\nCOMPUTING CHANNEL PLACEMENT
\n—————————————————————————————
\n1 Channel Main Bottom Feature Product 50% Non-exclusive
\n Promotion screen
\n—————————————————————————————
\n2 Channel Main Rotated Banner 11% Non-exclusive
\n screen
\n—————————————————————————————
\n3 Superstore Main* 1 Promotion Box Permanent Exclusive screen
\n—————————————————————————————
\n4 Superstore Main* Product Search for Hardware Permanent Exclusive screen
\n and Mail Order Software
\n—————————————————————————————
\n5 Superstore Exclusive Integration in Permanent Exclusive screen
\n Hardware Hardware Categories
\n Category* List Box
\n—————————————————————————————
\n6 Superstore Feature Product Promotion- 15 rotations\/mth Exclusive screen
\n Hardware
\n Category*
\n—————————————————————————————
\n7 Superstore Shared Integration in Permanent Non-exclusive
\n Software Software Categories
\n Category* List Box
\n—————————————————————————————
\n8 Superstore Feature Product Promotion- 15 rotations\/mth Non-exclusive
\n Software 50% of total
\n Category*
\n—————————————————————————————
\n9 Companies List Box Listing Permanent Non-exclusive
\n—————————————————————————————
\n10 Companies Banner-Rotated between 11% Non-exclusive
\n nine sponsors
\n—————————————————————————————
\n11 Buyer’s Guide Name Integration and Permanent Exclusive screen
\n Banner
\n—————————————————————————————
\n12 Buyer’s Guide Bottom Feature Product 50% Exclusive screen
\n Button
\n—————————————————————————————
\n13 Miscellaneous Banners Non-exclusive
\n Channel
\n—————————————————————————————
\n14 Weekly Byte- Article links Permanent Exclusive screen
\n Channel
\n Newsletter
\n—————————————————————————————<\/p>\nSHOPPING CHANNEL PLACEMENT
\n—————————————————————————————
\n15 Computer Anchor Permanent Non-exclusive
\n—————————————————————————————
\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
13<\/p>\n
Confidential<\/p>\n
——————————————————————————–
\n Software
\n Department
\n——————————————————————————–
\n16 Computing Anchor Permanent Non-exclusive
\n Hardware
\n Department
\n——————————————————————————–
\n* Computer Superstore is presently being redesigned. The actual item design is
\n subject to change.<\/p>\n
AOL.COM Placement and Integration<\/p>\n
——————————————————————————–
\n# Area Item Frequency
\n——————————————————————————–<\/p>\n
AOL Netfind Timesavers Placement
\n——————————————————————————–
\n1 Buy a Computer Shortcut Permanent Non-exclusive
\n – Main
\n——————————————————————————–
\n2 Home & Family Recipes\/Financial Planning Permanent Non-exclusive
\n – Main Software Store, listing & review
\n——————————————————————————–
\n3 Your Health – Health\/Research Software Permanent Non-exclusive
\n Main Store, listing & review
\n——————————————————————————–
\n4 Reference Source Research, Software Store, Permanent Non-exclusive
\n – Main listing & review
\n——————————————————————————–<\/p>\n
Net channels Placement
\n——————————————————————————–
\n5 Computing Main Shortcut Permanent Non-exclusive
\n——————————————————————————–
\n6 Computing Main Listing & Review Pointer Permanent Non-exclusive
\n——————————————————————————–<\/p>\n
Keywords
\n ——–<\/p>\n
The Affiliated MP Site will be accessible from the AOL Network through the
\n use of the keyword “Outpost”, “Cyberian” and “Cyberian Outpost” (or such
\n other keyword as AOL may assign to MP in the case of a name change;
\n provided, however, that such keyword (i) shall at all times be subject to
\n availability and (ii) shall be a “non-generic” trademark of MP).<\/p>\n
14<\/p>\n
Confidential<\/p>\n
EXHIBIT B<\/p>\n
Definitions
\n ———–<\/p>\n
The following definitions will apply to this Agreement:<\/p>\n
Additional MP Channel. Any other distribution channel (e.g., an interactive
\n———————
\nService other than AOL) through which MP makes available an offering comparable
\nin nature to the Affiliated MP Site.<\/p>\n
Advertising Revenues. Aggregate amounts collected plus the fair market value of
\n——————–
\nany other compensation received (such as barter advertising) by MP, or its
\nagents, arising from the license or sale of advertisements, promotions, links or
\nsponsorships (“Advertisements”) that appear within any pages of the Affiliated
\nMP Site or on any screens or forms preceding, framing or otherwise directly
\nassociated with the Affiliated MP Site, less applicable Advertising Sales
\nCommissions and (b) any co-op marketing fees, or any similar fees collected by
\nMP from vendors for (i) “shelf space” in any MP Interactive Site linked to from
\nthe AOL Network or (ii) direct marketing efforts directed at any AOL Member or
\nAOL User.<\/p>\n
Advertising Sales Commission. (i) Actual amounts paid as commission to third
\n—————————-
\nparty agencies in connection with the sale of the Advertisement or (ii) 15%, 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 specific area to be promoted and distributed by AOL
\n——————
\nhereunder through which MP can market and complete transactions regarding the MP
\nProducts.<\/p>\n
AOL Interactive Site. Any Interactive Site which is managed, maintained, owned
\n——————–
\nor controlled by AOL or its agents.<\/p>\n
AOL Look and Feel. The elements of graphics, design, organization,
\n—————–
\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
\n———-
\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
\n———–
\nservice owned, operated, distributed or authorized to be distributed by or
\nthrough AOL or its affiliates worldwide (and including those properties excluded
\nfrom the definitions of the AOL Service or AOL.com).<\/p>\n
AOL Purchaser. Any person or entity who enters the Affiliated MP Site, and
\n————-
\npurchases an MP Product or any other products or services sold therein.<\/p>\n
AOL Service. The U.S. version of the America Online(R) brand service,
\n———–
\nspecifically excluding (a) AOL.com or any other AOL Interactive Site, (b) the
\nInternational versions of the AOL Service (e.g., AOL Japan), (c) “Driveway,”
\n“NetFind,” “AOL Instant Messenger” or any similar product or service offered by
\nor through the U.S. version of the America Online(R) brand service, (d) “Digital
\nCities,” “WorldPlay,” “Entertainment Asylum,” the “HUB,” or any similar
\n“sub-service” offered by or through the U.S. version of the America Online(R)
\nbrand service, (e) any yellow pages, white pages, classifieds or other search,
\ndirectory, or review services or Content offered by or through the U.S. version
\nof the America Online(R) brand service, (f) any AOL product or service delivered
\nprimarily through a broadband distribution platform (including a television
\nplatform), (g) any co-branded or private table branded version of the AOL
\nservice and (h) any programming or content area offered by or through the U.S.
\nversion of the America Online(R) brand service over which AOL does not exercise
\ncomplete or substantially complete operational control (e.g., third-party
\nContent areas, any Interactive Site containing “members.aol.com” as part of its
\nURL).<\/p>\n
15<\/p>\n
Confidential<\/p>\n
AOL User. Any user of the AOL Service or AOL.com.
\n——–<\/p>\n
AOL.com. AOL’s primary Internet-based Interactive Site marketed under the
\n——-
\n“AOL.COM” brand, specifically excluding (a) the AOL Service, (b) any
\ninternational versions of AOL.com. (c) “Driveway,” “NetFind,” “AOL Instant
\nMessager” or any similar product or service offered by or through such site or
\nany other AOL Interactive Site, (d) “Digital Cities,” “WorldPlay,”
\n“Entertainment Asylum,” “the Hub,”or any similar “sub-service” offered by or
\nthrough such site or any other AOL Interactive Site, (e) any yellow pages, white
\npages, classifieds or other search or directory services offered by or through
\nsuch site or any other AOL Interactive Site and (f) any programming or content
\narea offered by or through such site or any other AOL Interactive Site over
\nwhich AOL does not exercise complete or substantially complete operational
\ncontrol (e.g., third-party Content areas, any Interactive Site containing
\n“members.aol.com” as part of its URL).<\/p>\n
Change of Control. (a) The consummation of a reorganization, merger or
\n—————-
\nconsolidation or sale or other disposition of substantially all of the assets of
\na party; or (b) the acquisition by an individual, entity or group (within the
\nmeaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
\nas amended) of beneficial ownership (within the meaning of Rule 13-d promulgated
\nunder such Act) of more than 50% of either (i) the then outstanding shares of
\ncommon stock of such party; or (ii) the combined voting power of the then
\noutstanding voting securities of such party entitled to vote generally in the
\nelection of directors. Notwithstanding the foregoing, the initial public
\noffering of securities of MP pursuant to an effective registration statement
\nunder the Securities Act of 1933, as amended, shall not be considered a Change
\nof Control.<\/p>\n
Confidential Information. Any information relating to or disclosed in the
\n————————
\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, source
\ncodes, product designs, sales, cost and other unpublished financial information,
\nproduct and business plans, projections, and marketing data. “Confidential
\nInformation” will not include information (a) already lawfully known to or
\nindependently developed by the receiving Party, (b) disclosed in published
\nmaterials, (c) generally known to the public, or (d) lawfully obtained from any
\nthird party.<\/p>\n
Content. Information, materials, features, products, advertisements,
\n——-
\npromotions, links, pointers and software, including any modifications, upgrades,
\nupdates, enhancements and related documentation.<\/p>\n
Exclusive Screens. The specific promotional areas or portions thereof, of the
\n—————–
\nAOL Service and AOL.com wherein which AOL will promote the Exclusive Products as
\ndescribed in Exhibit A.<\/p>\n
Impression. User exposure to the page containing the applicable Promotion, as
\n———-
\nsuch exposure may be reasonably determined and measured by AOL in accordance
\nwith its standard methodologies and protocols.<\/p>\n
Interactive Service. Any entity that offers online or Internet connectivity (or
\n——————-
\nany successor form of connectivity), aggregates and\/or distributes a broad
\nselection of third-party interactive Content, or provides interactive
\nnavigational services (including, without limitation, any online service
\nproviders, Internet service providers, WebTV, @Home or other broadband
\nproviders, search or directly providers, “push” product providers such as the
\nPointcast Netcash Network or providers of interactive navigational environments
\nsuch as Microsoft’s proposed “Active Desktop”).<\/p>\n
Interactive Site. Any interactive site or area, including, by way of example
\n—————-
\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
Licensed Content. All Content offered through the Affiliated MP Site pursuant
\n—————-
\nto this Agreement or otherwise provided to AOL by MP for related purposes (e.g.,
\nPromotions, AOL “slideshows”, etc.).<\/p>\n
16<\/p>\n
including in each case, any modifications, upgrades, updates, enhancements, and
\nrelated documentation.<\/p>\n
MP Interactive Site. Any Interactive Site (other than the Affiliated MP Site)
\n——————-
\nwhich is managed, maintained, owned and controlled by MP or its agents.<\/p>\n
MP Product. Any product, good or service which MP (or others acting on its
\n———-
\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-1
\nto the Agreement, (ii) any other electronic means related to an AOL User’s visit
\nto the Affiliated MP Site (e.g., e-mail offers following user registration), or
\n(iii) an “offline” means (e.g., toll-free number) for receiving orders related
\nto specific offers within the Affiliated MP Site requiring purchasers to
\nreference a specific promotional identifier or tracking code.<\/p>\n
Target Revenues. The sum of (a) MP Revenues and (b) [XXX] of the gross revenues
\n—————
\ngenerated by user of any MP Interactive Site with and AOL.com address of URL,
\nexcluding any revenues generated by individuals listed on Exhibit D-2 attached
\nhereto.<\/p>\n
Transaction Revenues. Aggregate amounts paid by AOL Purchasers in connection
\n——————–
\nwith the sale, licensing, distribution or provision of any MP Products,
\nincluding, in each case, service charges, and excluding, in each case, amounts
\ncollected for sales or use taxes or duties.<\/p>\n
17<\/p>\n
Confidential<\/p>\n
EXHIBIT C<\/p>\n
MP Cross-Promotion
\n ——————<\/p>\n
Online
\n——<\/p>\n
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
\nXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
\nin an MP Interactive Site, MP shall also provide a Promotional Presence to AOL
\nin 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 a
\nprominent “Try AOL” feature where users can obtain promotional information about
\nAOL products and services and, at AOL’s option, download or order AOL’s then-
\ncurrent version of client software for the AOL Service or software for any other
\nAOL products or services (e.g., AOL’s Instant Messenger service) on terms and
\nconditions (including, without limitation, scope, purpose, amount, prominence or
\nregularity) that are no less favorable than the terms and conditions provided to
\nsuch other Interactive Service. To the extent that MP shall undertake any of the
\nforegoing promotions with respect to AOL, MP shall also promote AOL as its
\npreferred Interactive Service.<\/p>\n
Offline
\n——-<\/p>\n
MP shall promote AOL in MP’s television, radio and print advertisements and in
\nany publications, programs, features or other forms of media over which MP
\nexercises at least partial editorial control, including, without limitation, the
\nfollowing:<\/p>\n
. Specific references or mentions (verbally where possible) of the Affiliated
\n MP Site’s availability through American Online(R) immediately following any
\n reference to any MP Interactive Site; and
\n. Prominent promotion of the AOL “keyword” for the Affiliated MP Site whenever
\n it mentions the “URL(s)” for the MP Interactive Site.<\/p>\n
Member Acquisition Programs
\n—————————<\/p>\n
The Parties shall negotiate, in good faith, various AOL member acquisition
\nprograms, including, without limitation, the bundling of AOL software with
\nproducts (i.e.: computer hardware, peripheral and packaged software) shipped by
\nMP to existing MP customers who are not members of AOL.\/2\/<\/p>\n
——————
\n\/1\/ 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 through
\nMicrosoft’s Active Desktop or any other “push” product (an “Operating System”),
\nsuch feature will link users directly to AOL software within the Operating
\nSystem or direct users without Internet access to any AOL application setup
\nprogram within the Operating System (all subject to any standard policies of the
\nOperating System).<\/p>\n
\/2\/ 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.<\/p>\n
18<\/p>\n
Confidential<\/p>\n
EXHIBIT D-1<\/p>\n
Description of MP Products and Other Content
\n ——————————————–<\/p>\n
The products sold on MP’s primary website at http:\/\/www.cyberianoutpost.com as
\nof the Effective Date hereof (e.g., CPU’s, laptops, notebook computers,
\nmonitors, mouses, disk drives, modems, keyboards, printers, computer manuals,
\ncomputer books and such comparable, additional computer hardware products
\ndirectly related to the use of a CPU, software, speakers, video game consoles,
\njoysticks, electronic organizers (or other Windows CE devices), calculators,
\npagers and a limited selection of other similar electronic products, and
\naccessories). To the extent that MP offers, or intends to offer, any products
\nwhich in any way conflicts with any of AOL’s existing exclusively arrangements
\n(including, without limitation, books). MP and AOL shall mutually agree upon (i)
\nwhether such products will be sold in the Affiliated MP Site, and (ii) the
\nmanner in which such products will be sold. To the extent that MP offers, or
\nintends to offer, any products which in any way conflicts with any of AOL’s
\nexisting exclusivity arrangements (including, without limitation, books), MP and
\nAOL shall mutually agree upon (i) whether such products will be sold in the
\nAffiliated MP Site, and (ii) the manner in which such products will be sold.<\/p>\n
19<\/p>\n
Confidential<\/p>\n
EXHIBIT D-2<\/p>\n
Pre-Existing AOL Member Customers of MP
\n —————————————<\/p>\n
Copy on file with AOL’s counsel<\/p>\n
20<\/p>\n
Confidential<\/p>\n
EXHIBIT E<\/p>\n
Operating Standards
\n ——————-<\/p>\n
1. General. MP shall comply with all terms set forth in this Exhibit E within
\n ——-
\nninety (90) days of the Effective Date and for the remainder of the Term. The
\nAffiliated MP Site (including the MP Products and other Content contained
\ntherein) will be in the top ten (10) in computer hardware and peripherals
\nindustry, as determined by each of the following methods: (a) based on a
\ncross-section of third-party reviewers who are recognized authorities in such
\nindustry and (b) with respect to all material quality averages or standards in
\nsuch industry, including each of the following: (i) pricing of MP Products, (ii)
\nscope and selection of MP Products, (iii) quality of MP Products, (iv) customer
\nservice and fulfillment associated with the marketing and sale of MP Products
\nand (v) ease of use. In addition, the Affiliated MP Site will, with respect to
\neach of the measures listed above, be competitive in all respects with that
\nwhich is offered by any MP Competitors.<\/p>\n
2. Hosting; Capacity. MP will provide all computer servers, routers, switches
\n —————–
\nand associated hardware in an amount reasonably necessary to meet anticipated
\ntraffic demands, adequate power supply (including generator back-up) and HVAC,
\nadequate insurance, adequate service contracts and all necessary equipment
\nracks, floor space, network cabling and power distribution to support the
\nAffiliated MP Site. In the event MP fails to satisfy this requirement AOL will
\nhave the right (in addition to any other remedies available to AOL hereunder) to
\nregulate the Promotions to the extent necessary to minimize user delays until
\nsuch time as MP corrects its infrastructure deficiencies.<\/p>\n
3. Speed; Accessibility. MP will ensure that the performance and availability
\n ——————-
\nof the Affiliated MP Site (a) is monitored on a continuous, 24\/7 basis and (b)
\nremains competitive in all material respects with the performance and
\navailability of other similar sites based on similar form technology. MP will
\nensure that (a) the functionality and feature within the Affiliated MP Site are
\noptimized for the client software then in use by AOL Users; and (b) the
\nAffiliated MP Site is designed and populated in a manner that minimized delays
\nwhen AOL Users attempt to access such site.<\/p>\n
4. User Interface. MP will maintain a graphical user interface within the
\n ————–
\nAffiliated MP Site that is competitive in all material respects with interfaces
\nof other similar sites based on similar technology. AOL reserves the right to
\nconduct focus group testing to assess compliance herewith.<\/p>\n
5. Service Level Response. MP agrees to provide the following service levels in
\n ———————-
\nresponse to problems with or improvements to the Affiliated MP Site:<\/p>\n
* For material functions of software that are or have become substantially
\n inoperable, MP will provide a bug fix or workaround within two (2) business
\n days after the first report of such error.<\/p>\n
* For functions of the software that are impaired or otherwise fail to operate
\n in accordance with agreed upon specifications, MP will provide a bug fix or
\n workaround within three (3) business days after the first report of such
\n error.<\/p>\n
* For errors disabling any certain non-essential functions, MP will provide a
\n bug fix or workaround within sixty (60) days after the first report of such
\n error.<\/p>\n
* For all other errors, MP will address these requests on a case-by-case basis
\n as soon as reasonably feasible.<\/p>\n
6. Monitoring. AOL Network Operations Center will work with a MP designated
\n ———-
\ntechnical contact in the event of any performance malfunction or other
\nemergency related to the Affiliated MP Site and will either assist or work in
\nparallel with MP’s contact using MP tools and procedures, as applicable. The
\nParties will develop a process to monitor performance and member behavior with
\nrespect to access, capacity, security and related issues both during normal
\noperations and during special promotions\/events.<\/p>\n
7. Telecommunications. The Parties agree to explore encryption methodology to
\n ——————
\nsecure data communications between the Parties’ data centers. The network
\nbetween the Parties will be configured such that no single component failure
\nwill significantly impact AOL Users. The network will be sized such that no
\nsingle line runs at more than 70% average utilization for a 5-minute peak in a
\ndaily period.<\/p>\n
8. Security Review. MP and AOL will work together to perform an initial
\n —————
\nsecurity review of, and to perform tests of, the MP system, network, and service
\nsecurity in order to evaluate the security risks and provide recommendations to
\nMP, including periodic follow-up reviews as reasonably required by MP or AOL. MP
\nwill fix any security risks or breaches of security as may be identified by
\nAOL’s Operations Security. Specific services to be performed on behalf of AOL’s
\nOperations Security team will be as determined by AOL in its sole discretion.<\/p>\n
9. Technical Performance. MP will perform the following technical obligations
\n ———————
\n(and any updates thereto provided by AOL from time to time):<\/p>\n
* MP will design the Affiliated MP Site to support the Windows version of the
\n Microsoft Internet Explorer 4.0 browser, and make commercially reasonable
\n efforts to support all other AOL browsers listed at:
\n “http:\/\/webmaster.info.aol.com\/BrowTable.html.”<\/p>\n
* MP will configure the server from which it serves the site to examine the HTTP
\n User-Agent field in order to identify the “AOL Member-Agents” listed at:
\n “http:\/\/webmaster.info.aol.com\/Brow2Text.html.”<\/p>\n
* MP will design its site to support HTTP 1.0 or later protocol as defined in
\n RFC 1945 (available at “http:\/\/ds.intemic.net\/rfc\/rfc1945.text”) and to adhere
\n to AOL’s parameters for refreshing cached information listed at
\n “http:\/\/webmaster.info.aol.com\/CacheText.html.”<\/p>\n
21<\/p>\n
Confidential<\/p>\n
EXHIBIT F<\/p>\n
Standard Online Commerce Terms & Conditions
\n ——————————————-<\/p>\n
1 AOL Network Distribution. MP will not authorize or permit any third party to
\n ————————
\ndistribute or promote the MP Products or any MP Interactive Site through the AOL
\nNetwork absent AOL’s prior written approval. The Promotions and any other
\npromotion or advertisement purchased from or provided by AOL will link only to
\nthe Affiliated MP Site.<\/p>\n
2 Provision of Other Content. In the event that AOL notifies MP that (i) as
\n —————————
\nreasonably determined by AOL, any Content within the Affiliated MP Site
\nviolates AOL’s then-standard Terms of Service (as set forth on the America
\nOnline(R) brand service), the terms of this Agreement or any other standard,
\nwritten AOL policy or (ii) AOL reasonably objects to the inclusion of any
\nContent within the Affiliated MP Site (other than any specific items of Content
\nwhich may be expressly identified in this Agreement), then MP will take
\ncommercially reasonable steps to block access by AOL Users to such Content using
\nMP’s then-available technology. In the event that MP cannot, through its
\ncommercially reasonable efforts, block access by AOL Users to the Content in
\nquestion, then MP will provide AOL written notice of such fact. AOL may then, at
\nits option, restrict access from the AOL Network to the Content in question
\nusing technology available to AOL. MP will cooperate with AOL’s reasonable
\nrequests to the 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 ——–
\nsweepstakes or similar promotion conducted or promoted through the Affiliated MP
\nSite (a “Contest”) complies with all applicable federal, state and local laws
\nand regulations<\/p>\n
4 Navigational Icons. Subject to the prior consent of MP, which consent will
\n ——————
\nnot be unreasonably withheld, AOL will be entitled to establish navigational
\nicons, links and pointers connecting the Affiliated MP Site (or portions
\nthereof) with either consent areas on or outside of the AOL Network.<\/p>\n
5 Disclaimers. Upon AOL’s request, MP agrees to include within the Affiliated
\n ———–
\nMP Site a product disclaimer (the specific term and substance to be mutually
\nagreed upon by the Parties) indicating that transactions are solely between MP
\nand 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 —————–
\ntitle and interest in and to 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 online areas contained within the AOL Network (“the AOL Look and Feel”),
\nsubject to MP’s ownership rights in any MP trademarks or copyrighted material
\nwithin the Affiliated MP Site.<\/p>\n
7 Management of the Affiliated MP Site. MP will manage, review, create, edit,
\n ————————————
\nupdate and otherwise manage all MP Products available on or through the
\nAffiliated MP Site, in a timely and professional manner and in accordance with
\nthe terms of this Agreement. MP will ensure that each Affiliated MP Site is
\ncurrent, accurate and well-organized at all times. MP warrants that the MP
\nProducts and other Content contained therein will not infringe on or violate any
\ncopyright, trademark, U.S. patent or any other third party right, including
\nwithout limitation, any music performance or other music-related rights; (ii)
\nwill not violate AOL’s then-applicable Terms of Service; and (iii) will not
\nviolate any applicable law or regulation, including those relating to contests,
\nsweepstakes or similar promotions. Additionally, MP represents and warrants that
\nit owns or has a valid license to all rights to any Licensed Content used in
\nAOL “slideshow” or other formats ??????? elements such as graphics, animation
\nand sound, free and clear of all encumbrances and without violating the rights
\nof any other person or entity. MP also warrants that a reasonable basis exists
\nfor all MP Product performance or comparison claims appearing through the
\nAffiliated MP Site. AOL will have no obligations with respect to the MP Products
\navailable on or through the Affiliated MP Site, including, but not limited to,
\nany duty to review or monitor any such MP Products.<\/p>\n
8 Duty to Inform. MP will promptly inform AOL of any information related to
\n ————–
\nthe MP Products of Affiliated MP Site which could reasonably lead to a claim,
\ndemand, or liability of or 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 —————-
\nservice to persons or entities purchasing MP Products through the AOL Network
\n(“Customers”), MP will bear full responsibility for all customer service,
\nincluding without limitation, order processing, billing, fulfillment, shipment,
\ncollection and other customer service associated with any MP Products offered,
\nsold or licensed through the Affiliated MP Site, and AOL will have no
\nobligations whatsoever with respect thereto. MP will receive all emails from
\nCustomers via a computer available to MP’s customer service staff and generally
\nrespond to such emails within one business day of receipt. MP will receive all
\norders electronically and generally process all orders within one business day
\nof receipt, provided MP Products ordered are not advance order items. MP will
\nensure that all orders of MP Products are received, processed, fulfilled and
\ndelivered on a timely and professional basis. MP will make all commercially
\nreasonable efforts to have its vendors and\/or manufacturers offer AOL Users who
\npurchase MP Products through the Affiliated MP Site a money back satisfaction
\nguarantee. To the extent that MP is unable to offer a money back satisfaction
\nguarantee, MP shall inform all AOL Users who purchase MP Products that such a
\nguarantee is not available. MP will bear all responsibility for compliance with
\nfederal, state and local laws in the event that MP Products are out of stock or
\nare no longer available at the time an order is received. MP will also comply
\nwith the requirements of any federal, state or local consumer protection or
\ndisclosure law. Payment for MP Products will be collected by MP directly from
\ncustomers. MP’s order fulfillment operations will be subject to AOL’s reasonable
\nreview.<\/p>\n
10 Frequency Work. In the event that MP requests AOL’s production assistance in
\n ————–
\nconnection with (i) ongoing programming and maintenance related to the
\nAffiliated MP Site, (ii) a redesign of or addition to the Affiliated MP Site
\ne.g., a change to an existing screen format or construction of a new custom
\nform, (iii) production to satisfy work performance by a third party provider or
\n(iv) any other type of production work, MP will work with AOL to<\/p>\n
22<\/p>\n
Confidential<\/p>\n
develop a detailed production plan for the requested production assistance (the
\n“Production Plan”). Following receipt of the final Production Plan, AOL will
\nnotify MP of (i) AOL’s availability to perform the requested production work,
\n(ii) the proposed fee or fee structure for the requested production and
\nmaintenance work and (iii) the estimated development schedule for such work. To
\nthe extent the Parties reach agreement regarding implementation of agreed-upon
\nProduction Plan, such agreement will be reflected in a separate work order
\nsigned by the Parties. To the extent MP elects to retain a third party provider
\nto perform any such production work, work produced by such third party provider
\nmust generally conform to AOL’s production Standards & Practices (a copy of
\nwhich will be supplied by AOL to MP upon request). The specific production
\nresources which AOL allocates to any production work to be performed on behalf
\nof MP will be as determined by AOL in its sole discretion.<\/p>\n
11. Overhead Accounts. To the extent AOL has granted MP any overhead accounts
\n —————–
\non the AOL Service, MP will be responsible for the actions taken under or
\nthrough its overhead accounts, which actions are subject to AOL’s applicable
\nTerms of Service and for any surcharges, including, without limitation, all
\npremium charges, transaction charges, and any applicable communication
\nsurcharges incurred by any overhead Account issued to MP, but MP will not be
\nliable for charges incurred by any overhead account relating to AOL’s standard
\nmonthly usage fees and standard hourly charges, which charges AOL will bear.
\nUpon the termination of this Agreement, all overhead accounts, related screen
\nnames and any associated usage credits or similar rights, will automatically
\nterminate. AOL will have no liability for loss of any data or content related
\nto the proper termination of any overhead account.<\/p>\n
12. AOL User Communications. To the extent MP sends any form of communications
\n ———————–
\nto AOL Users, MP will promote the Affiliated MP Site as the location at which to
\npurchase Products (as compared to any more general or other site or location).
\nIn addition, MP will not encourage AOL Users to take any action inconsistent
\nwith the scope and purpose of this Agreement, including without limitation, the
\nfollowing actions: (a) using Content other than the Licensed Content;
\n(b) bookmarking of Interactive Sites other than the Affiliated MP Site;
\n(c) using Interactive Sites other than those covered by the revenue-sharing
\nprovisions herein; (d) changing the default home page on the AOL browser; or
\n(e) using any Interactive Service other than AOL.<\/p>\n
13. Merchant Certification Program. MP will participate in any generally
\n ——————————
\napplicable “Certified Merchant” program operated by AOL or its authorized agents
\nor contractors. Such program may require merchant participants on an ongoing
\nbasis to meet certain reasonable standards relating to provision of electronic
\ncommerce through the AOL Network (including, as a minimum, use of 40-bit SSL
\nencryption and if requested by AOL, 128-bit encryption) and may also require the
\npayment of certain reasonable certification fees to the applicable entity
\noperating the program. Each Certified Merchant in good standing will be
\nentitled to place on its affiliated Interactive Site an AOL designed and
\napproved button promoting the merchants status as an AOL Certified Merchant.<\/p>\n
23<\/p>\n
Confidential<\/p>\n
EXHIBIT G
\n Standard Legal Terms and Conditions
\n ———————————–<\/p>\n
Promotional Materials\/Press Releases. Each Party will submit to the other
\n————————————
\nParty, for its prior written approval, which will not be unreasonably withheld
\nor delayed, any marketing, advertising, press releases, and all other
\npromotional materials related to the Affiliated MP Site and\/or referencing the
\nother Party and\/or its trade names, trademarks, and service marks (the
\n“Materials”); provided, however, that either Party’s use of screen shots of the
\nAffiliated MP Site for promotional purposes will not require the approval of the
\nother Party so long as American Online(R) is clearly identified as the source of
\nsuch screen shots. Each Party will solicit and reasonably consider the views of
\nall the other Party in designing and implementing such Materials. Once
\napproved, the Materials may be used by a Party and its affiliates for the
\npurpose of promoting the Affiliated MP Site and the content contained therein
\nand reused for such purpose until such approval is withdrawn with reasonable
\nprior notice. In the event such approval is withdrawn, existing inventories of
\nMaterials may be depleted. Notwithstanding the foregoing, either Party may
\nissue press releases and other disclosures as required by law or as reasonably
\nadvised by legal counsel without the consent of the other Party and in such
\nevent, prompt notice thereof will be provided to the other Party.<\/p>\n
2 License. MP hereby grants AOL a non-exclusive worldwide license to market,
\n ——-
\nlicense, distribute, reproduce, display, perform, transmit and promote the
\nLicensed Content (or any portion thereof) through such areas or features of the
\nAOL Network as AOL deems appropriate and in accordance with the terms of this
\nAgreement. MP acknowledges and agrees that the foregoing license permits AOL to
\ndistribute portions of the Licensed Content in synchronism or timed relation
\nwith visual materials prepared by MP or AOL (e.g., as part of an AOL
\n“slideshow”). In addition, AOL Users will have the right to access and use the
\nAffiliated MP Site.<\/p>\n
3 Trademark License. In designing and implementing the Materials and subject
\n —————–
\nto the other provisions contained herein, MP will be entitled to use the
\nfollowing trade names, trademarks, and service marks of AOL: the “America
\nOnline(R)” brand service, “AOL(TM) service\/software and AOL’s triangle logo: and
\nAOL and its affiliates will be entitled to use the trade names, trademarks, and
\nservice marks of MP (collectively, together with the AOL marks listed above, the
\n“Marks”); provided that each Party; (i) does not create a unitary composite mark
\ninvolving a Mark of the other Party without the prior written approval of such
\nother Party; and (ii) displays symbols and notices clearly and sufficiently
\nindicating the trademark status and ownership of the other Party’s Marks in
\naccordance with applicable trademark law and practice.<\/p>\n
4. Ownership of Trademarks. Each Party acknowledges the ownership of the
\n ———————–
\nother Party in the Marks of the other Party and agrees that all use of the other
\nParty’s Marks will inure to the benefit, and be on behalf, of the other Party.
\nEach Party acknowledges that its utilization of the other Party’s Marks will not
\ncreate in it, nor will it represent it has, any right, title, or interest in or
\nto such Marks other than the licenses expressly granted herein. Each Party
\nagrees not to do anything contesting or impairing the trademark rights of the
\nother Party.<\/p>\n
5. Quality Standards. Each Party agrees that the nature and quality of its
\n —————–
\nproducts and services supplied in connection with the other Party’s Marks will
\nconform to quality standards set by the other Party. Each Party agrees to
\nsupply the other Party, upon request, with a reasonable number of samples of any
\nMaterials publicly disseminated by such Party which utilize the other Party’s
\nMarks. Each Party will comply with all applicable laws, regulations, and
\ncustoms and obtain any required government approvals pertaining to use of the
\nother Party’s marks.<\/p>\n
6 Infringement Proceedings. Each Party agrees to promptly notify the other
\n ————————
\nParty of any unauthorized use of the other Party’s Marks of which it has actual
\nknowledge. Each Party will have the sole right and discretion to bring
\nproceedings alleging infringement of its Marks or unfair competition related
\nthereto; provided, however, that each Party agrees to provide the other Party
\nwith its reasonable cooperation and assistance with respect to any such
\ninfringement proceedings.<\/p>\n
7 Representations and Warranties. Each Party represents and warrants to the
\n ——————————
\nother Party that (i) such Party has the full corporate right, power and
\nauthority to enter into this Agreement and to perform the acts required of it
\nhereunder; (ii) the execution of this Agreement by such Party, and the
\nperformance by such Party of its obligations and duties hereunder, do not and
\nwill not violate any agreement to which such Party is a party or by which it is
\notherwise bound; (iii) when executed and delivered by such Party, this Agreement
\nwill constitute the legal, valid and binding obligation of such Party,
\nenforceable against such Party in accordance with its terms; and (iv) such Party
\nacknowledges that the other Party makes no representations, warranties or
\nagreements related to the subject matter hereof that are not expressly provided
\nfor in this Agreement. MP hereby represents and warrants that it possesses all
\nauthorizations, approvals, consents, licenses, permits, certificates or other
\nrights and permissions necessary to sell the MP Products.<\/p>\n
8 Confidentiality. Each Party acknowledges that Confidential Information may
\n —————
\nbe disclosed to the other Party during the course of this Agreement. Each Party
\nagrees that it will take reasonable steps, at least substantially equivalent to
\nthe steps it takes to protect its own proprietary information, during the term
\nof this Agreement, and for a period of three years following expiration or
\ntermination of this Agreement, to prevent the duplication or disclosure of
\nConfidential Information of the other Party, other than by or to its employees
\nor agents who must have access to such Confidential Information to perform such
\nParty’s obligations hereunder, who will each agree to comply with this section.
\nNotwithstanding the foregoing, either Party may issue a press release or other
\ndisclosure containing Confidential Information without the consent of the other
\nParty, to the extent such disclosure is required by law, rule, regulation or
\ngovernment or court order. In such event, the disclosing Party will provide at
\nleast five (5) business days prior written notice of such proposed disclosure to
\nthe other Party. Further, in the event such disclosure is required of either
\nParty under the laws, rules or regulations of the Securities and Exchange
\nCommission or any other applicable governing body, such Party will (i) redact
\nmutually agreed upon portions of this Agreement to the fullest extent permitted
\nunder applicable laws, rules and regulations and<\/p>\n
Confidential<\/p>\n
(ii) submit a request to such governing body that such portions and other
\nprovisions of this Agreement receive confidential treatment under the laws,
\nrules and regulations of the Securities and Exchange Commission or otherwise be
\nheld in the strictest confidence to the fullest extent permitted under the laws,
\nrules or regulations of any other applicable governing body. Notwithstanding
\nanything to the contrary contained herein, AOL agrees that MP may disclose to
\nprospective investors of MP the existence of this Agreement, a mutually
\nacceptable summary of the general terms of this Agreement, and information
\nconcerning the terms of the Warrants issuable to AOL pursuant to this Agreement
\nprovided, however, that MP shall take reasonable steps, at least substantially
\nequivalent to the steps it takes to protect its own proprietary information, to
\nprotect the information provided to any such prospective investors.<\/p>\n
9 Limitation of Liability; Disclaimer Indemnification.
\n —————————————————<\/p>\n
9.1 Liability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER
\n ———
\nPARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES
\n(EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES),
\nARISING FROM BREACH OF THE AGREEMENT, THE SALE OF MP PRODUCTS, THE FRAUDULENT
\nPURCHASE OF MP PRODUCTS, THE USE OR INABILITY TO USE THE AOL NETWORK, THE AOL
\nSERVICE, AOLCOM OR THE AFFILIATED MP SITE, OR ARISING FROM ANY OTHER PROVISION
\nOF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED
\nPROFITS OR LOST BUSINESS (“COLLECTIVELY, “DISCLAIMED DAMAGES”); PROVIDED THAT
\nEACH PARTY WILL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED
\nDAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT
\nTO SECTION 9.3. EXCEPT AS PROVIDED IN SECTION 9.3, NEITHER PARTY WILL BE LIABLE
\nTO THE OTHER PARTY FOR MORE THAN THE AMOUNTS PAYABLE HEREUNDER IN THE YEAR IN
\nWHICH ANY DISCLAIMED DAMAGES FOR WHICH INDEMNIFICATION IS SOUGHT ARISES OR
\nACCRUES; PROVIDED THAT EACH PARTY WILL REMAIN LIABLE FOR THE AGGREGATE AMOUNT OF
\nANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY PURSUANT TO SECTION 4.<\/p>\n
9.2 No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
\n ————————
\nNEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY
\nREPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AOL NETWORK,
\nTHE AOL SERVICE, AOLCOM OR THE AFFILIATED MP SITE, INCLUDING ANY IMPLIED
\nWARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED
\nWARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, WITHOUT
\nLIMITING THE GENERALITY OF THE FOREGOING, AOL SPECIFICALLY DISCLAIMS ANY
\nWARRANTY REGARDING THE PROFITABILITY OF THE AFFILIATED MP SITE.<\/p>\n
9.3 Indemnity. Either Party will defend, indemnify, save and hold harmless the
\n ———
\nother Party and the officers, directors, agents, affiliates, distributors,
\nfranchisees and employees of the other Party from any and all third party
\nclaims, demands, liabilities, costs or expenses, including reasonable attorneys
\nfees (“Liabilities”), resulting from the indemnifying Party’s material breach of
\nany duty, representation, or warranty of this Agreement, except where
\nLiabilities result from the gross negligence or knowing and willful misconduct
\nof the other Party.<\/p>\n
9.4 Claims. Each Party agrees to (i) promptly notify the other Party in
\n ——
\nwriting of any indemnifiable claim and give the other Party the opportunity to
\ndefend or negotiate a settlement of any such claim at such other Party’s
\nexpense, and (ii) cooperate fully with the other Party, at that other Party’s
\nexpense, in defending or settling such claim. AOL reserves the right, at its
\nown expense, to assume the exclusive defense and control of any matter otherwise
\nsubject to indemnification by MP hereunder, and in such event, MP will have no
\nfurther obligation to provide indemnification for such matter hereunder.<\/p>\n
9.5 Acknowledgment. AOL and MP each acknowledges that the provisions of this
\n ————–
\nAgreement were negotiated to reflect an informed, voluntary allocation between
\nthem of all risks (both known and unknown) associated with the transactions
\ncontemplated hereunder. The limitations and disclaimers related to warranties
\nand liability contained in this Agreement are intended to limit the
\ncircumstances and extent of liability. The provisions of this Section 9 will be
\nenforceable independent of any severable from any other enforceable or
\nunenforceable provision of this Agreement.<\/p>\n
10 Solicitation of AOL Users. During the term of this Agreement, and for the
\n ————————-
\ntwo-year period following the expiration or termination of this Agreement,
\nneither MP nor its agents will use the AOL Network to (i) solicit, or
\nparticipate in the solicitation of AOL Users when that solicitation is for the
\nbenefit of any entity (including MP) which could reasonably be construed to be
\nor become in competition with AOL or (ii) promote any services which could
\nreasonably be construed to be in competition with AOL including but not limited
\nto, services available through the internet. In addition, MP may not send AOL
\nUsers e-mail communications promoting MP’s Products through the AOL Network
\nwithout a “Prior Business Relationship.” For purposes of this Agreement, a
\n“Prior Business Relationship” will mean that the AOL User has either (i) engaged
\nin a transaction with MP through the AOL Network or (ii) voluntarily provided
\ninformation to MP through a contest, registration, or other communication, which
\nincluded notice to the AOL User that the information provided by the AOL User
\ncould result in an e-mail being sent to that AOL User by MP or its agents. A
\nPrior Business Relationship does not exist by virtue of an AOL User’s visit to
\nan Affiliated MP Site (absent the elements above). More generally, MP will be
\nsubject to any standard policies regarding e-mail distribution through the AOL
\nNetwork which AOL may implement.<\/p>\n
11 Collection of User Information. MP is prohibited from collecting AOL
\n ——————————
\nMember screennames or AOL User email addresses from public or private areas of
\nthe AOL Network, except as specifically provided below. MP will ensure that any
\nsurvey, questionnaire or other means of collecting AOL Member screennames or AOL
\nUser email addresses, names, addresses or other identifying information (“User
\ninformation”), including, without limitation, requests directed to specific AOL
\nMember screennames or AOL User email addresses and automated methods of
\ncollecting such information (an “Information Request”) complies with (i) all
\napplicable laws and regulations and (ii) any privacy policies which have been
\nissued by AOL ??????? during the Term (the “AOL Privacy Policies”). Each
\nInformation Request will clearly and conspicuously specify to the AOL Users at
\nissued the purpose for which User<\/p>\n
25<\/p>\n
Confidential<\/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 ———————–
\ncollected through an Information Request to the Specified Purpose. In no event
\nwill MP (i) provide User Information to any third party (except to the extent
\nspecifically (a) permitted under the AOL Privacy Policies or (b) authorized by
\nthe members in question), (ii) rent, sell or barter User Information, (iii)
\nidentify, promote or otherwise disclose such User Information in a manner that
\nidentifies AOL Users as end-users of the AOL Service, AOL.com or the AOL
\nNetwork or (iv) otherwise use any User Information in contravention of Section
\n11 above. Notwithstanding the foregoing, in the case of AOL Members who purchase
\nMP Products from MP, MP will be entitled to use User Information from such AOL
\nMembers as part of MP’s aggregate list of Customers; provided that MP’s use does
\nnot in any way identify, promote or otherwise disclose such User Information in
\na manner that identifies such AOL Members as end-users of the AOL Service.
\nAOL.com or the AOL Network. In addition, MP will not use any User Information
\nfor any purpose (including any Specified Purpose) not directly related to the
\nbusiness purpose of the Affiliated MP Site.<\/p>\n
13 Excuse. Neither Party will be liable for, or be considered in breach of or
\n ——
\ndefault under this Agreement on account of, any delay or failure to perform as
\nrequired by this Agreement as a result of any causes or conditions which are
\nbeyond such Party’s reasonable control and which such Party is unable to
\novercome by the exercise of reasonable diligence.<\/p>\n
14 Independent Contractors. The Parties to this Agreement are independent
\n ———————–
\ncontractors. Neither Party is an agent, representative or partner of the other
\nParty. Neither Party will have any right, power or authority to enter into any
\nagreement for or on behalf or, or incur any obligation or liability of, or to
\notherwise bind, the other Party. This Agreement will not be interpreted or
\nconstrued to create an association, agency, joint venture or partnership between
\nthe Parties or to impose any liability attributable to such a relationship upon
\neither Party.<\/p>\n
15 Notice. Any notice, approval, request, authorization, direction or other
\n ——
\ncommunication under this Agreement will be given in writing and will be deemed
\nto have been delivered and given for all purposes on the delivery date if
\ndelivered by electronic mail on the AOL Network or (i) on the delivery date if
\ndelivered personally to the Party to whom the same is directed: (ii) one
\nbusiness day after deposit with a commercial overnight carrier, with written
\nverification of receipt, or (iii) five business days after the mailing date,
\nwhether or not actually received, if sent by U.S. mail, return receipt
\nrequested, postage and charges prepaid, or any other means of rapid mail
\ndelivery for which a receipt is available, to the person(s) specified below at
\nthe address of the Party set forth in the first paragraph of this Agreement.<\/p>\n
16 No Waiver. The failure of either Party to insist upon or enforce strict
\n ———
\nperformance by the other Party or any provision of this Agreement or to exercise
\nany right under this Agreement will not be construed as a waiver or
\nrelinquishment to any extent of such Party’s right to assert or rely upon any
\nsuch provision or right in that or any other instance; rather, the same will be
\nand remain in full force and effect.<\/p>\n
17 Return of Information. Upon the expiration or termination of this
\n ———————
\nAgreement, each Party will, upon the written request of the other Party, return
\nor destroy (at the option of the Party receiving the request) all confidential
\ninformation, documents, manuals and other materials specified the other Party.<\/p>\n
18 Survival. Sections 9 through 12 of this Exhibit G, will survive the
\n ——–
\ncompletion, expiration, termination or cancellation of this Agreement.<\/p>\n
19 Entire Agreement. This Agreement sets forth the entire agreement and
\n —————-
\nsupersedes any and all prior agreements of the Parties with respect to the
\ntransactions set forth herein. Neither Party will be bound by, and each Party
\nspecifically objects to, any term, condition or other provision which is
\ndifferent from or in addition to the provisions of this Agreement (whether or
\nnot it would materially alter this Agreement) and which is proffered by the
\nother Party in any correspondence or other document, unless the Party to be
\nbound thereby specifically agrees to such provision in writing.<\/p>\n
20 Amendment. No change, amendment or modification of any provision of this
\n ———
\nAgreement will be valid unless set forth in a written instrument signed by the
\nParty subject to enforcement of such amendment by an executive of at least the
\nsame standing to the executive who signed the Agreement.<\/p>\n
21 Further Assurances. Each Party will take such action (including, but not
\n ——————
\nlimited to, the execution, acknowledgment and delivery of documents) as may
\nreasonably be requested by any other Party for the implementation or continuing
\nperformance of this Agreement.<\/p>\n
22 Assignment. MP will not assign this Agreement or any right, interest or
\n ———-
\nbenefit under this Agreement without the prior written consent of AOL. Subject
\nto the foregoing, this Agreement will be fully binding upon, inure to the
\nbenefit of and be enforceable by the Parties hereto and their respective
\nsuccessors and assigns.<\/p>\n
23 Construction; Severability. In the event that any provision of this
\n ————————–
\nAgreement conflicts with the law under which this Agreement is to be construed
\nor if any such provision is held invalid by a court with jurisdiction over the
\nParties to this Agreement, (i) such provision will be deemed to be restated to
\nreflect as nearly as possible the original intentions of the Parties in
\naccordance with applicable law, and (ii) the remaining terms, provisions,
\ncovenants and restrictions of this Agreement will remain in full force and
\naffect.<\/p>\n
24 Remedies. Except where otherwise specified, the rights and remedies granted
\n ——–
\nto a Party under this Agreement are cumulative and in addition to, and not in
\nlieu of, any other rights or remedies which the Party may possess at law or in
\nequity; provided that, in connection with any dispute hereunder, MP will not be
\nentitled to offset any amounts that it claims to be due and payable from AOL
\nagainst amounts otherwise payable by MP to AOL.<\/p>\n
25 Applicable Law, Jurisdiction. This Agreement will be interpreted, construed
\n —————————-
\nand enforced in all respects in accordance with the laws of the Commonwealth of
\nVirginia except for its conflicts of laws principles. Each Party irrevocably
\nconsents to the exclusive jurisdiction of the courts of the Commonwealth of
\nVirginia and the federal courts situated in the Commonwealth of Virginia, in
\nconnection with any action to enforce the provisions of this Agreement, to
\nrecover damages or other relief for breach or default under this Agreement, or
\notherwise arising under or by reason of this Agreement.<\/p>\n
26 Expert Controls. Both Parties will adhere to all applicable laws,
\n —————
\nregulations and rules relating to the expert<\/p>\n
26<\/p>\n
Confidential<\/p>\n
of technical data and will not export or re-export any technical data, any
\nproducts received from the other Party or the direct product of such technical
\ndata to any prescribed country listed in such applicable laws, regulations and
\nrules unless properly authorized.<\/p>\n
27 Headings. The captions and headings used in this Agreement are
\n ——–
\ninserted for convenience only and will not affect the meaning or interpretation
\nof this Agreement.<\/p>\n
28 Counterparts. This Agreement may be executed in counterparts, each
\n ————
\nof which will be deemed an original and all of which together will constitute
\none and the same document.<\/p>\n
27<\/p>\n
Confidential<\/p>\n
EXHIBIT H<\/p>\n
MP COMPETITORS<\/p>\n
[XXXXXX]<\/p>\n
[XXXXXX]<\/p>\n
[XXXXXX]<\/p>\n
[XXXXXX]<\/p>\n
[XXXXXX]<\/p>\n
[XXXXXX]<\/p>\n
[XXXXXX]<\/p>\n
[XXXXXX]<\/p>\n
[XXXXXX]<\/p>\n
[XXXXXX]<\/p>\n
[XXXXXX]<\/p>\n
[XXXXXX]<\/p>\n
[XXXXXX]<\/p>\n
[XXXXXX]<\/p>\n
[XXXXXX]<\/p>\n
[XXXXXX]<\/p>\n
[XXXXXX]<\/p>\n
[XXXXXX]<\/p>\n
[XXXXXX]<\/p>\n
[XXXXXX]<\/p>\n
Cyberian retains the right to add to this list from time to time as new
\ncompetitors enter the market subject to the prior approval of AOL, which
\napproval shall not be unreasonably withheld.<\/p>\n
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