\n——————————————————————————————————————————–
\n——————————————————————————————————————————–
\n——————————————————————————————————————————–
\nB Member Directory Banners AOL Service 120X60 10\/14\/99 10\/13\/02 [***] [***] [***] [***]
\n——————————————————————————————————————————–
\nB Download a File Banners AOL Service 234X60 10\/14\/99 10\/13\/02 [***] [***] [***] [***]
\n——————————————————————————————————————————–
\nB Investment Snapshot and Stock AOL Service 234X60 10\/14\/99 10\/13\/02 [***] [***] [***] [***]
\n Quotes Banner
\n——————————————————————————————————————————–
\nB AOL.com HomePage AOL.com 100X70 10\/14\/99 10\/13\/02 [***] [***] [***] [***]
\n——————————————————————————————————————————–
\nB AIM AOL.com\/ 120X60 10\/14\/99 10\/13\/02 [***] [***] [***] [***]
\n Web
\n——————————————————————————————————————————–
\nB DCI Home Page DCI 234X60 10\/14\/99 10\/13\/02 [***] [***] [***] [***]
\n——————————————————————————————————————————–
\nB NSCP Home Page Banners Netscape 233X30 10\/14\/99 10\/13\/02 [***] [***] [***] [***]
\n——————————————————————————————————————————–
\nB NSCP ROS Banners Netscape 468X60 10\/14\/99 10\/13\/02 [***] [***] [***] [***]
\n——————————————————————————————————————————–
\nB NSCP ROS Text Links Netscape Text 10\/14\/99 10\/13\/02 [***] [***] [***] [***]
\n——————————————————————————————————————————–
\nB Weather Banners Netscape 468X60 10\/14\/99 10\/13\/02 [***] [***] [***] [***]
\n——————————————————————————————————————————–
\nB Other Selected Mindset Compuserve 468X60 10\/14\/99 10\/13\/02 [***] [***] [***] [***]
\n Packages: Banner Rotation
\n——————————————————————————————————————————–
\nB CompuServe ROS Compuserve 468X60 10\/14\/99 10\/13\/02 [***] [***] [***] [***]
\n——————————————————————————————————————————–
\nB CompuServe.com Broadreach Compuserve 468X60 10\/14\/99 10\/13\/02 [***] [***] [***] [***]
\n Inventory
\n——————————————————————————————————————————–
\n [***] [***] [***] [***]
\n——————————————————————————————————————————–
\n——————————————————————————————————————————–
\n [***] [***] [***] [***]
\n TOTALS
\n——————————————————————————————————————————–<\/p>\n<\/c><\/c><\/c><\/c><\/c><\/c><\/c><\/c><\/c><\/table>\n
EXECUTION COPY
\nCONFIDENTIAL<\/p>\n
17<\/p>\n
A. LEGEND
\n ——<\/p>\n
* “Premier Dominant” positioning shall be not less than 100% greater than
\n the tenancy of any MP Competitor on the same screen.<\/p>\n
** with respect to each search term AOL shall not (i) during the first year
\n of the Agreement, provide any MP Competitor with a number of Impressions for
\n such search term equal to more than [***] of Impressions deliverable to MP
\n during such year, (ii) during the second year of the Agreement, provided
\n that MP is entitled for such search term a number of Impressions at least
\n [***] greater than the number deliverable in year one, provide any MP
\n Competitor with a number of Impressions for such search term equal to more
\n than [***] of Impressions deliverable to MP during such year, and (iii)
\n during the third year of the Agreement, provided that MP is entitled for
\n such search term a number of Impressions at least [***] greater than the
\n number deliverable in year one, provide any MP Competitor with a number of
\n Impressions for such search term equal to more than [***] of Impressions
\n deliverable to MP during such year.<\/p>\n
Classes of Inventory:
\n T = Targeted
\n B = Broad reach<\/p>\n
B. POSTAGE AND SHIPPING CENTERS. The Parties acknowledge that as of the
\n ——————————-
\n Effective Date, no Postage Centers (except AOL.com) or Shipping Centers
\n (except on Netcenter) have been constructed and that no timetable currently
\n exists for such construction. Although the Parties shall discuss in good
\n faith the construction of these areas, there can be no assurance that these
\n centers will be constructed within any particular time period.<\/p>\n
EXECUTION COPY
\nCONFIDENTIAL<\/p>\n
18<\/p>\n
EXHIBIT B<\/p>\n
Definitions
\n ———–<\/p>\n
The following definitions will apply to this Agreement:<\/p>\n
Additional MP Channel. An MP Interactive Site, other than a co-branded version
\n———————
\nor the Affiliated MP Sites, through which MP makes available products and
\nservices substantially similar to those offered on the Affiliated MP Sites.<\/p>\n
Affiliate. With respect to any specified party, any other corporation,
\n———
\npartnership or similar entity that, directly or indirectly, through one or more
\nintermediaries, controls, is controlled by or is under common control with such
\nspecified party. Control of any corporation, partnership or similar entity means
\nthe possession, directly or indirectly, of fifty percent (50%) or more of the
\nvoting securities or other voting interests of such corporation, partnership or
\nentity.<\/p>\n
Affiliated MP Sites. The MP\/AOL Service Site, the MP\/AOL.com Site, the MP\/CIS
\n——————-
\nSite, the MP\/DCI Site and the MP\/Netcenter Site, collectively.<\/p>\n
Affiliated Realtor.com Interactive Site. The version of the Realtor.com
\n—————————————
\nInteractive Site existing as of the date hereof available through the AOL
\nService and AOL.com and containing specially designed content for AOL Users.<\/p>\n
AOL Competitor. Any of the following, or their Affiliates: (i) any entity
\n————–
\noffering online or Internet connectivity services (e.g., an Internet service
\nprovider); (ii) any entity offering communications software capable of serving
\nas the principal means through which a user creates, sends and receives
\nelectronic mail or real time online messages; or (iii) any entity listed on
\nExhibit B-1 attached hereto.<\/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 Service, including any sub-accounts
\n———-
\nusing the AOL Service under an authorized master account.<\/p>\n
AOL Network. (i) The AOL Service, (ii) AOL.com, (iii) CompuServe, (iv) Digital
\n———–
\nCity, (v) Netcenter, and (vi) any other product or service owned, operated,
\ndistributed or authorized to be distributed by or through AOL or its Affiliates
\nworldwide (and including those properties excluded from the definitions of the
\nAOL Service or AOL.com). It is understood and agreed that, except as expressly
\nset forth herein, the rights of MP relate only to the AOL Service and AOL.com
\nand not generally to the AOL Network.<\/p>\n
AOL Plus. The standard broadband U.S. version of the AOL Plus(TM) brand service,
\n——–
\nspecifically excluding (a) AOL.com, Netcenter or any other AOL Interactive Site,
\n(b) the international versions of an America Online or AOL Plus\/TM\/ service
\n(e.g., AOL Japan), (c) the CompuServe(R) brand service and any other CompuServe
\nproducts or services (d) “Driveway,” “ICQ\/TM\/,” “AOL NetFind\/TM\/,” “AOL Instant
\nMessenger\/TM\/,” “Digital City,” “NetMail\/TM\/,” “Electra”, “Thrive”, “Real Fans”,
\n“Love@AOL”, “Entertainment Asylum,” “AOL Hometown,” “My News” or any similar
\nindependent product, service or property which may be offered by, <\/p>\n
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\nCONFIDENTIAL<\/p>\n
19<\/p>\n
through or with the U.S. version of the America Online(R) brand service, (e) any
\nprogramming or Content area offered by or through the U.S. version of the AOL
\nPlus\/TM\/ brand service over which AOL does not exercise complete operational
\ncontrol (including, without limitation, Content areas controlled by other
\nparties and member-created Content areas), (f) any yellow pages, white pages,
\nclassifieds or other search, directory or review services or Content offered by
\nor through the U.S. version of the AOL Plus\/TM\/ brand service, (g) any property,
\nfeature, product or service which AOL or its Affiliates may acquire subsequent
\nto the Effective Date (unless such new property, feature, product or service is
\n(i) a mere enhancement of the broadband U.S. version of the AOL Plus\/TM\/ brand
\nservice, is integrated into such service and is not a stand-alone property,
\nfeature, product or service, or (ii) a successor to the broadband U.S. version
\nof the AOL Plus\/TM\/ brand service) and (h) any other version of an AOL Plus\/TM\/
\nservice which is materially different from the standard broadband U.S. version
\nof the AOL Plus\/TM\/ brand service, by virtue of its branding, distribution,
\nfunctionality, Content or services, including, without limitation, any co-
\nbranded version of the service or any version distributed through any narrow-
\nband distribution platform or through any platform or device other than a
\ndesktop personal computer.<\/p>\n
AOL Purchaser. Any person or entity who (i) enters the Affiliated MP Sites from
\n————-
\nthe AOL Network including, without limitation, from any third party area therein
\n(to the extent entry from such third party area is traceable through both
\nParties’ commercially reasonable efforts), and (ii) selects a pricing plan and
\nregisters with MP using a unique credit card number or automated clearing house
\nnumber, electronic mail address and name not previously received by MP.<\/p>\n
AOL Service. The standard narrow-band U.S. version of the America Online(R)
\n———–
\nbrand service, specifically excluding (a) AOL.com, Netcenter or any other AOL
\nInteractive Site, (b) the international versions of an America Online service
\n(e.g., AOL Japan), (c) the CompuServe(R) brand service and any other CompuServe
\nproducts or services (d) “Driveway,” “ICQ\/TM\/,” “AOL NetFind\/TM\/,” “AOL Instant
\nMessenger\/TM\/,” “Digital City,” “NetMail(TM),” “Electra”, “Thrive”, “Real Fans”,
\n“Love@AOL”, “Entertainment Asylum,” “AOL Hometown,” “My News” or any similar
\nindependent product, service or property which may be offered by, through or
\nwith the U.S. version of the America Online(R) brand service, (e) any
\nprogramming or Content area offered by or through the U.S. version of the
\nAmerica Online(R) brand service over which AOL does not exercise complete
\noperational control (including, without limitation, Content areas controlled by
\nother parties and member-created Content areas), (f) any yellow pages, white
\npages, classifieds or other search, directory or review services or Content
\noffered by or through the U.S. version of the America Online(R) brand service,
\n(g) any property, feature, product or service which AOL or its Affiliates may
\nacquire subsequent to the Effective Date (unless such new property, feature,
\nproduct or service is (i) a mere enhancement of the narrow-band U.S. version of
\nthe America Online brand service, is integrated into such service and is not a
\nstand-alone property, feature, product or service, or (ii) a successor to the
\nnarrow-band U.S. version of the America Online brand service) and (h) any other
\nversion of an America Online service which is materially different from the
\nstandard narrow-band U.S. version of the America Online brand service, by virtue
\nof its branding, distribution, functionality, Content or services, including,
\nwithout limitation, any co-branded version of the service or any version
\ndistributed through any broadband distribution platform or through any platform
\nor device other than a desktop personal computer.<\/p>\n
AOL User. Any user of the AOL Service, AOL.com, CompuServe, Digital City,
\n——–
\nNetcenter, or the AOL Network.<\/p>\n
AOL.com. AOL’s primary Internet-based Interactive Site marketed under the
\n——-
\n“AOL.COM\/TM\/” brand, specifically excluding (a) the AOL Service, (b) Netcenter,
\n(c) any international versions of such site, (d) “ICQ,” “AOL NetFind\/TM\/,”
\n“AOL Instant Messenger\/TM\/,” “NetMail\/TM\/,” “AOL Hometown,” “My News” or any
\nsimilar independent product or service offered by or through such site or any
\nother AOL Interactive Site, (e) any programming or Content area offered by or
\nthrough such site over which AOL does not exercise complete operational control
\n(including, without limitation, Content areas controlled by other parties and
\nmember-created Content areas), (f) any programming or Content area offered by or
\nthrough such site<\/p>\n
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\nCONFIDENTIAL<\/p>\n
20<\/p>\n
which was operated, maintained or controlled by the former AOL Studios division
\n(e.g., Electra), (g) any yellow pages, white pages, classifieds or other search,
\ndirectory or review services or Content offered by or through such site or any
\nother AOL Interactive Site, (h) any property, feature, product or service which
\nAOL or its Affiliates may acquire subsequent to the Effective Date (unless such
\nnew property, feature, product or service is (i) a mere enhancement of the
\nprimary Internet-based Interactive Site marketed under the “AOL.COM\/TM\/” brand,
\nis integrated into such Interactive Site and is not a stand-alone property,
\nfeature, product or service, or (ii) a successor to the primary Internet-based
\nInteractive Site marketed under the “AOL.COM\/TM\/” brand) and (i) any other
\nversion of an America Online Interactive Site which is materially different from
\nAOL’s primary Internet-based Interactive Site marketed under the “AOL.COM\/TM\/”
\nbrand, by virtue of its branding, distribution, functionality, Content or
\nservices, including, without limitation, any co-branded versions or any version
\ndistributed through any broadband distribution platform or through any platform
\nor device other than a desktop personal computer.<\/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 any individual, entity or group (within the
\nmeaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1933,
\nas 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
Competitor Software. The software or product of any MP Competitor necessary for
\n——————-
\nthe operation of the electronic postage product of such MP Competitor, if such
\nsoftware or product enables end-users to purchase USPS services or products over
\nthe Internet through such MP Competitor’s network.<\/p>\n
CompuServe. The standard, narrow-band U.S. version of the CompuServe brand
\n———–
\nservice, specifically excluding (a) any international versions of such service,
\n(b) any web-based service including “compuserve.com”, “cserve.com” and “cs.com”,
\nor any similar product or service offered by or through the U.S. version of the
\nCompuServe brand service, (c) Content areas owned, maintained or controlled by
\nCompuServe Affiliates or any similar “sub-service,” (d) any programming or
\nContent area offered by or through the U.S. version of the CompuServe brand
\nservice over which CompuServe does not exercise complete or substantially
\ncomplete operational control (e.g., third-party Content areas), (e) any yellow
\npages, white pages, classifieds or other search, directory or review services or
\nContent and (f) any co-branded or private label branded version of the U.S.
\nversion of the CompuServe brand service, (g) any version of the U.S. version of
\nthe CompuServe brand service which offers Content, distribution, services and\/or
\nfunctionality materially different from the Content, distribution, services
\nand\/or functionality associated with the standard, narrow-band U.S. version of
\nthe CompuServe brand service, including, without limitation, any version of such
\nservice distributed through any platform or device other than a desktop personal
\ncomputer and (h) any property, feature, product or service which CompuServe or
\nits Affiliates may acquire subsequent to the Effective Date (unless such new
\nproperty, feature, product or service is (i) a mere enhancement of the narrow-
\nband U.S. version of the CompuServe brand service, is integrated into such
\nservice and is not a stand-alone property, feature, product or service, or (ii)
\na successor to the narrow-band U.S. version of the CompuServe brand service).<\/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 the
\nreceiving Party or independently developed by the receiving Party, (b) disclosed
\nin published materials except as disclosed by the receiving Party in breach of
\nthis Agreement, (c) generally known to the public except as disclosed by the
\nreceiving Party in breach of this Agreement, or (d) lawfully obtained from any
\nthird party without restriction.<\/p>\n
EXECUTION COPY
\nCONFIDENTIAL<\/p>\n
21<\/p>\n
Content. Text, images, video, audio (including, without limitation, music used
\n——-
\nin synchronism or timed relation with visual displays) and other data,
\nadvertisements, promotions, URLs, links and pointers.<\/p>\n
Digital City. The standard, narrow-band U.S. version of Digital City’s local
\n————-
\ncontent offerings marketed under the Digital City(R) brand name, specifically
\nexcluding (a) the AOL Service, AOL.com, Netcenter, or any other AOL Interactive
\nSite, (b) any international versions of such local content offerings, (c) the
\nCompuServe(R) brand service and any other CompuServe products or services (d)
\n“Driveway,” “ICQ\/TM\/,” “AOL NetFind\/TM\/,” “AOL Instant Messenger\/TM\/,” “Digital
\nCity,” “NetMail\/TM\/,” “Electra”, “Thrive”, “Real Fans”, “Love@AOL”,
\n“Entertainment Asylum,” “AOL Hometown,” “My News” or any similar independent
\nproduct, service or property which may be offered by, through or with the
\nstandard narrow band version of Digital City’s local content offerings, (e) any
\nprogramming or Content area offered by or through such local content offerings
\nover which AOL does not exercise complete operational control (including,
\nwithout limitation, Content areas controlled by other parties and member-created
\nContent areas), (f) any yellow pages, white pages, classifieds or other search,
\ndirectory or review services or Content offered by or through such local content
\nofferings, (g) any property, feature, product or service which AOL or its
\nAffiliates may acquire subsequent to the Effective Date (unless such new
\nproperty, feature, product or service is (i) a mere enhancement of the standard,
\nnarrow-band U.S. version of Digital City’s local content offerings marketed
\nunder the Digital City(R) brand name, is integrated into such content offerings
\nand is not a stand-alone property, feature, product or service, or (ii) a
\nsuccessor to the standard, narrow-band U.S. version of Digital City’s local
\ncontent offerings marketed under the Digital City(R) brand name), (h) any other
\nversion of a Digital City local content offering which is materially different
\nfrom the narrow-band U.S. version of Digital City’s local content offerings
\nmarketed under the Digital City(R) brand name, by virtue of its branding,
\ndistribution, functionality, Content or services, including, without limitation,
\nany co-branded version of the offerings or any version distributed through any
\nbroadband distribution platform or through any platform or device other than a
\ndesktop personal computer, and (i) Digital City- branded offerings in any local
\narea where such offerings are not owned or operationally controlled by America
\nOnline, Inc. or DCI (e.g., Chicago, Orlando, South Florida, and Hampton Roads).<\/p>\n
Impression. An Impression is generated when a user’s browser requests and
\n———-
\nreceives a file via the WWW or the AOL Network, where such file contains a
\nPromotion. Impressions shall be measured by AOL in accordance with its standard
\nmethodologies and protocols that are applied equally to all entities.<\/p>\n
Initial MP Competitor. Any of Pitney-Bowes, E-Stamp Corporation or Neopost, and
\n———————
\ntheir Affiliates.<\/p>\n
Initial MP Competitor Additional Product. A product or service of an Initial MP
\n—————————————-
\nCompetitor other than Competitor Software.<\/p>\n
Interactive Service. An entity offering one or more of the following: (i)
\n——————-
\nonline or Internet connectivity services (e.g., an Internet service provider);
\n(ii) an interactive site or service featuring a broad selection of aggregated
\nthird party interactive content (or navigation thereto) (e.g., an online service
\nor search and directory service) and\/or marketing a broad selection of products
\nand\/or services across numerous interactive commerce categories (e.g., an online
\nmall or other leading online commerce site); and (iii) communications software
\ncapable of serving as the principal means through which a user creates, sends
\nand receives electronic mail or real time online messages.<\/p>\n
Interactive Site. Any interactive site or area, including, by way of example and
\n—————-
\nwithout limitation, (i) an MP site on the World Wide Web portion of the Internet
\nor (ii) a channel or area delivered through a “push” product such as the
\nPointcast Network or interactive environment such as Microsoft’s Active Desktop.<\/p>\n
Keyword Search Terms. (a) The Keyword(TM) online search terms made available on
\n———————
\nthe AOL Service, combining AOL’s Keyword(TM) online search modifier with a term
\nor phrase specifically related to MP (and determined in accordance with the
\nterms of this Agreement), and (b) the Go Word online search terms<\/p>\n
EXECUTION COPY
\nCONFIDENTIAL<\/p>\n
22<\/p>\n
made available on CompuServe, combining CompuServe’s Go Word online search
\nmodifier with a term or phrase specifically related to MP and determined in
\naccordance with the terms of this Agreement).<\/p>\n
Licensed Content. All Content offered through the Affiliated MP Sites pursuant
\n—————-
\nto this Agreement or otherwise provided by MP or its agents in connection
\nherewith (e.g., offline or online promotional Content, Promotions, AOL
\n“slideshows,” etc.), including in each case, any modifications, upgrades,
\nupdates, enhancements, and related documentation.<\/p>\n
MP Client. The version of MP’s proprietary user interface which an AOL User
\n———
\nreceives upon downloading the MP Software from the AOL Network or which is
\nincluded on any CD-ROM distributed pursuant to this Agreement.<\/p>\n
MP Competitor. The entities listed on Exhibit B-2, and their Affiliates.
\n————- <\/p>\n
MP Interactive Site. Any Interactive Site (other than the Affiliated MP Sites)
\n——————-
\nwhich is managed, maintained, owned or controlled by MP or its agents.<\/p>\n
MP Software. The version of MP’s proprietary client executable Internet postage
\n———–
\nsoftware, in object code only, which enables end-users to print U.S. postage
\nelectronically made available for download through the AOL Network or on CD-ROM
\npursuant to this Agreement..<\/p>\n
Netcenter. Netscape Communications Corporation’s primary Internet-based
\n———–
\nInteractive Site marketed under the “Netscape Netcenter\/TM\/” brand, specifically
\nexcluding (a) the AOL Service, (b) AOL.com, (c) any international versions of
\nsuch site, (d) “ICQ,” “AOL Netfind\/TM\/,” “AOL Instant Messenger\/TM\/,”
\n“NetMail\/TM\/,” “AOL Hometown,” “My News,” “Digital City(TM),” or any similar
\nindependent product or service offered by or through such site or any other AOL
\nInteractive Site, (e) any programming or Content area offered by or through such
\nsite over which AOL does not exercise complete operational control (including,
\nwithout limitation, Content areas controlled by other parties and member-created
\nContent areas), (f) any programming or Content area offered by or through the
\nU.S. version of the America Online(R) brand service which was operated,
\nmaintained or controlled by the former AOL Studios division (e.g., Electra), (g)
\nany yellow pages, white pages, classifieds or other search, directory or review
\nservices or Content offered by or through such site or any other AOL Interactive
\nSite, (h) any property, feature, product or service which AOL or its Affiliates
\nmay acquire subsequent to the Effective Date (unless such new property, feature,
\nproduct or service is (i) a mere enhancement of the primary Internet-based
\nInteractive Site marketed under the “Netscape Netcenter\/TM\/” brand, is
\nintegrated into such Interactive Site and is not a stand-alone property,
\nfeature, product or service, or (ii) a successor to the primary Internet-based
\nInteractive Site marketed under the “Netscape Netcenter\/TM\/” brand), and (i) any
\nother version of an AOL or Netscape Communications Corporation Interactive Site
\nwhich is materially different from Netscape Communications Corporation’s primary
\nInternet-based Interactive Site marketed under the “Netscape Netcenter\/TM\/”
\nbrand, by virtue of its branding, distribution, functionality, Content or
\nservices, including, without limitation, any co-branded versions and any version
\ndistributed through any broadband distribution platform or through any platform
\nor device other than a desktop personal computer (e.g. Custom NetCenters built
\nspecifically for third parties).<\/p>\n
Package Insert Program. AOL’s program of including third party material or
\n———————-
\nproducts in third party package fullfillment.<\/p>\n
Product. The products, goods and\/or services set forth on Exhibit D.
\n——- <\/p>\n
Promotions. The promotions described on Exhibit A, any comparable promotions
\n———–
\ndelivered by AOL in accordance with Section1.1, and any additional promotions of
\nthe Affiliated MP Sites provided by AOL (including, without limitation,
\nadditional Keyword Search Terms and other navigational tools).<\/p>\n
EXECUTION COPY
\nCONFIDENTIAL<\/p>\n
23<\/p>\n
Run of Service Inventory. A collection of inventory made up of all areas of the
\n————————-
\nrelevant AOL property or service. If MP has purchased Run of Service Inventory,
\nAOL will place MP’s creative in different locations throughout the relevant
\nproperty or service in accordance with AOL internal policies. Run of Service
\nImpressions will be delivered reasonably evenly over a given time period. MP
\nmay not control placement within a Run of Service Inventory purchase and AOL
\ndoes not guarantee placement on any particular screen or group of screens
\n(except that Run of Channel Inventory will be run only in the specified
\nChannel).<\/p>\n
Transaction Revenues. The aggregate amount of transaction fees received by MP
\n——————–
\nfrom an AOL Purchaser for the printing of U.S. postage using the MP Software,
\nexcluding (a) the cost of such postage, and (b) amounts attributable to
\nshipping, refunds on unused postage, bad debt, credit card charges, sales or use
\ntaxes or duties, and credits and chargebacks for returned or canceled goods or
\nservices.<\/p>\n
USPS. United States Postal Service.
\n—- <\/p>\n
EXECUTION COPY
\nCONFIDENTIAL<\/p>\n
24<\/p>\n
Exhibit B-1<\/p>\n
AOL Competitors
\n[***]<\/p>\n
From time to time AOL shall have the right to add to such list as reasonably
\ndetermined by AOL, provided that other than with the approval of MP, which
\napproval shall not be unreasonably withheld, AOL may add to such list no more
\nthan one new entity once every three months. Notwithstanding the foregoing, to
\nthe extent that MP can demonstrate to AOL’s reasonable satisfaction that MP is
\nengaged in negotiations with any third party that is not listed on this Exhibit,
\nwhich negotiations would result in a Change of Control of MP as provided herein,
\nAOL shall not have the right to add such third party to the list after MP has so
\nreasonably demonstrated to AOL that MP is in negotiations with such third party.<\/p>\n
EXECUTION COPY
\nCONFIDENTIAL<\/p>\n
25<\/p>\n
Exhibit B-2<\/p>\n
MP Competitors<\/p>\n
Pitney-Bowes
\nE-Stamp Corporation
\nNeopost<\/p>\n
From time to time MP shall have the right to add to such list as reasonably
\ndetermined by MP, provided that other than with the approval of AOL, which
\napproval shall not be unreasonably withheld, MP (i) may not add Federal Express,
\nUnited Parcel Service or their Affiliates, (ii) may only add entities who are
\napproved to sell Internet USPS postage pursuant to the IBIP Program, and (iii)
\nmay add to such list no more than one new entity (and its Affiliates) once every
\nthree months.<\/p>\n
EXECUTION COPY
\nCONFIDENTIAL<\/p>\n
26<\/p>\n
EXHIBIT C<\/p>\n
MP Cross-Promotion
\n ——————<\/p>\n
Subject to MP’s existing contractual arrangements, within the “Customer Perks”
\nor other customer benefits area of each Additional MP Channel (each an “MP Web
\nSite”), at AOL’s option, MP shall include one of the following (each an “AOL
\nPromo”): (i) a prominent promotional banner or button having a size, prominence
\nand placement location as mutually agreed upon by the parties (but in no event
\nshall such button have a size, prominence or placement location that is less
\nfavorable, in any respect, than the size, prominence or placement location
\nprovided to any AOL Competitor listed on Exhibit B-1) to promote such AOL
\nproducts or services as AOL may designate (for example, the America Online(R)
\nbrand service, the CompuServe(R) brand service, the AOL.com(R) site, Netscape
\nNetcenter\/TM\/, any of the Digital City services or the AOL Instant Messenger\/TM\/
\nservice); or (ii) a prominent “Try AOL” feature having a size, prominence and
\nplacement location as mutually agreed upon by the parties (but in no event shall
\nsuch button have a size, prominence or placement location that is less
\nfavorable, in any respect, than the size, prominence or placement location
\nprovided to any AOL Competitor listed on Exhibit B-1) through which users can
\nobtain promotional information about AOL products or services designated by AOL
\nand, at AOL’s option, download or order the then-current version of client
\nsoftware for such AOL products or services. AOL will provide the creative
\ncontent to be used in the AOL Promo (including designation of links from such
\ncontent to other content pages). To the extent MP notifies AOL of reasonable
\ncomplaints or concerns regarding the AOL Promo or any other content or materials
\nlinked thereto or associated therewith (“Objectionable AOL Content”), AOL will,
\nto the extent such Objectionable AOL Content is within AOL’s control, use
\ncommercially reasonable efforts to respond in good faith to such complaints or
\nconcerns. MP shall use reasonable efforts to post (or update, as the case may
\nbe) the creative content supplied by AOL within the spaces for the AOL Promos
\nwithin five days of its receipt of such content from AOL. In the event that AOL
\nelects to serve the AOL Promos to the MP Web Site from an ad server controlled
\nby AOL or its agent, MP shall take all reasonable operational steps necessary to
\nfacilitate such ad serving arrangement including, without limitation, inserting
\nHTML code designated by AOL on the pages of the MP Web Site on which the AOL
\nPromos will appear. MP shall not be required to comply with the foregoing if AOL
\ndoes not maintain, throughout the Term, a special offer for MP’s end users
\nproviding a substantial benefit, as reasonably determined by AOL, either by
\nvirtue of a meaningful price discount, product enhancement, unique service
\nbenefit or other special feature. For the avoidance of doubt, it is understood
\nand agreed that the AOL Promos shall not promote any MP Competitor, Federal
\nExpress or United Parcel Service, or their Affiliates, or such entity’s products
\nor services. In connection with the foregoing, AOL will pay MP AOL’s then
\ncurrent standard bounty fee for any new subscribers to the AOL Service who
\nsubscribe to the AOL Service through the AOL Promo.<\/p>\n
In addition, in a portion of MP’s television, radio, print and “out of home”
\n(e.g., buses and billboards) advertisements and in any publications, programs,
\nfeatures or other forms of media over which MP exercises at least partial
\neditorial control, MP will use commercially reasonable efforts to include
\nspecific references or mentions (verbally where possible) of the availability of
\nthe Affiliated MP Site through the AOL Service, which are at least as prominent
\nas any references that MP makes to its principal Additional MP Channel (by way
\nof site name, related company name, URL or otherwise).<\/p>\n
EXECUTION COPY
\nCONFIDENTIAL<\/p>\n
27<\/p>\n
EXHIBIT D<\/p>\n
Description of Products and Other Content
\n —————————————–<\/p>\n
Online mailing and shipping products and services, including<\/p>\n
1. services associated with USPS mail and parcel delivery, including any class
\n of service approved by the USPS
\n2. printers
\n3. scales
\n4. envelopes
\n5. labels
\n6. forms
\n7. shipping supplies
\n8. insurance for packages
\n9. such other products and services as the Parties shall mutually agree.<\/p>\n
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\nCONFIDENTIAL<\/p>\n
28<\/p>\n
EXHIBIT E<\/p>\n
Operations
\n ———-<\/p>\n
1. General. The Affiliated MP Sites (including the Products and other
\n ——-
\nLicensed Content contained therein and provided by MP) will be in the top four
\n(4) in the online postage industry based on a mutually approved (not to be
\nunreasonably withheld) cross-section of third-party reviewers who are recognized
\nauthorities in such industry.<\/p>\n
2. Affiliated MP Site Infrastructure. MP will be responsible for all
\n ———————————
\ncommunications, hosting and connectivity costs and expenses associated with the
\nAffiliated MP Sites. MP will provide all hardware, software, telecommunications
\nlines and other infrastructure reasonably necessary to meet traffic demands on
\nthe Affiliated MP Sites from the AOL Network, as determined by MP. MP will
\ndesign and implement the network between the AOL Service and Affiliated MP Site
\nsuch that (i) no single component failure will have a materially adverse impact
\non AOL Members seeking to reach the Affiliated MP Sites from the AOL Network and
\n(ii) no single line under material control by MP will run at more than 70%
\naverage utilization for a 5-minute peak in a daily period. In this regard, MP
\nwill provide AOL, upon request, with a detailed network diagram regarding the
\narchitecture and network infrastructure supporting the Affiliated MP Sites. In
\nthe event that MP elects to create a custom version of the Affiliated MP Sites
\nin order to comply with the terms of this Agreement, MP will bear responsibility
\nfor all aspects of the implementation, management and cost of such customized
\nsite.<\/p>\n
3. Optimization; Speed. MP will use commercially reasonable efforts to ensure
\n ——————-
\nthat: (a) the functionality and features within the Affiliated MP Sites are
\noptimized for the client software then in use by AOL Members; and (b) the
\nAffiliated MP Sites are designed and populated in a manner that minimizes delays
\nwhen AOL Members attempt to access such site. At a minimum, MP will use
\ncommercially reasonable efforts to ensure that the Affiliated MP Sites’s data
\ntransfers initiate within fewer than fifteen (15) seconds on average. Prior to
\ndelivery of any Impressions hereunder, MP will permit AOL to conduct performance
\nand load testing of the Affiliated MP Sites (in person or through remote
\ncommunications), with such commercial launch not to commence until such time as
\nAOL is reasonably satisfied with the results of any such testing. AOL shall
\nconduct such testing, if any, in a reasonably prompt manner.<\/p>\n
4. User Interface. MP will maintain a graphical user interface within the
\n ————–
\nAffiliated MP Sites that is competitive in all material respects with interfaces
\nof other substantially similar sites based on substantially similar form
\ntechnology.<\/p>\n
5. Technical Problems. MP agrees to use commercially reasonable efforts to
\n ——————
\naddress material technical problems (over which MP exercises control) affecting
\nuse by AOL Members of the Affiliated MP Sites (a “MP Technical Problem”)
\npromptly following notice thereof. In the event that MP is unable to promptly
\nresolve a MP Technical Problem following notice thereof from AOL (including,
\nwithout limitation, infrastructure deficiencies producing user delays), AOL will
\nhave the right to regulate the promotions it provides to MP hereunder until such
\ntime as MP corrects the MP Technical Problem at issue.<\/p>\n
6. Monitoring. MP will use commercially reasonable efforts to ensure that the
\n ———-
\nperformance and availability of the Affiliated MP Sites is monitored on a
\ncontinuous basis. MP will provide AOL with contact information (including e-
\nmail, phone, pager and fax information, as applicable, for both during and after
\nbusiness hours) for MP’s principal business and technical representatives, for
\nuse in cases when issues or problems arise with respect to the Affiliated MP
\nSites.<\/p>\n
7. Telecommunications. Where applicable MP will utilize encryption
\n ——————
\nmethodology to secure data communications between the Parties’ data centers.<\/p>\n
8. Security. MP will utilize Internet standard encryption technologies (e.g.,
\n ——–
\nSecure Socket Layer – SSL) to provide a secure environment for conducting
\ntransactions and\/or transferring private member information (e.g. credit card
\nnumbers, banking\/financial information, and member address information) to and
\nfrom the Affiliated MP Sites. MP will facilitate periodic reviews of the
\nAffiliated MP Sites by AOL in order to evaluate the security risks of such site.
\nMP will promptly remedy any security risks or breaches of security as may be
\nidentified by AOL’s Operations Security team.<\/p>\n
9. Technical Performance.
\n ———————<\/p>\n
i. MP will design the Affiliated MP Sites to support the AOL-client
\n embedded versions of the Microsoft Internet Explorer 3.XX and 4.XX browsers
\n (Windows and Macintosh)and the Netscape Browser 4.XX and make commercially
\n reasonable efforts to support all other AOL browsers listed at:
\n “http:\/\/webmaster.info.aol.com.”<\/p>\n
ii. To the extent MP creates customized pages on the Affiliated MP Sites
\n for AOL Members, MP will develop and employ a methodology to detect AOL
\n Members (e.g. examine the HTTP User-Agent field in order to identify the
\n “AOL Member-Agents” listed at: “http:\/\/webmaster. info.aol.com).”<\/p>\n
iii. MP will periodically review the technical information made available
\n by AOL at http:\/\/webmaster.info.aol.com.<\/p>\n
iv. MP will design its site to support HTTP 1.0 or later protocol as
\n defined in RFC 1945 and to adhere to AOL’s parameters for refreshing or
\n preventing the caching of information in AOL’s proxy system as outlined in
\n the document provided at the following URL: http:\/\/webmaster.info.aol.com.
\n MP is responsible for the manipulation of these parameters in web-based
\n objects so as to allow them to be cached or not cached as outlined in RFC
\n 1945.<\/p>\n
v. Prior to releasing material, new functionality or features through the
\n Affiliated MP Sites (“New Functionality”), MP will use<\/p>\n
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\nCONFIDENTIAL<\/p>\n
29<\/p>\n
commercially reasonable efforts to (i) test the New Functionality to
\n confirm its compatibility with AOL Service client software and (ii) provide
\n AOL with written notice of the New Functionality so that AOL can perform
\n tests of the New Functionality to confirm its compatibility with the AOL
\n Service client software. Should any New Functionality through the
\n Affiliated MP Sites be released without notification to AOL, AOL will not
\n be responsible for any adverse member experience until such time that
\n compatibility tests can be performed and the New Functionality qualified
\n for the AOL Service<\/p>\n
10. AOL Internet Services MP Support. AOL will provide MP with access to the
\n ——————————–
\nstandard online resources, standards and guidelines documentation, technical
\nphone support, monitoring and after-hours assistance that AOL makes generally
\navailable to similarly situated web-based partners. AOL support will not, in any
\ncase, be involved with content creation on behalf of MP or support for any
\ntechnologies, databases, software or other applications which are not supported
\nby AOL or are related to any MP area other than the Affiliated MP Sites. Support
\nto be provided by AOL is contingent on MP providing to AOL demo account
\ninformation (where applicable), a detailed description of the Affiliated MP
\nSites’s software, hardware and network architecture and access to the Affiliated
\nMP Sites for purposes of such performance and load testing as AOL elects to
\nconduct.<\/p>\n
EXECUTION COPY
\nCONFIDENTIAL<\/p>\n
30<\/p>\n
EXHIBIT F<\/p>\n
Standard Online Commerce Terms & Conditions
\n ——————————————-<\/p>\n
1. AOL Network Distribution. MP will not authorize any third party to
\n ————————
\ndistribute or promote the Products through the AOL Network absent AOL’s prior
\nwritten approval. The Promotions and any other promotions or advertisements
\npurchased from or provided by AOL will link only to the Affiliated MP Sites,
\nwill be used by MP solely for its own benefit and will not be resold, traded,
\nexchanged, bartered, brokered or otherwise offered to any third party.<\/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 Sites
\nviolates AOL’s then-standard Terms of Service (as set forth on the America
\nOnline(R) brand service at Keyword term “TOS”), for the AOL Service or any other
\nAOL property through which the Affiliated MP Site is promoted, the terms of this
\nAgreement or any other standard, written AOL policy or (ii) AOL reasonably
\nobjects to the inclusion of any Content within the Affiliated MP Sites (other
\nthan any specific items of Content which may be expressly identified or provided
\nfor in this Agreement), then MP will, to the extent such Content is within its
\ncontrol, take commercially reasonable steps to modify such Content or block
\naccess by AOL Users to such Content using MP’s then-available technology. In the
\nevent that MP cannot, through its commercially reasonable efforts, block access
\nby AOL Users to the Content in question, then MP will provide AOL prompt written
\nnotice of such fact. AOL may then, at its option, restrict access from the AOL
\nNetwork to the Content in question using technology available to AOL. MP will
\ncooperate with AOL’s reasonable requests to the extent AOL elects to implement
\nany 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 by MP through the
\nAffiliated MP Sites (a “Contest”) complies with all applicable federal, state
\nand local laws and regulations.<\/p>\n
4. Navigation. Subject to the prior consent of MP, which consent will not be
\n ———-
\nunreasonably withheld, AOL will be entitled to establish navigational icons,
\nlinks and pointers connecting the Affiliated MP Sites (or portions thereof) with
\nother content 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 Sites a product disclaimer (the specific form and substance to be mutually
\nagreed upon by the Parties) indicating that transactions are solely between MP
\nand AOL Users purchasing 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 (other than the Affiliated MP
\nSites), subject to MP’s ownership rights in any MP trademarks, copyrighted
\nmaterial, or other intellectual property within the Affiliated MP Sites. With
\nrespect to the Affiliated MP Sites, AOL acknowledges and agrees that MP will own
\nall right, title and interest in and to the elements of graphics, design,
\norganization, presentation, layout, user interface, navigation and stylistic
\nconvention (including the digital implementations thereof) which are contained
\ntherein, subject to AOL’s ownership rights in any AOL trademarks, copyrighted
\nmaterial, or other intellectual property contained therein.<\/p>\n
7. Management of the Affiliated MP Sites. MP will use reasonable commercial
\n ————————————-
\nefforts to ensure that the Affiliated MP Sites are current, accurate and well-
\norganized at all times. MP warrants that (A) the Licensed Content provided by
\nMP: (i) will not infringe on or violate any copyright, trademark, U.S. patent or
\nany other third party right, including without limitation, any music performance
\nor other music-related rights; and (ii) will not violate any applicable law or
\nregulation, including those relating to contests, sweepstakes or similar
\npromotions; (B) it owns or has all necessary rights to the Licensed Content to
\nfulfill its obligations hereunder; and (C) a reasonable basis exists for all
\nProduct performance or comparison claims provided by MP which appear through the
\nAffiliated MP Sites. In the event that the Licensed Content is found to contain,
\nor MP reasonably believes that the Licensed Content contains material in
\nviolation of the foregoing, MP may modify of replace such content, at its
\ndiscretion. MP shall not in any manner, including, without limitation in any
\nPromotion, the Licensed Content or any publication state or imply that AOL
\nrecommends or endorses MP or MP’s Products (e.g., no statements that MP is an
\n“official” or “preferred” provider of products or services for AOL). AOL will
\nhave no obligations with respect to the Products available on or through the
\nAffiliated MP Sites, including, but not limited to, any duty to review or
\nmonitor any such Products.<\/p>\n
8. Duty to Inform. MP will promptly inform AOL of any information related to
\n ————–
\nthe Affiliated MP Sites which could reasonably lead to a claim, demand, or
\nliability of or against AOL and\/or its Affiliates by any third party. AOL will
\npromptly inform MP of any information related to the Affiliated MP Sites which
\ncould reasonably lead to a claim, demand, or liability of or against MP and\/or
\nits 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 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 Products offered, sold
\nor licensed through the Affiliated MP Sites, and AOL will have no obligations
\nwhatsoever with respect thereto. MP will receive all emails from Customers via a
\ncomputer available to MP’s customer service staff and generally respond to such
\nemails within two (2) business days of receipt. MP will receive all orders
\nelectronically and generally process all orders within one business day of
\nreceipt, provided Products ordered are not advance <\/p>\n
EXECUTION COPY
\nCONFIDENTIAL<\/p>\n
31<\/p>\n
order items. MP will use reasonable commercial efforts to ensure that all orders
\nof Products are received, processed, fulfilled and delivered on a timely and
\nprofessional basis. MP will offer AOL Users who purchase Products (excluding
\npostage which such user has already printed) through such Affiliated MP Site a
\nmoney back satisfaction guarantee. MP will bear all responsibility for
\ncompliance with federal, state and local laws in the event that Products are out
\nof stock or are no longer available at the time an order is received. Payment
\nfor Products will be collected by MP directly from customers. MP’s order
\nfulfillment 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 —————
\nin connection with (i) ongoing programming and maintenance related to the
\nAffiliated MP Sites, (ii) a redesign of or addition to the Affiliated MP Sites
\n(e.g., a change to an existing screen format or construction of a new custom
\nform), (iii) production to modify work performed by a third party provider or
\n(iv) any other type of production work, MP will work with AOL to develop a
\ndetailed 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 the agreed-
\nupon Production Plan, such agreement will be reflected in a separate work order
\nsigned by the Parties. The specific production resources which AOL allocates to
\nany production work to be performed on behalf of MP will be as determined by AOL
\nin 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 to
\nthe proper termination of any overhead account.<\/p>\n
12. Navigation Tools. Any Keyword Search Terms to be directed to the
\n —————-
\nAffiliated MP Sites shall be (i) subject to availability for use by MP and (ii)
\nlimited to the combination of the Keyword(TM) search modifier combined with a
\nregistered trademark of MP (e.g. “AOL keyword: XYZ Company Name”). AOL reserves
\nthe right to revoke at any time MP’s use of any Keyword Search Terms which do
\nnot incorporate registered trademarks of MP. MP acknowledges that its
\nutilization of a Keyword Search Term will not create in it, nor will it
\nrepresent it has, any right, title or interest in or to such Keyword Search
\nTerm, other than the right, title and interest MP holds in MP’s registered
\ntrademark independent of the Keyword Search Term. Without limiting the
\ngenerality of the foregoing, MP will not: (a) attempt to register or otherwise
\nobtain trademark or copyright protection in the Keyword Search Term; or (b) use
\nthe Keyword Search Term, except for the purposes expressly required or permitted
\nunder this Agreement. To the extent AOL allows AOL Users to “bookmark” the URL
\nor other locator for the Affiliated MP Sites, such bookmarks will be subject to
\nAOL’s control at all times. Upon the termination of this Agreement, MP’s rights
\nto any Keyword Search Terms and bookmarking will terminate.<\/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, generally applicable standards relating to
\nprovision of electronic commerce through the AOL Network (including, as a
\nminimum, use of 40-bit SSL encryption and if requested by AOL, 128-bit
\nencryption) and may also require the payment of certain reasonable certification
\nfees to the applicable entity operating the program. Each Certified Merchant in
\ngood standing will be entitled to place on its affiliated Interactive Site an
\nAOL designed and approved button promoting the merchant’s status as an AOL
\nCertified Merchant.<\/p>\n
14. Search Terms. To the extent this Agreement sets forth any mechanism by
\n ————
\nwhich the Affiliated MP Sites will be promoted in connection with specified
\nsearch terms within any AOL product or service, MP hereby represents and
\nwarrants that MP has all consents, authorizations, approvals, licenses, permits
\nor other rights necessary for MP to use such specified search terms.
\nNotwithstanding the foregoing, AOL shall have the right to suspend the use of
\nany search term if AOL has reason to believe continued use may subject AOL to
\nliability or other adverse consequences.<\/p>\n
EXECUTION COPY
\nCONFIDENTIAL<\/p>\n
32<\/p>\n
EXHIBIT G<\/p>\n
Standard Legal Terms & Conditions
\n ———————————<\/p>\n
1. Promotional Materials. Each Party will submit to the other Party, for its
\n ———————
\nprior written approval, which will not be unreasonably withheld or delayed, any
\nmarketing, advertising, or other promotional materials, excluding Press
\nReleases, related to the Affiliated MP Sites and\/or referencing the other Party
\nand\/or its trade names, trademarks, and service marks (the “Promotional
\nMaterials”);provided, however, that, following the Initial Release, either
\nParty’s subsequent factual reference to the existence of a business relationship
\nbetween the Parties in Promotional Materials, will not require the approval of
\nthe other Party. Each Party will solicit and reasonably consider the views of
\nthe other Party in designing and implementing such Promotional Materials. Once
\napproved, the Promotional Materials may be used by a Party and its Affiliates
\nfor the purpose of promoting the Affiliated MP Sites and the content contained
\ntherein and reused for such purpose until such approval is withdrawn with
\nreasonable prior notice. In the event such approval is withdrawn, existing
\ninventories of Promotional Materials may be depleted.<\/p>\n
2. License. MP hereby grants AOL a non-exclusive, non-transferable, limited
\n ——-
\nlicense to market, distribute, reproduce, display, perform, transmit and promote
\nthe Licensed Content (or any portion thereof) through such areas or features of
\nthe AOL Network as AOL deems appropriate, solely for the purpose of promoting MP
\nand the Affiliated MP Sites. MP acknowledges and agrees that the foregoing
\nlicense permits AOL to distribute portions of the Licensed Content in
\nsynchronism or timed relation with visual displays prepared by MP or AOL (e.g.,
\nas part of an AOL “slideshow”). In addition, AOL Users will have the right to
\naccess and use the Affiliated MP Sites.<\/p>\n
3. Trademark License. In designing and implementing the Promotional Materials
\n —————–
\nand subject to the other provisions contained herein, MP and its Affiliates will
\nbe entitled to use the following trade names, trademarks, and service marks of
\nAOL: the “America Online(R)” brand service, “AOL(TM)” service\/software and AOL’s
\ntriangle logo, for which AOL holds all rights necessary for use in connection
\nwith this Agreement; and AOL and its Affiliates will be entitled to use the
\nStamps.com trademark for use in connection with this Agreement (collectively,
\ntogether with the AOL marks listed above, the “Marks”); provided that each
\nParty: (i) does not create a unitary composite mark involving a Mark of the
\nother Party without the prior written approval of such other Party; (ii)
\ndisplays symbols and notices clearly and sufficiently indicating the trademark
\nstatus and ownership of the other Party’s Marks in accordance with applicable
\ntrademark law and practice; and (iii) complies with the then-current usage
\nguidelines of the other Party.<\/p>\n
4. Ownership of Trademarks. Each Party acknowledges the ownership right 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 in such Marks.<\/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 reasonable quality standards set by the other Party. Each Party
\nagrees to supply the other Party, upon request, with a reasonable number of
\nsamples of any Materials publicly disseminated by such Party which utilize the
\nother Party’s Marks. Each Party will comply with all applicable laws,
\nregulations, and customs and obtain any required government approvals pertaining
\nto use of the other Party’s Marks.<\/p>\n
6. Infringement Proceedings. Each Party agrees to promptlynotify 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. (A) Each Party represents and warrants to
\n ——————————
\nthe other 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. (B) MP hereby represents and warrants that it possesses
\nall authorizations, approvals, consents, licenses, permits, certificates or
\nother rights and permissions necessary to sell the Products. (C) AOL hereby
\nrepresents and warrants (I) that any Content provided by AOL, including without
\nlimitation the AOL Promos: (a) will not infringe on or violate any copyright,
\ntrademark, U.S. patent or any other third party right, including without
\nlimitation, any music performance or other music-related rights; and (b) will
\nnot violate any applicable law or regulation, including those relating to
\ncontests, sweepstakes or similar promotions; and (II) it owns or has all
\nnecessary rights to the Content to fulfill its obligations hereunder. In the
\nevent that such content is found to contain, or AOL reasonably <\/p>\n
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\nCONFIDENTIAL<\/p>\n
33<\/p>\n
believes that the Content contains material in violation of the foregoing, AOL
\nmay modify of replace such content, at its discretion.<\/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,
\nand for a period of three years following expiration or termination of this
\nAgreement for any reason, 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 press release or disclosure is required by law, rule,
\nregulation or government or court order. In such event, the disclosing Party
\nwill provide at least five (5) business days prior written notice of such
\nproposed disclosure to the other Party. Further, in the event such disclosure is
\nrequired of either Party under the laws, rules or regulations of the Securities
\nand Exchange Commission or any other applicable governing body, such Party will
\n(i) redact mutually agreed-upon portions of this Agreement to the fullest extent
\npermitted under applicable laws, rules and regulations and (ii) submit a request
\nto such governing body that such portions and other provisions of this Agreement
\nreceive confidential treatment under the laws, rules and regulations of the
\nSecurities and Exchange Commission or otherwise be held in the strictest
\nconfidence to the fullest extent permitted under the laws, rules or regulations
\nof any other applicable governing body.<\/p>\n
9. Limitation of Liability; Disclaimer; Indemnification.
\n —————————————————-<\/p>\n
9.1 Liability. UNDER NO CIRCUMSTANCES WILL EITHER
\n————–
\nPARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL,
\nSPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE
\nPOSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THE AGREEMENT (EXCEPT FOR
\nEACH PARTY’S CONFIDENTIALITY OBLIGATIONS), THE SALE OF PRODUCTS, THE USE OR
\nINABILITY TO USE THE AOL NETWORK, THE AOL SERVICE, AOL.COM OR THE AFFILIATED MP
\nSITES, OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT
\nLIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS
\n(COLLECTIVELY, “DISCLAIMED DAMAGES”); PROVIDED THAT EACH PARTY WILL REMAIN
\nLIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A
\nTHIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO SECTION 9.3. EXCEPT
\nFOR EACH PARTY’S CONFIDENTIALITY OBLIGATIONS AND AS PROVIDED IN SECTION 9.3, (I)
\nLIABILITY ARISING UNDER THIS AGREEMENT WILL BE LIMITED TO DIRECT, OBJECTIVELY
\nMEASURABLE DAMAGES, (II) DURING THE INITIAL TERM THE MAXIMUM LIABILITY OF ONE
\nPARTY TO THE OTHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS
\nAGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT OF FIXED GUARANTEED PAYMENT
\nOBLIGATIONS OWED BY MP HEREUNDER IN THE YEAR IN WHICH THE EVENT GIVING RISE TO
\nLIABILITY OCCURS, AND (III) DURING ANY RENEWAL TERM, THE MAXIMUM LIABILITY OF
\nONE PARTY TO THE OTHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS
\nAGREEMENT WILL NOT EXCEED [***]; PROVIDED THAT EACH PARTY WILL REMAIN LIABLE FOR
\nTHE AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY PURSUANT
\nTO THE AGREEMENT.<\/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, WITH RESPECT TO THE SUBJECT
\nMATTER HEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR
\nA PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR
\nCOURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE
\nPARTIES SPECIFICALLY DISCLAIM ANY WARRANTY REGARDING THE PROFITABILITY OF THE
\nAFFILIATED MP SITES.<\/p>\n
9.3 Indemnity. Subject to Section 9.4 below, either Party will defend,
\n————–
\nindemnify and hold harmless the other Party and the officers, directors, agents,
\nAffiliates, distributors, franchisees and employees of the other Party from any
\nand all third party claims, demands, liabilities, costs or expenses, including
\nreasonable attorneys’ fees, resulting from the indemnifying Party’s material
\nbreach of any duty, representation, or warranty of this Agreement.<\/p>\n
MP Software. Subject to Section 9.4 below, if an action is brought against
\n ———–
\nAOL claiming that the use of the MP Software as contemplated hereunder infringes
\nany United States patent, or any copyright or trade secret rights of a third
\nparty, MP shall defend AOL and shall pay the damages and costs finally awarded
\nagainst AOL, or settlements entered into by MP on AOL’s behalf (including
\nreasonable attorneys’ fees), in the action. The indemnity set forth herein will
\nnot apply if and to the extent that the infringement claim results from (a) a
\ncorrection, modification or unauthorized merged portion of the MP Software not
\nprovided or authorized by MP, (b) the failure to use commercially reasonable
\nefforts to promptly install an update provided by MP, that does not materially
\nimpair or diminish the functionality of the MP Software, or (c) the combination
\nof the MP Software with items not provided by MP, if such infringement would
\nhave been avoided by use of the MP Software alone.<\/p>\n
If the MP Software, or any part thereof, is, or in the opinion ofMP may
\nbecome, the subject of any claim for infringement, then MP may, at its option
\nand expense, either (i) substitute a substantially equivalent non-infringing
\nitem, (ii) modify the infringing item so that it no longer infringes but remains
\nfunctionally equivalent, <\/p>\n
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\nCONFIDENTIAL<\/p>\n
34<\/p>\n
(iii) obtain for AOL the right to continue using such item, or (iv) if it is not
\ncommercially reasonable to take the actions specified in items (i)-(iii) above,
\nterminate this Agreement and AOL’s licenses hereunder solely with respect to the
\ndistribution and integration of the MP Software.<\/p>\n
Entire Liability. THE FOREGOING PROVISIONS OF THIS SECTION 9.3 STATE THE
\n —————-
\nENTIRE LIABILITY AND OBLIGATIONS OF MP, AND THE EXCLUSIVE REMEDY OF AOL, WITH
\nRESPECT TO THE INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER
\nINTELLECTUAL PROPERTY RIGHT BY THE MP SOFTWARE.<\/p>\n
9.4 Claims. Each Party (the “Indemnitee”) will promptly notify the other Party
\n———–
\n(the “Indemnitor”) of any claim, action or demand (an “Action”) for which
\nindemnity is claimed, permit the Indemnitor to have sole authority to defend
\nand\/or negotiate a settlement of such Action, with counsel of the Indemnitor’s
\nchoice and reasonably acceptable to the Indemnitee, and provide reasonable
\nassistance and cooperation to the Indemnitor in the investigation, defense and
\nsettlement of such Action at the Indemnitor’s expense. The Indemnitee shall be
\nentitled to participate fully in the defense of any Action at its own expense
\nwith counsel of its choice. The Indemnitor shall have no obligation for any
\nsettlement that the Indemnitor does not approve in writing; provided that the
\nIndemnitor shall not, without the Indemnitee’s prior written consent, enter into
\nany settlement or compromise that would impose any obligation upon the
\nIndemnitee, impair the rights of the Indemnitee or require the Indemnitee to pay
\nany amount.<\/p>\n
10. 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 10 will be
\nenforceable independent of and severable from any other enforceable or
\nunenforceable provision of this Agreement.<\/p>\n
11. Solicitation of AOL Users. During the term of the Agreement and for a two
\n ————————-
\nyear period thereafter, subject to the cure provisions set forth in this
\nAgreement, MP will not use the AOL Network (including, without limitation, the
\ne-mail network contained therein) to solicit AOL Users on behalf of an AOL
\nCompetitor specifically listed on Exhibit B-1. More generally, MP will not send
\nunsolicited, commercial e-mail (i.e., “spam”) or other online communications
\nthrough or into AOL’s products or services, absent a Prior Business
\nRelationship. For purposes of this Agreement, a “Prior Business Relationship”
\nwill mean that the AOL User to whom commercial e-mail or other online
\ncommunication is being sent has voluntarily either (i) engaged in a transaction
\nwith MP or (ii) provided information to MP through a contest, registration, or
\nother communication, which included clear notice to the AOL User that the
\ninformation provided could result in commercial e-mail or other online
\ncommunication being sent to that AOL User by MP or its agents. Any commercial e-
\nmail or other online communications to AOL Users which are otherwise permitted
\nhereunder, will (a) include a prominent and easy means to “opt-out” of receiving
\nany future commercial communications from MP, and (b) shall also be subject to
\nAOL’s then-standard restrictions on distribution of bulk e-mail (e.g., related
\nto the time and manner in which such e-mail can be distributed through or into
\nthe AOL product or service in question). <\/p>\n
12. AOL User Communications. To the extent that MP is permitted to communicate
\n ———————–
\nwith AOL Users under Section 11 of this Exhibit G, in any such communications to
\nAOL Users on or off the Affiliated MP Sites (including, without limitation, e-
\nmail solicitations), MP will not encourage AOL Users to take any action
\ninconsistentwith the scope and purpose of this Agreement, including without
\nlimitation, the following actions: (i) using an Interactive Site other than the
\nAffiliated MP Sites for the purchase of Products, or (ii) changing the default
\nhome page on the AOL browser. Additionally, with respect to such AOL User
\ncommunications, in the event that MP encourages an AOL User to purchase products
\nthrough such communications, MP shall ensure that (a) the AOL Network is
\npromoted as the primary means through which the AOL User can access the
\nAffiliated MP Sites and (b) any link to the Affiliated MP Sites will link to a
\npage which indicates to the AOL User that such user is in a site which is
\naffiliated with the AOL Network.<\/p>\n
13. Collection and Use of User Information. MP shall ensure that its
\n ————————————–
\ncollection, use and disclosure of information obtained from AOL Users under this
\nAgreement (“User Information”) complies with (i) all applicable laws and
\nregulations and (ii) AOL’s standard privacy policies, available on the AOL
\nService at the keyword term “Privacy” (or, in the case of the Affiliated MP
\nSites, MP’s standard privacy policies so long as such policies are prominently
\npublished on the site and provide adequate notice, disclosure and choice to
\nusers regarding MP’s collection, use and disclosure of user information). MP
\nwill not disclose User Information collected hereunder to any third party in a
\nmanner that identifies AOL Users as end users of an AOL product or service or
\nuse User Information collected under this Agreement to market an AOL Competitor.<\/p>\n
14. 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
15. Independent Contractors. The Parties to this Agreement are independent
\n ———————–
\ncontractors. Neither Party is an agent, representative or employee of the other
\nParty. Neither Party will have any right, power or authority to enter into any
\nagreement for or on behalf of, 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
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\nCONFIDENTIAL<\/p>\n
35<\/p>\n
16. 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 (i) on the delivery date if
\ndelivered by confirmed facsimile; (ii) on the delivery date if delivered
\npersonally to the Party to whom the same is directed; (iii) one business day
\nafter deposit with a commercial overnight carrier, with written verification of
\nreceipt; or (iv) five business days after the mailing date, whether or not
\nactually received, if sent by U.S. mail, return receipt requested, postage and
\ncharges prepaid, or any other means of rapid mail delivery for which a receipt
\nis available. In the case of AOL, such notice will be provided to both the
\nSenior Vice President for Business Affairs (fax no. 703-265-1206) and the Deputy
\nGeneral Counsel (fax no. 703-265-1105), each at the address of AOL set forth in
\nthe first paragraph of this Agreement. In the case of MP, such notice will be
\nprovided to both Doug Walner and Stamps.com Legal Department (each at fax no.
\n310-314-8535), each at the address for MP set forth in the first paragraph of
\nthis Agreement.<\/p>\n
17. Launch Dates. In the event that any terms contained herein relate to or
\n ————
\ndepend on the commercial launch date of the Affiliated MP Sites contemplated by
\nthis Agreement (the “Launch Date”), then it is the intention of the Parties to
\nrecord such Launch Date in a written instrument signed by both Parties promptly
\nfollowing such Launch Date; provided that, in the absence of such a written
\ninstrument, the Launch Date will be as mutually agreed upon by the Parties.<\/p>\n
18. No Waiver. The failure of either Party to insist upon or enforce strict
\n ———
\nperformance by the other Party of any provision of this Agreement or to exercise
\nany right under this Agreement will not beconstrued 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
19. Return of Information. Upon the expiration or termination of this
\n ———————
\nAgreement for any reason, each Party will, upon the written request of the other
\nParty, return or destroy (at the option of the Party receiving the request) all
\nConfidential Information, documents, manuals and other materials specified by
\nthe other Party.<\/p>\n
20. Survival. Sections 1.2, 5.7 and 6 of the body of the Agreement; Sections 8
\n ——–
\nthrough 10, the first sentence of Section 11, 14 through 16, 18 through 20, and
\n27 of this Exhibit; and Section 6 of Exhibit H, will survive the completion,
\nexpiration, termination or cancellation of this Agreement for any reason.<\/p>\n
21. 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
22. 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, and in the case of AOL, by an
\nexecutive of at least the same standing to the executive who signed the
\nAgreement.<\/p>\n
23. 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
24. Assignment. Except as otherwise provided in this Section 24, MP will not
\n ———-
\nassign this Agreement or any right, interest or benefit under this Agreement
\nwithout the prior written consent of AOL. Notwithstanding the foregoing, MP may
\nassign this Agreement, upon thirty (30) days prior written notice to AOL, to a
\ncorporation or limited liability company or other entity which meets the
\nfollowing criteria: (a) such entity is not an AOL Competitor listed on Exhibit
\nB-1, (b) such entity intends to conduct after the assignment the business
\nconducted by MP prior to the assignment, and (c) such entity is of equal or
\nsuperior creditworthiness to MP, as determined by AOL in its reasonable
\ndiscretion. Subject to the foregoing, this Agreement will be fully binding upon,
\ninure to the benefit of and be enforceable by the Parties hereto and their
\nrespective successors and assigns.<\/p>\n
25. 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
\neffect.<\/p>\n
26. Remedies. Except where otherwise specified, the rights and remedies
\n ——–
\ngranted to a Party under this Agreement are cumulative and in addition to, and
\nnot in lieu of, any other rights or remedies which the Party may possess at law
\nor in equity; provided that, in connection with any dispute hereunder, MP will
\nnot be entitled to offset any amounts that it claims to be due and payable from
\nAOL against amounts otherwise payable by MP to AOL hereunder.<\/p>\n
27. Applicable Law. Except as otherwise expressly provided herein, this
\n ————–
\nAgreement will be interpreted, construed and enforced in all respects in
\naccordance with the laws of the Commonwealth of Virginia except for its
\nconflicts of laws principles.<\/p>\n
28. Export Controls. Both Parties will adhere to all applicable laws,
\n —————
\nregulations and rules relating to the export of technical data and will not
\nexport or re-export any technical data, any products received from the other
\nParty or the direct product of such technical data to any proscribed country
\nlisted in such applicable laws, regulations and rules unless properly
\nauthorized.<\/p>\n
29. Headings. The captions and headings used in this Agreement are inserted
\n ——–
\nfor convenience only and will not affect themeaning or interpretation of this
\nAgreement.<\/p>\n
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\nCONFIDENTIAL<\/p>\n
36<\/p>\n
30. Counterparts. This Agreement may be executed in counterparts, each of
\n ————
\nwhich will be deemed an original and all of which together will constitute one
\nand the same document<\/p>\n
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\nCONFIDENTIAL<\/p>\n
37<\/p>\n
EXHIBIT H<\/p>\n
SOFTWARE DISTRIBUTION TERMS AND CONDITIONS
\n ——————————————<\/p>\n
1. Terms and Conditions. The following terms and conditions shall govern the
\n ——————–
\n distribution by AOL of the MP Software.<\/p>\n
2. Definitions. As used in this Exhibit H, the following terms shall have the
\n ———–
\n following meanings:<\/p>\n
“Affiliate” shall mean an entity in which AOL holds at least a nineteen
\n ———
\n percent (19%) equity interest.<\/p>\n
“Authorized Testing Service” shall mean any third-party person or entity
\n ————————–
\n designated in writing by AOL, in its sole discretion, to offer support and
\n quality assurance services relating to interoperability of third party
\n products with AOL Software (as defined below).<\/p>\n
“Customer” shall mean end-user customers of the MP Software.
\n ——– <\/p>\n
“Documentation” shall mean the documentation provided to AOL by MP for use
\n ————-
\n with the MP Software.<\/p>\n
“Software License Agreement” shall mean MP’s standard software license
\n ————————–
\n agreement between MP and Customers, as provided by MP to AOL for inclusion
\n with the MP Software.<\/p>\n
3. License Grant; Ownership. Subject to all the terms and conditions of this
\n ————————
\n Agreement, MP hereby grants to AOL and its Affiliates a non-exclusive, non-
\n transferable, royalty-free license to use, reproduce, market, promote and
\n distribute to end users through its usual and customary channels of
\n distribution, solely to the limited extent and for the express purposes
\n stated herein, the MP Software in object code form, through CD-ROMs or any
\n other physical media containing software (“AOL Software”) used to access all
\n or any part of the AOL Network. Subject only to the limited rights and
\n licenses expressly granted herein, MP shall retain all right, title and
\n interest in and to the MP Software and each copy thereof, and all
\n intellectual property rights with respect thereto.<\/p>\n
4. Copying\/Reverse Engineering. AOL agrees not to (i) disassemble, decompile
\n —————————
\n or otherwise reverse engineer the MP Software or otherwise attempt to learn
\n the source code, structure, algorithms or ideas underlying the MP Software,
\n (ii) take any action contrary to MP’s Software License Agreement, except as
\n expressly and unambiguously agreed upon by MP in writing, (iii) alter or
\n modify the MP Software except as agreed upon by MP in writing, (iv) attempt
\n to disable any security devices or codes incorporated in the MP Software, or
\n (v) allow or assist others to do any of the foregoing.<\/p>\n
5. MP’s Obligations.
\n —————- <\/p>\n
i) Certification Requirements. AOL shall provide to MP a written
\n ————————–
\n copy of, and MP shall comply with, all quality assurance and
\n testing requirements for the MP Software to be distributed by AOL
\n hereunder, as may be reasonably amended by AOL from time to time,
\n and together with any other reasonable quality assurance and
\n testing requirements delivered by AOL in writing (including
\n amendments) to MP, the (“Certification Requirements”).<\/p>\n
ii) Support and Quality Assurance by the Authorized Testing Service.
\n —————————————————————
\n The Authorized Testing Service shall provide support and quality
\n assurance testing with respect to the MP Software and
\n interoperability of such products with the AOL Software and
\n applicable AOL service. Support and quality assurance testing
\n shall be provided on terms and conditions to be worked out between
\n MP and the Authorized Testing Service and at MP’s expense. In
\n connection with the foregoing, MP shall deliver a master copy of
\n the MP Software in object code form, along with any required
\n Documentation to the Authorized Testing Service and AOL. The
\n Authorized Testing Service shall perform quality assurance testing
\n on the MP Software in accordance with the Certification
\n Requirements. If and when the Authorized Testing Service
\n determines that any such product meets the relevant Certification
\n Requirements, the Authorized Testing Service shall then certify in
\n writing that such product is a “Complying Product”. AOL shall use
\n commercially reasonable efforts, if and to the extent within its
\n control and consistent with the purposes hereof, to help expedite
\n such testing processes by the Authorized Testing Service.<\/p>\n
38<\/p>\n
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iii) AOL Release Approval. AOL shall have the right to inspect the
\n ——————–
\n Complying Product prior to commercial production or public release
\n by AOL under this Agreement. AOL shall, in its discretion (but
\n based upon commercially reasonable factors, including without
\n limitation a change of control of MP, or technical or operational
\n problems or incompatibilities), provide notice of approval or
\n rejection within fifteen (15) business days of receiving
\n certification from the Authorized Testing Service that such
\n product is a Complying Product together with a copy of the
\n Complying Product. AOL shall have no obligation to distribute any
\n copy of the MP Software that has not first obtained release
\n approval from AOL. The parties may negotiate in good faith to cure
\n any circumstance or issue causing AOL to so reject, provided that
\n if AOL does not approve release pursuant to this Section 5(iii),
\n then AOL shall refund to MP a pro rata portion of the portion of
\n the Guaranteed Payment allocated to the distribution of MP
\n Software pursuant to this Exhibit H.<\/p>\n
iv) Re-certification Requirements. Revisions of copies of the MP
\n —————————–
\n Software that have previously been certified by the Authorized
\n Testing Service must be re-certified. For purposes of this
\n provision, a “revision” is defined as any version of a Complying
\n Product that contains programming code that differs materially
\n from the Complying Product. Without limiting the foregoing,
\n revisions include maintenance updates, patches, fixes, and new
\n releases of a Complying Product. Revisions to a Complying Product
\n shall be re-certified according to the Certification Requirements,
\n unless AOL or the Authorized Testing Service first provides to MP
\n in writing a list of “Re-Certification Requirements,” if any, in
\n which case such Re-Certification Requirements shall apply.<\/p>\n
6. AOL’s Distribution Obligations. Subject to the provisions of Section 5 of
\n ——————————
\n this Exhibit H, and provided that MP is not in material breach of this
\n Agreement after the expiration of any applicable cure period, AOL shall use
\n commercially reasonable efforts to distribute the MP Software with a minimum
\n number of [***] CD-ROMs containing the AOL Software which is sent by AOL in
\n direct marketing programs targeted to prospective customers located in North
\n America, during the Initial Term; provided however, that AOL’s failure to
\n distribute the minimum number of CD-ROMs required hereunder during the
\n Initial Term shall not constitute a breach of this Agreement by AOL; instead
\n AOL shall be required after the Initial Term to distribute a number of CD-
\n ROMs sufficient to reach such minimum number. In the event that AOL
\n discontinues the distribution of AOL Software via CD-ROMs, AOL will work
\n with MP to provide MP with distribution opportunities that are reasonably
\n satisfactory to MP (e.g. continuation of integration on the AOL Network),
\n and reasonably calculated to provide downloads of the MP Software equal in
\n number to the downloads which would have been reasonably anticipated had the
\n minimum number of CD-ROMs been distributed (“Substitute Distribution”).
\n Notwithstanding the foregoing, AOL agrees to distribute a minimum of [***]
\n of the above-referenced CD-ROMs during the first contract year. For the
\n avoidance of doubt, it is understood and expressly agreed that the CD-ROMs
\n to be distributed by AOL pursuant to this Agreement shall be in addition to,
\n and not in lieu of, those which AOL is required to distribute pursuant to
\n the Prior Agreement. When the end-user installs the AOL Software on the end-
\n user’s system, the MP Software installation program will be automatically
\n copied onto the end-user’s hard drive, and the end-user will be presented
\n with the opportunity to install the MP Software. AOL will distribute the MP
\n Software together with, and subject to, the terms of the Software License
\n Agreement furnished by MP. Notwithstanding the foregoing, (i) once AOL
\n begins distribution of the MP Software, AOL shall not be obligated to
\n distribute any updates or upgrades to the MP Software, and (ii) AOL reserves
\n the right, in the event of technical problems or incompatibilities (e.g.,
\n new “bugs”)(collectively, an “Adverse User Situation”), not to include any
\n MP Software on such CD-ROMs (a “Pull”); provided however that, in the event
\n of a Pull, AOL shall deliver written notice thereof to MP within five (5)
\n business days of such Pull. A Pull will remain in effect as long as any
\n Adverse User Situation remains, in AOL’s reasonable discretion.
\n Notwithstanding any provision of this Agreement to the contrary, AOL (i)
\n shall not be required to include the MP Software on all CD-ROMs distributed
\n during the Term and (ii) may discontinue the distribution of CD-ROMs at any
\n time during the Term; provided, however, that AOL shall provide MP with
\n Substitute Distribution.<\/p>\n
7. Distribution Requirements. End-users who install the MP Software
\n ————————-
\n distributed pursuant to this will be prompted to send an electronic
\n registration to MP the first time they attempt to use the MP Software via
\n the end-user system on which the MP Software is installed. During such
\n electronic registration, MP shall create a process by which such end-user
\n will be identified as a user obtained through the CD-ROMs distributed by AOL
\n hereunder. AOL agrees not to interfere with, obfuscate, remove or alter any
\n of the automatic installation mechanisms, electronic registration
\n mechanisms, or patent, copyright or other proprietary rights notices
\n included in the MP Software provided by MP to AOL. AOL’s obligations <\/p>\n
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under this Section 7 shall be contingent upon MP’s delivery of MP Software
\n that has been quality assurance tested in accordance with Section 5 hereof.<\/p>\n
8. Installation and Support. MP shall be solely responsible for providing
\n ————————
\n Customers with installation, maintenance and technical integration support
\n with respect to the MP Software. AOL shall notify MP as soon as possible of
\n AOL’s receipt of any customer requests for support or assistance with
\n respect to the MP Software.<\/p>\n
9. Size of MP Software. MP agrees that the file size of the MP Software shall
\n ——————-
\n be at all times during the Term less than 7.5 megabytes.<\/p>\n
10. “Above the Fold” Placement. The MP Software shall be listed “above the
\n ————————–
\n fold” among software available for download as part of the CD Extras section
\n of any CD-ROM distributed in fulfillment of this Exhibit H.<\/p>\n
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Exhibit I<\/p>\n
Technology Integration
\n ———————-<\/p>\n
Download Areas
\n————–<\/p>\n
In accordance with the Launch Dates below, AOL shall make the MP Software
\navailable for download on the AOL Network as follows:<\/p>\n
[***]<\/p>\n
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[***]<\/p>\n
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EXHIBIT J
\n ———<\/p>\n
CO-BRANDING REQUIREMENTS
\n ————————<\/p>\n
I. AOL Service. Commencing on a mutually agreed upon date(s) after the
\n ———–
\n Effective Date. MP shall create a version of the principal Additional MP
\n Channel customized for distribution through the AOL Service (the “MP\/AOL
\n Service Site”) by (w) developing the MP\/AOL Service Site as a “cul de sac”
\n site containing no links outside of the MP\/AOL Service Site other than to
\n an agreed upon point on the AOL Service or other AOL or third party Content
\n determined mutually by the Parties, but in no event to an area promoting an
\n MP Competitor (x) displaying on each page of the MP\/AOL Service Site
\n headers and footers of size and type determined by MP, after good faith
\n consideration of AOL’s requirements, and which contain both AOL Service and
\n MP branding and (y) using commercially reasonable efforts to program each
\n page of the MP\/AOL Service Site with a co-branded domain name (e.g.,
\n stamps.aol.com). Subject to the terms of this Agreement, the MP\/AOL Service
\n Site shall contain Content of substantially the same quality, scope,
\n functionality, terms and conditions as the Content on any Additional MP
\n Channel. MP will, subject to the terms of this Agreement, program and
\n manage the Content on the MP\/AOL Service Site for distribution through AOL
\n Service.<\/p>\n
II. AOL.com. Commencing on a mutually agreed upon date(s) after the Effective
\n ——-
\n Date. MP shall create a version of the principal Additional MP Channel
\n customized for distribution through AOL.com (the “MP\/AOL.com Site”) by (w)
\n developing the MP\/AOL.com Site as a “cul de sac” site containing no links
\n outside of the MP\/AOL.com Site other than to an agreed upon point on
\n AOL.com or other AOL or third party Content determined mutually by the
\n Parties, but in no event to an area promoting an MP Competitor (x)
\n displaying on each page of the MP\/AOL.com Site headers and footers of size
\n and type determined by MP, after good faith consideration of AOL’s
\n requirements, and which contain both AOL.com and MP branding and (y) using
\n commercially reasonable efforts to program each page of the MP\/AOL.com Site
\n with a co-branded domain name (e.g., stamps.aol.com). Subject to the terms
\n of this Agreement, the MP\/AOL.com Site shall contain Content of
\n substantially the same quality, scope, functionality, terms and conditions
\n as the Content on any Additional MP Channel. MP will, subject to the terms
\n of this Agreement, program and manage the Content on the MP\/AOL.com Site
\n for distribution through AOL.com.<\/p>\n
III. CompuServe Service. Commencing on a mutually agreed upon date(s) after the
\n ——————
\n Effective Date. MP shall create a version of the principal Additional MP
\n Channel customized for distribution through CompuServe (the “MP\/CIS Site”)
\n by (w) developing the MP\/CIS Site as a “cul de sac” site containing no
\n links outside of the MP\/CIS Site other than to an agreed upon point on the
\n CompuServe or other AOL or third party Content determined mutually by the
\n Parties, but in no event to an area promoting an MP Competitor (x)
\n displaying on each page of the MP\/CIS Site headers and footers of size and
\n type determined by MP, after good faith consideration of AOL’s
\n requirements, and which contain both CIS and MP branding and (y) using
\n commercially reasonable efforts to program each page of the MP\/CIS Site
\n with a co-branded domain name (e.g., stamps.compuserve.com). Subject to the
\n terms of this Agreement, the MP\/CIS Site shall contain Content of
\n substantially the same quality, scope, functionality, terms and conditions
\n as the Content on any Additional MP Channel. MP will, subject to the terms
\n of this Agreement, program and manage the Content on the MP\/CIS Site for
\n distribution through CIS.<\/p>\n
IV. Netscape Netcenter. Commencing on a mutually agreed upon date(s) after the
\n ——————
\n Effective Date. MP shall create a version of the principal Additional MP
\n Channel customized for distribution through Netcenter (the “MP\/Netcenter
\n Site”) by (w) developing the MP\/Netcenter Site as a “cul de sac” site
\n containing no links outside of the MP\/Netcenter Site other than to an
\n agreed upon point on Netcenter or other AOL or third party Content
\n determined mutually by the Parties, but in no event to an area promoting an
\n MP Competitor (x) displaying on each page of the MP\/Netcenter Site headers
\n and footers of size and type determined by MP, after good faith
\n consideration of AOL’s requirements, and which contain both Netcenter and
\n MP branding and (y) using commercially reasonable efforts to program each
\n page of the MP\/Netcenter Site with a co-branded domain name (e.g.,
\n stamps.netcenter.com). Subject to the terms of this Agreement, the
\n MP\/Netcenter Site shall contain Content of substantially the same quality,
\n scope, functionality, terms and conditions as the Content on any Additional
\n MP Channel. MP will, subject to the terms of this Agreement, program and
\n manage the Content on the MP\/Netcenter Site for distribution through
\n Netcenter.<\/p>\n
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V. Digital City. Commencing on a mutually agreed upon date(s) after the
\n ————
\n Effective Date. MP shall create a version of the principal Additional MP
\n Channel customized for distribution through Digital City (the “MP\/DCI
\n Site”) by (w) developing the MP\/DCI Site as a “cul de sac” site containing
\n no links outside of the MP\/DCI Site other than to an agreed upon point on
\n Digital City or other AOL or third party Content determined mutually by the
\n Parties, but in no event to an area promoting an MP Competitor (x)
\n displaying on each page of the MP\/DCI Site headers and footers of size and
\n type determined by MP, after good faith consideration of AOL’s
\n requirements, and which contain both Digital City and MP branding and (y)
\n using commercially reasonable efforts to program each page of the MP\/DCI
\n Site with a co-branded domain name (e.g., stamps.digitalcity.com). Subject
\n to the terms of this Agreement, the MP\/DCI Site shall contain Content of
\n substantially the same quality, scope, functionality, terms and conditions
\n as the Content on any Additional MP Channel. MP will, subject to the terms
\n of this Agreement, program and manage the Content on the MP\/DCI Site for
\n distribution through AOL Service.<\/p>\n
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EXHIBIT K<\/p>\n
MAILING LISTS
\n ————-<\/p>\n
1. AOL will extend a [***] discount to Stamps.com off the standard base rental
\n rate for any AOL mailing list available for rental. This discount will only
\n apply to approved Stamps.com list orders that are placed by Stamps.com
\n directly, and not through a 3rd-party list broker.<\/p>\n
2. All additional data selects will be billed at 100% of published data card
\n rates.<\/p>\n
3. AOL’s list management company, List Services, Inc, must receive a final mail
\n sample along with every list order submitted for approval. Rental of mailing
\n lists will be subject to AOL’s standard terms and conditions.<\/p>\n
4. As with any mailer, Stamps.com will be required to sign and return the
\n standard AOL List Rental Agreement to List Services, before AOL can fulfill
\n the first list rental order.<\/p>\n
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