround within three (3) business days after the first
\n report of such error.<\/p>\n
o For errors disabling only certain non-essential functions, MP will
\n provide a bug fix or workaround within sixty (60) days after the first
\n report of such error.<\/p>\n
o For all other errors, MP will address these requests on a case-by-case
\n basis as soon as reasonably feasible.<\/p>\n
6. Monitoring. AOL Network Operations Center will work with a MP-designated
\n technical contact in the event of any performance malfunction or other
\n emergency related to the Affiliated MP Site and will either assist or work
\n in parallel with MP’s contact using MP tools and procedures, as applicable.
\n The Parties will develop a process to monitor performance and AOL Member
\n behavior with respect to access, capacity, security and related issues both
\n during normal operations and during special promotions\/events.<\/p>\n
7. Telecommunications. The Parties agree to explore encryption methodology to
\n secure data communications between the Parties’ data centers. The network
\n between the Parties will be configured such that no single component failure
\n will significantly impact AOL Users. The network will be sized such that no
\n single line runs at more than 70% average utilization for a 5-minute peak in
\n a daily period.<\/p>\n
8. Security Review. MP and AOL will work together to perform an initial
\n security review of, and to perform tests of, the MP system, network, and
\n service security in order to evaluate the security risks and provide
\n recommendations to MP, including periodic follow-up reviews as reasonably
\n required by MP or AOL. MP will fix any security risks or breaches of
\n security as may be identified by AOL’s Operations Security and not
\n reasonably disagreed with by MP. Specific services to be performed on behalf
\n of AOL’s Operations Security team will be as determined by AOL in its sole
\n discretion.<\/p>\n
9. Technical Performance. MP will perform the following technical obligations
\n (and any updates thereto provided by AOL from time to time):<\/p>\n
o MP will design the Affiliated MP Site to support the Windows version of
\n the Microsoft Internet Explorer 4.0 browser, and make commercially
\n reasonable efforts to support all other AOL browsers listed at:
\n “http:\/\/webmaster.info.aol.com\/BrowTable.html.”<\/p>\n
o MP will configure the server from which it serves the site to examine the
\n HTTP User-Agent field in order to identify the “AOL Member-Agents” listed
\n at: “http:\/\/webmaster.info.aol.com\/Brow2Text.html.”<\/p>\n
o MP will design its site to support HTTP 1.0 or later protocol as defined
\n in RFC 1945 (available at “http:\/\/ds.internic.net\/rfc\/rfc1945.text”) and
\n to adhere to AOL’s parameters for refreshing cached information listed at
\n “http:\/\/webmaster.info.aol.com\/CacheText.html.”<\/p>\n
24<\/p>\n
EXHIBIT F<\/p>\n
STANDARD ONLINE COMMERCE TERMS & CONDITIONS<\/p>\n
1. AOL Network Distribution. MP will not authorize or permit any third party
\n to distribute or promote the MP Products or any MP Interactive Site through
\n the AOL Network absent AOL’s prior written approval, which approval shall
\n not be unreasonably withheld. The Promotions and any other promotion or
\n advertisement purchased from or provided by AOL will link only to the
\n Affiliate MP Site.<\/p>\n
2. Provision of Other Content. In the event that AOL notifies MP that (i) as
\n reasonably determined by AOL, any Content within the Affiliated MP Site
\n violates AOL’s then-standard Terms of Service (as set forth on the America
\n Online(R) brand service), the terms of this Agreement or any other
\n standard, written AOL policy or (ii) AOL reasonably objects to the
\n inclusion of any Content within the Affiliated MP Site (other than any
\n specific items of Content which may be expressly identified in this
\n Agreement), then MP will take commercially reasonable steps to block access
\n by AOL Users to such Content using MP’s then-available technology. In the
\n event that MP cannot, through its commercially reasonable efforts, block
\n access by AOL Users to the Content in question, then MP will provide AOL
\n prompt written notice of such fact. AOL may then, at its option, restrict
\n access from the AOL Network to the Content in question using technology
\n available to AOL. MP will cooperate with AOL’s reasonable requests to the
\n extent AOL elects to implement any such access restrictions.<\/p>\n
3. Contests. MP will take all steps necessary to ensure that any contest,
\n sweepstakes or similar promotion conducted or promoted through the
\n Affiliated MP Site (a “Contest”) complies with all applicable federal,
\n state and local laws and regulations.<\/p>\n
4. Navigational Icons. Subject to the prior consent of MP, which consent will
\n not be unreasonably withheld, AOL will be entitled to establish
\n navigational icons, links and pointers connecting the Affiliated MP Site
\n (or portions thereof) with other content areas on or outside of the AOL
\n Network.<\/p>\n
5. Disclaimers. Upon AOL’s request, MP agrees to include within the Affiliated
\n MP Site a product disclaimer (the specific form and substance to be
\n mutually agreed upon by the Parties) indicating that transactions are
\n solely between MP and AOL Users purchasing MP Products from MP.<\/p>\n
6. AOL Look and Feel. MP acknowledges and agrees that AOL will own all right,
\n title and interest in and to the elements of graphics, design,
\n organization, presentation, layout, user interface, navigation and
\n stylistic convention (including the digital implementations thereof) which
\n are generally associated with online areas contained within the AOL Network
\n (“the AOL Look and Feel”), subject to MP’s ownership rights in any MP
\n trademarks or copyrighted material within the Affiliated MP Site.<\/p>\n
7. Management of the Affiliated MP Site. MP will manage, review, delete, edit,
\n create, update and otherwise manage all MP Products available on or through
\n the Affiliated MP Site, in a timely and professional manner and in
\n accordance with the terms of this Agreement. MP will ensure that each
\n Affiliated MP Site is current, accurate and well-organized at all times. MP
\n warrants that the MP Products and other Content contained therein: (i) will
\n not infringe on or violate any copyright, trademark, U.S. patent or any
\n other third party right, including without limitation, any music
\n performance or other music-related rights; (ii) will not violate AOL’s
\n then-applicable Terms of Service; and (iii) will not violate any applicable
\n law or regulation, including those relating to contests, sweepstakes or
\n similar promotions. Additionally, MP represents and warrants that it owns
\n or has a valid license to all rights to any Licensed Content used in AOL
\n “slideshow” or other formats embodying elements such as graphics, animation
\n and sound, free and clear of all encumbrances and without violating the
\n rights of any other person or entity. MP also warrants that a reasonable
\n basis exists for all MP Product performance or comparison claims appearing
\n through the Affiliated MP Site. AOL will have no obligations with respect
\n to the MP Products available on or through the Affiliated MP Site,
\n including, but not limited to, any duty to review or monitor any such MP
\n Products.<\/p>\n
8. Duty to Inform. MP will promptly inform AOL of any information related to
\n the MP Products or Affiliated MP Site of which MP has actual knowledge
\n which is reasonably likely to lead to a claim, demand, or liability of or
\n against AOL and\/or its affiliates by any third party.<\/p>\n
9. Customer Service. It is the sole responsibility of MP to provide customer
\n service to persons or entities purchasing MP Products through the AOL
\n Network (“Customers”). MP will bear full responsibility for all customer
\n service, including without limitation, order processing, billing,
\n fulfillment, shipment, collection and other customer service associated
\n with any MP Products offered, sold or licensed through the Affiliated MP
\n Site, and AOL will have no obligations whatsoever with respect thereto. MP
\n will receive all emails from Customers via a computer available to MP’s
\n customer service staff and generally respond to such emails within one
\n business day of receipt. MP will receive all orders electronically and
\n generally process all orders within one business day of receipt, provided
\n MP Products ordered are not advance order items. MP will ensure that all
\n orders of MP Products are received, processed, fulfilled and delivered on a
\n timely and professional basis. MP will prominently display for the benefit
\n of AOL Users who purchase MP Products through such Affiliated MP Site its
\n money back satisfaction guarantee policy. MP will bear all responsibility
\n for compliance with federal, state and local laws in the event that MP
\n Products are out of stock or are no longer available at the time an order
\n is received. MP will also comply with the requirements of any federal,
\n state or local consumer protection or disclosure law. Payment for MP
\n Products will be collected by MP directly from customers. MP’s order
\n fulfillment operation will be subject to AOL’s reasonable review.<\/p>\n
10. Production Work. In the event that MP requests AOL’s production assistance
\n in connection with (i) ongoing programming and maintenance related to the
\n Affiliated MP Site, (ii) a redesign of or addition to the Affiliated MP
\n Site (e.g., a change to an existing screen format or<\/p>\n
25<\/p>\n
construction of a new custom form), (iii) production to modify work
\n performed by a third party provider or (iv) any other type of production
\n work, MP will work with AOL to develop a detailed production plan for the
\n requested production assistance (the “Production Plan”). Following receipt
\n of the final Production Plan, AOL will notify MP of (i) AOL’s availability
\n to perform the requested production work, (ii) the proposed fee or fee
\n structure for the requested production and maintenance work and (iii) the
\n estimated development schedule for such work. To the extent the Parties
\n reach agreement regarding implementation of agreed-upon Production Plan,
\n such agreement will be reflected in a separate work order signed by the
\n Parties. To the extent MP elects to retain a third party provider to
\n perform any such production work, work produced by such third party
\n provider must generally conform to AOL’s production Standards & Practices
\n (a copy of which will be supplied by AOL to MP upon request). The specific
\n production resources which AOL allocates to any production work to be
\n performed on behalf of MP will be as determined by AOL in its sole
\n discretion.<\/p>\n
11. Overhead Accounts. To the extent AOL has granted MP any overhead accounts
\n on the AOL Service, MP will be responsible for the actions taken under or
\n through its overhead accounts, which actions are subject to AOL’s
\n applicable Terms of Service and for any surcharges, including, without
\n limitation, all premium charges, transaction charges, and any applicable
\n communication surcharges incurred by any overhead Account issued to MP, but
\n MP will not be liable for charges incurred by any overhead account relating
\n to AOL’s standard monthly usage fees and standard hourly charges, which
\n charges AOL will bear. Upon the termination of this Agreement, all overhead
\n accounts, related screen names and any associated usage credits or similar
\n rights, will automatically terminate. AOL will have no liability for loss
\n of any data or content related to the proper termination of any overhead
\n account.<\/p>\n
12. AOL User Communications. To the extent MP sends any form of communications
\n to AOL Users, MP will promote the Affiliated MP Site as the location at
\n which to purchase Products (as compared to any more general or other site
\n or location). In addition, MP will not encourage AOL Users to take any
\n action inconsistent with the scope and purpose of this Agreement, including
\n without limitation, the following actions: (a) using Content other than the
\n Licensed Content; (b) bookmarking of Interactive Sites other than the
\n Affiliated MP Site; (c) using Interactive Sites other than those covered by
\n the revenue-sharing provisions herein; (d) changing the default home page
\n on the AOL browser; or (e) using any Interactive Service other than AOL.<\/p>\n
13. Merchant Certification Program. MP agrees, to the extent determined by MP
\n to be in its commercially reasonable best interests, to participate in any
\n generally applicable “Certified Merchant” program operated by AOL or its
\n authorized agents or contractors; provided, however, that MP’s failure to
\n so participate may require modifications to Exhibit A. Such program may
\n require merchant participants on an ongoing basis to meet certain
\n reasonable standards relating to provision of electronic commerce through
\n the AOL Network (including, as a minimum, use of 40-bit SSL encryption and
\n if requested by AOL, 128-bit encryption) and may also require the payment
\n of certain reasonable certification fees to the applicable entity operating
\n the program. Each Certified Merchant in good standing will be entitled to
\n place on its affiliated Interactive Site an AOL designed and approved
\n button promoting the merchant’s status as an AOL Certified Merchant.<\/p>\n
14. Navigation Tools. To the extent AOL grants MP any “keywords” on the AOL
\n Service or “search terms” on AOL.com (collectively, “Keywords”), the
\n Keywords will be subject to availability and will consist only of MP’s
\n registered trademarks. AOL reserves the right at any time to revoke MP’s
\n use of any Keywords that are not registered trademarks of MP. To the extent
\n AOL allows AOL Users to “bookmark” the URL or other locator for the MP
\n Affiliated Site, such bookmarks will be subject to AOL’s control at all
\n times. Upon the termination of this Agreement, MP’s rights to any Keywords
\n and bookmarking will terminate.<\/p>\n
26<\/p>\n
1. EXHIBIT G<\/p>\n
STANDARD LEGAL TERMS & CONDITIONS<\/p>\n
1 Promotional Materials\/Press Releases. Each Party will submit to the other
\n Party, for its prior written approval, which will not be unreasonably
\n withheld or delayed, any marketing, advertising, press releases, and all
\n other promotional materials related to the Affiliated MP Site and\/or
\n referencing the other Party and\/or its trade names, trademarks, and service
\n marks (the “Materials”); provided, however, that either Party’s use of
\n screen shots of the Affiliated MP Site for promotional purposes will not
\n require the approval of the other Party so long as America Online(R) is
\n clearly identified as the source of such screen shots. Each Party will
\n solicit and reasonably consider the views of the other Party in designing
\n and implementing such Materials. Once approved, the Materials may be used
\n by a Party and its affiliates for the purpose of promoting the Affiliated
\n MP Site and the content contained therein and reused for such purpose until
\n such approval is withdrawn with reasonable prior notice. In the event such
\n approval is withdrawn, existing inventories of Materials may be depleted.
\n Notwithstanding the foregoing, either Party may issue press releases and
\n other disclosures as required by law or as reasonably advised by legal
\n counsel without the consent of the other Party and in such event, the
\n disclosing Party will use best efforts to provide at least (5) business
\n days prior written notice of such disclosure to the other Party.<\/p>\n
2 License. MP hereby grants AOL a non-exclusive worldwide license to market,
\n license, distribute, reproduce, display, perform, transmit and promote the
\n Licensed Content (or any portion thereof) through such areas or features of
\n the AOL Network as AOL deems appropriate. MP acknowledges and agrees that
\n the foregoing license permits AOL to distribute portions of the Licensed
\n Content in synchronism or timed relation with visual materials prepared by
\n MP or AOL (e.g., as part of an AOL “slideshow”). In addition, AOL Users
\n will have the right to access and use the Affiliated MP Site.<\/p>\n
3 Trademark License. In designing and implementing the Materials and subject
\n to the other provisions contained herein, MP will be entitled to use the
\n following trade names, trademarks, and service marks of AOL: the “America
\n Online(R)” brand service, “AOL(TM)” service\/software and AOL’s triangle
\n logo; and AOL and its affiliates will be entitled to use the trade names,
\n trademarks, and service marks of MP (collectively, together with the AOL
\n marks listed above, the “Marks”); provided that each Party: (i) does not
\n create a unitary composite mark involving a Mark of the other Party without
\n the prior written approval of such other Party; and (ii) displays symbols
\n and notices clearly and sufficiently indicating the trademark status and
\n ownership of the other Party’s Marks in accordance with applicable
\n trademark law and practice.<\/p>\n
4 Ownership of Trademarks. Each Party acknowledges the ownership of the other
\n Party in the Marks of the other Party and agrees that all use of the other
\n Party’s Marks will inure to the benefit, and be on behalf, of the other
\n Party. Each Party acknowledges that its utilization of the other Party’s
\n Marks will not create in it, nor will it represent it has, any right,
\n title, or interest in or to such Marks other than the licenses expressly
\n granted herein. Each Party agrees not to do anything contesting or
\n impairing the trademark rights of the other Party.<\/p>\n
5 Quality Standards. Each Party agrees that the nature and quality of its
\n products and services supplied in connection with the other Party’s Marks
\n will conform to quality standards set by the other Party. Each Party agrees
\n to supply the other Party, upon request, with a reasonable number of
\n samples of any Materials publicly disseminated by such Party which utilize
\n the other Party’s Marks. Each Party will comply with all applicable laws,
\n regulations, and customs and obtain any required government approvals
\n pertaining to use of the other Party’s marks.<\/p>\n
6 Infringement Proceedings. Each Party agrees to promptly notify the other
\n Party of any unauthorized use of the other Party’s Marks of which it has
\n actual knowledge. Each Party will have the sole right and discretion to
\n bring proceedings alleging infringement of its Marks or unfair competition
\n related thereto; provided, however, that each Party agrees to provide the
\n other Party with its reasonable cooperation and assistance with respect to
\n any such infringement proceedings.<\/p>\n
7 Representations and Warranties. Each Party represents and warrants to the
\n other Party that: (i) such Party has the full corporate right, power and
\n authority to enter into this Agreement and to perform the acts required of
\n it hereunder; (ii) the execution of this Agreement by such Party, and the
\n performance by such Party of its obligations and duties hereunder, do not
\n and will not violate any agreement to which such Party is a party or by
\n which it is otherwise bound; (iii) when executed and delivered by such
\n Party, this Agreement will constitute the legal, valid and binding
\n obligation of such Party, enforceable against such Party in accordance with
\n its terms; and (iv) such Party acknowledges that the other Party makes no
\n representations, warranties or agreements related to the subject matter
\n hereof that are not expressly provided for in this Agreement. MP hereby
\n represents and warrants that it possesses all authorizations, approvals,
\n consents, licenses, permits, certificates or other rights and permissions
\n necessary to sell the MP Products.<\/p>\n
8 Confidentiality. Each Party acknowledges that Confidential Information may
\n be disclosed to the other Party during the course of this 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 Agreement, and for a period of three
\n years following expiration or termination of this Agreement, to prevent the
\n duplication or disclosure of Confidential Information of the other Party,
\n other than by or to its employees or agents who must have access to such
\n Confidential Information to perform such Party’s obligations hereunder, who
\n will each agree to comply with this section. Notwithstanding the foregoing,
\n either Party may issue a press release or other disclosure containing
\n Confidential Information without the consent of the other Party, to the
\n extent such disclosure is required by law, rule, regulation or government
\n or court order. In such event, the disclosing Party will use best efforts
\n to provide at least five (5) business days prior written notice of such
\n proposed disclosure to the other Party, and where practical, shall allow
\n the other Party to review such disclosure. Further, in the event such
\n disclosure is required of either Party, or is reasonably<\/p>\n
27<\/p>\n
determined by either Party’s counsel to be necessary under the laws, rules
\n or regulations of the Securities and Exchange Commission or any other
\n applicable governing body, such Party will (i) redact mutually agreed-upon
\n portions of this Agreement to the fullest extent permitted under applicable
\n laws, rules and regulations and (ii) submit a request to such governing
\n body that such portions and other provisions of this Agreement receive
\n confidential treatment under the laws, rules and regulations of the
\n Securities and Exchange Commission or otherwise be held in the strictest
\n confidence to the fullest extent permitted under the laws, rules or
\n regulations of any other applicable governing body.<\/p>\n
9 Limitation of Liability; Disclaimer; Indemnification. LIABILITY. UNDER NO
\n CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT,
\n INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY
\n HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH
\n OF THE AGREEMENT, THE SALE OF MP PRODUCTS, THE FRAUDULENT PURCHASE OF MP
\n PRODUCTS, THE USE OR INABILITY TO USE THE AOL NETWORK, THE AOL SERVICE,
\n AOL.COM OR THE AFFILIATED MP SITE, OR ARISING FROM ANY OTHER PROVISION OF
\n THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED
\n PROFITS OR LOST BUSINESS (“COLLECTIVELY, “DISCLAIMED DAMAGES”); PROVIDED
\n THAT EACH PARTY WILL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY
\n DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO
\n INDEMNIFICATION PURSUANT TO SECTION 9.2. EXCEPT AS PROVIDED IN SECTION 9.2,
\n NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR MORE THAN THE AGGREGATE
\n AMOUNT OF PAYMENT OBLIGATIONS OWED TO OR PAID BY THE OTHER PARTY HEREUNDER,
\n AS APPLICABLE; PROVIDED THAT EACH PARTY WILL REMAIN LIABLE FOR THE
\n AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY
\n PURSUANT TO SECTION 4.<\/p>\n
9.1 NO ADDITIONAL WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
\n NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY
\n REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AOL
\n NETWORK, THE AOL SERVICE, AOL.COM OR THE AFFILIATED MP SITE, INCLUDING ANY
\n IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND
\n IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
\n WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AOL SPECIFICALLY
\n DISCLAIMS ANY WARRANTY REGARDING THE PROFITABILITY OF THE AFFILIATED MP
\n SITE.<\/p>\n
9.2 Indemnity. Either Party will defend, indemnify, save and hold harmless the
\n other Party and the officers, directors, agents, affiliates, distributors,
\n franchisees and employees of the other Party from any and all third party
\n claims, demands, liabilities, costs or expenses, including reasonable
\n attorneys’ fees (“Liabilities”), resulting from the indemnifying Party’s
\n material breach of any duty, representation, or warranty of this Agreement,
\n except where Liabilities result from the gross negligence or knowing and
\n willful misconduct of the other Party.<\/p>\n
9.3 Claims. Each Party agrees to (i) promptly notify the other Party in writing
\n of any indemnifiable claim and give the other Party the opportunity to
\n defend or negotiate a settlement of any such claim at such other Party’s
\n expense, and (ii) cooperate fully with the other Party, at that other
\n Party’s expense, in defending or settling such claim. Each Party reserves
\n the right, at its own expense, to assume the exclusive defense and control
\n of any matter otherwise subject to indemnification by the other Party
\n hereunder, and in such event, the other Party will have no further
\n obligation to provide indemnification for such matter hereunder.<\/p>\n
9.4 Acknowledgment. AOL and MP each acknowledges that the provisions of this
\n Agreement were negotiated to reflect an informed, voluntary allocation
\n between them of all risks (both known and unknown) associated with the
\n transactions contemplated hereunder. The limitations and disclaimers
\n related to warranties and liability contained in this Agreement are
\n intended to limit the circumstances and extent of liability. The provisions
\n of this Section 9 will be enforceable independent of and severable from any
\n other enforceable or unenforceable provision of this Agreement.<\/p>\n
10 Solicitation of AOL Users. During the term of this Agreement, and for the
\n two-year period following the expiration or termination of this Agreement,
\n neither MP nor its agents will use the AOL Network to (i) solicit, or
\n participate in the solicitation of AOL Users when that solicitation is for
\n the benefit of any entity which could reasonably be construed to be or
\n become in competition with AOL or (ii) promote any services which could
\n reasonably be construed to be in competition with AOL including, but not
\n limited to, services available through the Internet. In addition, MP may
\n not send AOL Users e-mail communications promoting MP’s Products through
\n the AOL Network without a “Prior Business Relationship.” For purposes of
\n this Agreement, a “Prior Business Relationship” will mean that the AOL User
\n has either (i) engaged in a transaction with MP through the AOL Network or
\n (ii) voluntarily provided information to MP through a contest,
\n registration, or other communication, which included notice to the AOL User
\n that the information provided by the AOL User could result in an e-mail
\n being sent to that AOL User by MP or its agents. A Prior Business
\n Relationship does not exist by virtue of an AOL User’s visit to an
\n Affiliated MP Site (absent the elements above). More generally, MP will be
\n subject to any standard policies regarding e-mail distribution through the
\n AOL Network which AOL may implement.<\/p>\n
11 Collection of User Information. MP is prohibited from collecting AOL Member
\n screennames or AOL User email addresses from public or private areas of the
\n AOL Network, except as specifically provided below. MP will ensure that any
\n survey, questionnaire or other means of collecting AOL Member screennames
\n or AOL User email addresses, names, addresses or other identifying
\n information (“User Information”), including, without limitation, requests
\n directed to specific AOL Member screennames or AOL User email addresses and
\n automated methods of collecting such information (an “Information Request”)
\n complies with (i) all applicable laws and regulations and (ii) any privacy
\n policies which have been issued by AOL in writing during the Term (the “AOL
\n Privacy Policies”). Each Information Request will clearly and conspicuously
\n specify to the AOL Users at issue the purpose for which User<\/p>\n
28<\/p>\n
Information collected through the Information Request will be used (the
\n “Specified Purpose”).<\/p>\n
12 Use of User Information. MP will restrict use of the User Information
\n collected through an Information Request to the Specified Purpose. In no
\n event will MP (i) provide User Information to any third party (except to
\n the extent specifically (a) permitted under the AOL Privacy Policies or (b)
\n authorized by the members in question), (ii) rent, sell or barter User
\n Information, (iii) identify, promote or otherwise disclose such User
\n Information in a manner that identifies AOL Users as end-users of the AOL
\n Service, AOL.com or the AOL Network or (iv) otherwise use any User
\n Information in contravention of Section 10 above. Notwithstanding the
\n foregoing, in the case of AOL Members who purchase MP Products from MP, MP
\n will be entitled to use User Information from such AOL Members as part of
\n MP’s aggregate list of Customers; provided that MP’s use does not in any
\n way identify, promote or otherwise disclose such User Information in a
\n manner that identifies such AOL Members as end-users of the AOL Service,
\n AOL.com or the AOL Network. In addition, MP will not use any User
\n Information for any purpose (including any Specified Purpose) not directly
\n related to the MP Products or the business purpose of the Affiliated MP
\n Site. Provided that, MP will not use any rights granted pursuant to this
\n provision to direct or drive individuals or entities to any other
\n Interactive Site other than the Affiliated MP Site.<\/p>\n
13 Excuse. Neither Party will be liable for, or be considered in breach of or
\n default under this Agreement on account of, any delay or failure to perform
\n as required by this Agreement as a result of any causes or conditions which
\n are beyond such Party’s reasonable control and which such Party is unable
\n to overcome by the exercise of reasonable diligence; provided, however,
\n that the other Party may terminate the Agreement upon written notice if
\n such cause or condition persists for more than sixty (60) days.<\/p>\n
14 Independent Contractors. The Parties to this Agreement are independent
\n contractors. Neither Party is an agent, representative or partner of the
\n other Party. Neither Party will have any right, power or authority to enter
\n into any agreement for or on behalf of, or incur any obligation or
\n liability of, or to otherwise bind, the other Party. This Agreement will
\n not be interpreted or construed to create an association, agency, joint
\n venture or partnership between the Parties or to impose any liability
\n attributable to such a relationship upon either Party.<\/p>\n
15 Notice. Any notice, approval, request, authorization, direction or other
\n communication under this Agreement will be given in writing and will be
\n deemed to have been delivered and given for all purposes on the delivery
\n date if delivered by electronic mail to screenname “AOLNotice@aol.com or
\n (i) on the delivery date if delivered personally to the Party to whom the
\n same is directed; (ii) one business day after deposit with a commercial
\n overnight carrier, with written verification of receipt, or (iii) five
\n business days after the mailing date, whether or not actually received, if
\n sent by U.S. mail, return receipt requested, postage and charges prepaid,
\n or any other means of rapid mail delivery for which a receipt is available,
\n to the person(s) specified herein at the address of the Party set forth in
\n the first paragraph of this Agreement. In the case of AOL, such notice will
\n be provided to both the Senior Vice President for Business Affairs and the
\n Deputy General Counsel.<\/p>\n
16 No Waiver. The failure of either Party to insist upon or enforce strict
\n performance by the other Party of any provision of this Agreement or to
\n exercise any right under this Agreement will not be construed as a waiver
\n or relinquishment to any extent of such Party’s right to assert or rely
\n upon any such provision or right in that or any other instance; rather, the
\n same will be and remain in full force and effect.<\/p>\n
17 Return of Information. Upon the expiration or termination of this
\n Agreement, each Party will, upon the written request of the other Party,
\n return or destroy (at the option of the Party receiving the request) all
\n confidential information, documents, manuals and other materials specified
\n the other Party.<\/p>\n
18 Survival. Sections 8 through 12 of this Exhibit G, will survive the
\n completion, expiration, termination or cancellation of this Agreement.<\/p>\n
19 Entire Agreement. This Agreement sets forth the entire agreement and
\n supersedes any and all prior agreements of the Parties with respect to the
\n transactions set forth herein. Neither Party will be bound by, and each
\n Party specifically objects to, any term, condition or other provision which
\n is different from or in addition to the provisions of this Agreement
\n (whether or not it would materially alter this Agreement) and which is
\n proffered by the other Party in any correspondence or other document,
\n unless the Party to be bound thereby specifically agrees to such provision
\n in writing.<\/p>\n
20 Amendment. No change, amendment or modification of any provision of this
\n Agreement will be valid unless set forth in a written instrument signed by
\n the Party subject to enforcement of such amendment, and in the case of AOL,
\n by an executive of at least the same standing to the executive who signed
\n the Agreement.<\/p>\n
21 Further Assurances. Each Party will take such action (including, but not
\n limited to, the execution, acknowledgment and delivery of documents) as may
\n reasonably be requested by any other Party for the implementation or
\n continuing performance of this Agreement.<\/p>\n
22 Assignment. Neither Party will assign this Agreement or any right, interest
\n or benefit under this Agreement without the prior written consent of the
\n other Party; provided that, in the event of a Party’s sale, consolidation,
\n or merger, the other Party’s prior approval shall not be required. Subject
\n to the foregoing, this Agreement will be fully binding upon, inure to the
\n benefit of and be enforceable by the Parties hereto and their respective
\n successors and assigns.<\/p>\n
23 Construction; Severability. In the event that any provision of this
\n Agreement conflicts with the law under which this Agreement is to be
\n construed or if any such provision is held invalid by a court with
\n jurisdiction over the Parties to this Agreement, (i) such provision will 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 Agreement
\n will remain in full force and effect.<\/p>\n
24 Remedies. Except where otherwise specified, the rights and remedies granted
\n to a Party under this Agreement are cumulative and in addition to, and not
\n in lieu of, any other rights or remedies which the Party may possess at law
\n or in equity; provided that, in connection with any dispute hereunder, MP
\n will be not entitled to offset any amounts that<\/p>\n
29<\/p>\n
it claims to be due and payable from AOL against amounts otherwise payable
\n by MP to AOL.<\/p>\n
25 Applicable Law; Jurisdiction. This Agreement will be interpreted, construed
\n and enforced in all respects in accordance with the laws of the
\n Commonwealth of Virginia except for its conflicts of laws principles..<\/p>\n
26 Export Controls. Both Parties will adhere to all applicable laws,
\n regulations and rules relating to the export of technical data and will not
\n export or re-export any technical data, any products received from the
\n other Party or the direct product of such technical data to any proscribed
\n country listed in such applicable laws, regulations and rules unless
\n properly authorized.<\/p>\n
27 Headings. The captions and headings used in this Agreement are inserted for
\n convenience only and will not affect the meaning or interpretation of this
\n Agreement.<\/p>\n
28 Counterparts. This Agreement may be executed in counterparts, each of which
\n will be deemed an original and all of which together will constitute one
\n and the same document.<\/p>\n
30<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6655],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9613,9619],"class_list":["post-42363","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-america-online-inc","corporate_contracts_industries-technology__programming","corporate_contracts_types-operations","corporate_contracts_types-operations__sales"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42363","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42363"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42363"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42363"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42363"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}