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EXHIBIT 10.17
EXECUTION COPY
STRATEGIC MARKETING AND CONTENT AGREEMENT
This STRATEGIC MARKETING AND CONTENT AGREEMENT (this "Agreement") is
made as of the 31st day of August, 2000 (the "Effective Date") between America
Online, Inc., a Delaware corporation with principal executive offices at 22000
AOL Way, Dulles, Virginia 20166 ("AOL"), and OmniSky Corporation, a Delaware
corporation with principal executive offices at 1001 Elwell Court, Palo Alto,
California 94303 ("OmniSky") (each a "Party," and collectively, the "Parties").
RECITALS
WHEREAS, AOL provides interactive services, Web content, Internet
technologies and e-commerce services to its users, and OmniSky provides a
comprehensive wireless service for users of handheld mobile devices;
WHEREAS, AOL desires to make available certain of its interactive
services, Web content (e.g., the AOL Content), Internet technologies and
e-commerce services (e.g., the AOL Properties) to users of handheld mobile
devices, and OmniSky desires to provide AOL with the facilities to make such
services available through wireless services operated by OmniSky (e.g., the
OmniSky Service and the Customized Service); and
WHEREAS, AOL and OmniSky desire to set forth in this Agreement
the terms and conditions under which they intend to work together to deliver AOL
interactive services, Web content, Internet technologies and e-commerce services
to users of handheld mobile devices through the OmniSky Service and the
Customized Service.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
AGREEMENT
1. DEFINITIONS. The following terms are used in this Agreement
with the respective meanings set forth below:
"ABOVE-THE-FOLD" means that portion of any page within the
OmniSky UI or the Customized UI that Users view on a Device upon first
presentation without having to scroll.
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"AIM SERVICE" means the U.S. version of the AOL Instant
Messenger(TM) brand service.
"AOL BRAND FEATURES" means the trademarks, service marks, logos
and other distinctive brand features of AOL identified on Exhibit A hereto.
"AOL COMPETITOR" means an entity offering one or more of the
following: (i) online or Internet connectivity services (e.g., an online service
or Internet service provider); (ii) an interactive site or service featuring a
broad selection of aggregated third party interactive content (or navigation
thereto) covering a broad range of subjects and targeted at a broad audience
(e.g., a search and directory service or portal)and/or marketing a broad
selection of products and/or services across numerous "vertical" interactive
commerce categories (e.g., an online mall or multiple-category e-commerce site);
or (iii) communications software capable of serving as the principal means
through which a user creates, sends or receives electronic mail or real time
online messages.
"AOL CONTENT" means all data, information, and other content
provided by AOL to Users, as designated by AOL in its sole discretion from time
to time during the Term, including, but not limited to, data, information and
other content provided to Users using AOL Properties or AOL Instant Messenger.
"AOL LINKS" means the AOL-related URLs designated by AOL from
time to time during the Term to which OmniSky provides hyperlinks on the OmniSky
Service and/or the Customized Service under the terms of this Agreement which
point to the AOL Software, the AOL Content and/or the AOL Properties, as
applicable.
"AOL MAIL" means AOL's proprietary email software application in
object form only for the applicable wireless Devices, that is licensed to
OmniSky pursuant to Section 3(a)(ii) hereof.
"AOL MEMBER" means any authorized user of the AOL Property(s).
"AOL INSTANT MESSENGER" means AOL's proprietary messaging
software application in object form only for the applicable wireless Devices
that is licensed to OmniSky pursuant to Section 3(a)(ii) hereof.
"AOL NAMESPACE" means the AOL database of users of the AIM
Service and their screen names, and the components, algorithms, and server
complex used by AOL to implement and support the AIM Service.
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"AOL PROPERTY" means any service, or site on the World Wide Web,
maintained and/or operated by AOL and any functionality contained thereon (e.g.,
AIM Service, AOL Classic (as defined below), AOL.com).
"AOL SOFTWARE" means AOL Mail, AOL Instant Messenger, ICQ Clients
and/or any other AOL client software designated by AOL from time to time during
the Term for use with the OmniSky Service and/or the Customized Service.
"AOL SUBSCRIBER" means any person who is a subscriber of any AOL
Property (e.g., the America Online brand service ("AOL CLASSIC"), AOLTV service,
etc.).
"AOL USER DATA" means all data provided to AOL by Users who
register with AOL, including screen name and password, to the extent collected
as part of, or necessary for, access to or use of AOL Properties or AOL Content.
"BOUNTY" has the meaning set forth in Exhibit E attached hereto.
"CHANNEL" means a screen within the OmniSky UI or the Customized
UI that Users view by clicking on a link appearing on the top-level screen of
the OmniSky UI or the Customized UI.
"CO-BRANDED SERVICE" means an AOL-branded version of the OmniSky
Service that, in connection with the Definitive Documentation, may be jointly
developed by AOL and OmniSky .
"CUSTOMIZED SERVICE" has the meaning set forth in Section 2(c)
hereof.
"CUSTOMIZED UI" has the meaning set forth in Section 2(c) hereof.
"DEVICE" means any handheld mobile device (i) commercially
supported by OmniSky that accesses the OmniSky Service at any point during the
Term, (ii) that is designated by AOL for inclusion within this Agreement, and
(iii) to which AOL provides the corresponding AOL Software to OmniSky, where
applicable, in accordance with the terms and conditions of this Agreement. As of
the Effective Date, the Palm V and Palm Vx handheld mobile devices are
designated as Devices.
"ICQ CLIENTS" means AOL's proprietary Internet contact software
tool for the applicable wireless Devices in object form only that is licensed to
OmniSky pursuant to Section 3a(ii) hereof.
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"ICQ NAMESPACE" means the ICQ database of users of the ICQ
Service and their screen names, and the components, algorithms, and server
complex used by ICQ to implement and support the ICQ Service.
"ICQ SERVICE" means the U.S. version of the ICQ(TM) brand
service.
"LAUNCH" means the date on which AOL Content and AOL Properties
are first made commercially available to the public through the OmniSky Service
and the Customized Service.
"OMNISKY INSTALLER" means the software that installs the OmniSky
Service and/or the Customized Service on any Device.
"OMNISKY SERVICE" means the OmniSky-branded wireless services
offered during the Term for use on Devices, which enables Users to access and
navigate the Internet, send and receive e-mail messages and securely conduct
e-commerce transactions; provided, that the OmniSky Service shall not include
any customized service (in a manner substantially similar to the Customized
Service), OmniSky's co-branded service provided in connection with its agreement
existing on the Effective Date with Hewlett Packard, or private label versions
of OmniSky's wireless service which may be developed from time to time in
conjunction with third parties other than AOL.
"OMNISKY SUBSCRIBER" means any person who is a subscriber of the
OmniSky Service or the Customized Service.
"OMNISKY UI" means the OmniSky-branded user interface designed
for use with Devices, and any updates, upgrades, modifications, or successor
programs thereto; provided that, the OmniSky UI shall not include any customized
(in a manner substantially similar to the Customized UI), OmniSky's co-branded
service provided in connection with its agreement existing on the Effective Date
with Hewlett Packard, or private label versions of OmniSky's user interface
which may be developed from time to time in conjunction with third parties other
than AOL.
"SUB-CHANNEL" means a screen within the OmniSky UI or the
Customized UI that Users view by clicking on a link that appears on a Channel.
"USER" means any authorized user of the OmniSky Service or the
Customized Service.
2. THE SERVICES.
(a) COMMERCIAL LAUNCH. Subject to the satisfactory completion by
each of AOL and OmniSky of the quality assurance procedures to be set forth by
AOL in Exhibit H,
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AOL and OmniSky shall each use their commercially reasonable efforts to complete
the Launch on or about March 1, 2001, but in no event later than June 1, 2001.
(b) OMNISKY SERVICE. No fewer than sixty (60)days prior to the
Launch, subject to the terms and conditions of this Agreement, AOL shall provide
OmniSky with the AOL Links. In connection with the Launch, OmniSky and AOL shall
provide OmniSky Subscribers with the OmniSky UI that contains the features and
functionality set forth on Exhibit C; the location and content of those portions
of such OmniSky UI that contain such AOL Links, or any other AOL Content, shall
be subject to AOL's prior written consent, which shall not be unreasonably
withheld. OmniSky shall ensure that the AOL Links shall receive comparable
placement, appearance, and prominence in connection with any changes to the
OmniSky Service.
(c) CUSTOMIZED SERVICE. On and after the Launch, throughout the
Term, OmniSky shall provide all users of the OmniSky Installer with the option
(the "Customization Option") through a splash screen (the form and content of
which shall be determined by AOL in its sole discretion, subject to technical
limitations) (the "SPLASH SCREEN") to employ a user interface for the OmniSky
Service that has been customized by OmniSky for AOL (the "Customized UI"). The
software and functionality necessary for the Customization Option shall be
contained on the OmniSky Installer shipped on or after the Launch, throughout
the Term. In addition, on and after the Launch, throughout the Term, OmniSky
will provide and promote on its website a downloadable software update that
contains the software and functionality necessary to provide Users with the
Customization Option. On and after the Launch, throughout the Term, OmniSky will
also provide the software updates referred to in the preceding sentence to AOL,
at no cost to AOL, for distribution by AOL, in its sole discretion, through the
AOL Properties. The Customized UI shall incorporate the features and
functionalities set forth on Exhibit D and shall be developed by OmniSky (the
"Customized Service"), subject to AOL's prior written consent. Without limiting
the foregoing, any material changes to the Customized UI (including, without
limitation, any changes to the number, placement, or prominence of the primary
links, features and/or functionalities) shall be subject to AOL's prior written
consent. OmniSky shall perform all development work necessary in connection with
such software update(s), Customized Service and Customized UI at no cost
whatsoever to AOL, and AOL shall reasonably cooperate with OmniSky in connection
therewith. Without limiting the foregoing, Omnisky shall ensure that no splash
screens, solicitations or offers for third party customized services shall
appear on the OmniSky Installer until and unless such user has first
affirmatively opted out of receiving the Customized UI in the Splash Screen.
OmniSky acknowledges that the Customized Service will only be useable by AOL
Subscribers or registered users of other AOL Properties (as determined by AOL in
its sole discretion), subject to terms and conditions (e.g., end-user agreement)
designated by AOL, which agreement shall be subject to OmniSky's prior written
consent, which shall not be unreasonably withheld.
(d) LINKS. Unless and until changed by AOL in its sole discretion
in accordance with the terms of this Agreement, the AOL Links used with the
OmniSky Service or
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the Customized Service pursuant to this Agreement shall include only those
hyperlinks to be provided by AOL after the Effective Date and incorporated as
part of Exhibit A; provided that AOL shall determine at all times the
destination page or other AOL Content areas to which such AOL Links point. The
Parties shall mutually agree on any necessary processes to effect all such
changes designated by AOL. Without limiting the foregoing, OmniSky shall not
provide any links other than the AOL Links to any AOL Software, AOL Properties
or AOL Content in any manner whatsoever.
(e) ADDITIONAL FEATURES AND FUNCTIONALITIES. AOL and OmniSky
shall, in good faith, after the date hereof, enter into discussions with respect
to additional features and functionalities that may be introduced to the OmniSky
Service or the Customized Service, including, without limitation, wireless
synchronization and advanced forms of notification and location-based services;
provided, however, that the terms and conditions of any such features or
functionalities, and the costs and expenses related to the development of such
features or functionalities, shall be mutually agreed upon by AOL and OmniSky
and neither Party shall have any obligation to effect any such changes unless
and until mutual agreement on the terms and conditions thereof has been reached.
In the event, however, that OmniSky, independent of its obligations under this
Agreement, develops and markets any new features and functionalities (including,
without limitation, devices and/or networks) for the OmniSky Service (including
any of the aforementioned new features or functionalities), (i) OmniSky will use
commercially reasonable efforts (and in connection therewith will ask third
parties in good faith for waiver of any applicable non-disclosure agreements
necessary) to provide AOL with (A) no less than 90 days advance notice of the
commercial release date of any and all features and/or functionalities to the
OmniSky Service, and OmniSky shall provide as much advance notice as is
reasonably practicable under the circumstances and (B) a regularly updated
schedule of such commercial release dates, subject to the aforementioned
limitations and (ii) OmniSky shall make such features and functionalities
available to AOL as early as and on terms and conditions, taken as a whole, that
are no less favorable than those offered to any third party; provided, however,
that with respect to any such new devices or networks, OmniSky shall offer such
devices or networks to AOL pursuant to the terms and conditions of this
Agreement if such terms are more favorable than those offered to any third
party. Notwithstanding the foregoing, AOL shall retain the right at all times to
decide, in its sole discretion, whether to include such devices or networks
within the scope of this Agreement, and shall have no obligation whatsoever to
so include such devices or networks.
3. LICENSING. Subject to the terms and conditions of this
Agreement, the Parties hereto grant each other the following licenses:
(a) AOL INTELLECTUAL PROPERTY.
(i) AOL BRAND FEATURES. Subject to compliance with AOL's
intellectual property usage guidelines set forth on Exhibit A, and the
provisions of Section 6(a), AOL hereby grants to OmniSky a non-exclusive,
non-transferable, royalty-free license to use,
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reproduce, and display the AOL Brand Features, within the United States, solely
as part of the OmniSky Service, the Customized Service and/or in connection with
OmniSky's marketing and promotional obligations expressly set forth in this
Agreement.
(ii) AOL SOFTWARE. Subject to compliance with AOL's
intellectual property usage guidelines set forth on Exhibit A, AOL hereby grants
to OmniSky a non-exclusive, non-transferable, royalty-free license to reproduce
and distribute to Users in the United States AOL Software only to the extent
that such AOL Software is being bundled with the OmniSky Installer or made
available to Users on the OmniSky Web site, and only as expressly set forth in
this Agreement.
(iii) AOL LINKS. AOL hereby grants to OmniSky a
non-exclusive, non-transferable, royalty-free license to use, reproduce, display
and transmit the AOL Links, solely as contemplated by this Agreement, and in all
cases subject to AOL's prior written consent.
(iv) SUSPENSION OR TERMINATION RIGHT. Notwithstanding
Section 10(b), AOL may, upon forty-eight (48) hours prior written notice,
suspend or terminate (to the extent technically feasible) OmniSky's right to
display or distribute any AOL Software, AOL Content, AOL Brand Features or AOL
Links if: (1) AOL reasonably determines in good faith that OmniSky has misused
or misappropriated the AOL Brand Features; (2) the OmniSky Service or Customized
Service is not reasonably satisfactory to AOL, including without limitation in
connection with an uncured material breach of the service level agreements
described in Section 6(d),or (3) AOL reasonably determines that the OmniSky
Service or Customized Service is materially detrimental to AOL's brand and, in
each such case, AOL provides to OmniSky written notice setting forth the basis
for any such suspension or termination. AOL shall decide in its sole discretion
when and if to restore the AOL Software, AOL Content, AOL Brand Features and/or
AOL Links, as applicable. Without limiting the foregoing, AOL shall have the
right to terminate this Agreement upon notice to OmniSky in the event of more
than one violation of this Section 3(a)(iv) during the Term (in the aggregate)
by OmniSky.
(b) OMNISKY INTELLECTUAL PROPERTY. Subject to compliance with
OmniSky's intellectual property usage guidelines set forth on Exhibit B, OmniSky
hereby grants to AOL a non-exclusive, non-transferable, royalty-free license to
use, reproduce, distribute and display the trademarks, service marks, logos and
other distinctive brand features of OmniSky identified on Exhibit B hereto (the
"OmniSky Brand Features"), within the United States, in connection with AOL's
marketing and promotional efforts related to this Agreement. Notwithstanding
Section 10(b), OmniSky may suspend or terminate AOL's right to use, reproduce,
distribute or display the OmniSky Brand Features offline if OmniSky reasonably
determines in good faith that AOL has misused or misappropriated the OmniSky
Brand Features; provided that the foregoing shall not apply to any online
promotion, distribution or display of the OmniSky Brand Features, which shall be
subject to the terms and conditions set forth in the Carriage Agreement (as
defined in
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Section 16). Without limiting the foregoing, OmniSky shall have the right to
terminate this Agreement upon notice to AOL in the event of more than one
violation of this Section 3(b) during the Term (in the aggregate) by AOL.
(c) COMPLIANCE WITH GUIDELINES AND LAWS. Each of the Parties
hereto agrees that the nature and the quality of its products and services
supplied in connection with the other Party's trademarks, service marks, logos
and other distinctive brand features (collectively, the "Marks") shall conform
to reasonable quality standards communicated in writing by the other Party for
use of its Marks. Each of such Parties further agrees to supply the other Party,
upon request, with a reasonable number of samples of any materials publicly
disseminated by such Party which utilize the other Party's Marks. Each of such
Parties shall also comply with all applicable laws, regulations and customs and
obtain any required government approvals pertaining to use of the other Party's
Marks.
(d) INFRINGEMENT PROCEEDINGS. Each of the Parties hereto agrees
to promptly notify the other Party of any unauthorized use of the other Party's
Marks of which it has actual knowledge. Such other Party shall have the sole
right and discretion to bring proceedings alleging infringement of its Marks or
unfair competition related thereto, with the reasonable cooperation of the Party
providing notification.
4. OWNERSHIP.
(a) OMNISKY INTELLECTUAL PROPERTY. AOL acknowledges and agrees
that, except as provided in Section 4(b) below, (i) as between AOL and OmniSky,
OmniSky owns all right, title and interest in the OmniSky Brand Features,
OmniSky Service, Customized Service, OmniSky UI and Customized UI, including
without limitation the source code and the "look and feel" and (ii) nothing in
this Agreement will confer in AOL any right of ownership in the OmniSky Brand
Features, OmniSky Service, Customized Service, OmniSky UI or Customized UI.
(b) AOL INTELLECTUAL PROPERTY. OmniSky acknowledges and agrees
that as between OmniSky and AOL, AOL owns all right, title and interest in the
AOL Brand Features, AOL Properties, AOL Links, AOL Content and AOL Software.
Except as set forth in this Agreement, nothing in this Agreement will confer in
OmniSky any license or right of ownership in the AOL Brand Features, AOL
Properties, AOL Content and AOL Software. OmniSky further acknowledges and
agrees that AOL shall own the user icons for AOL Mail, AOL Instant Messenger and
AOL Content and services, including, without limitation, the source code and the
"look and feel" of such AOL Software, AOL Content and AOL Properties. OmniSky
agrees to share from time to time comments received by OmniSky from Users, if
any, regarding AOL Mail, AOL Instant Messenger and AOL Content.
(c) RESERVATION OF RIGHTS. All rights not expressly granted
herein are reserved to the Party that owns the software, trademarks and other
materials licensed. Neither
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Party will remove, modify or obliterate any copyright or other proprietary
rights notices from any copies, in whole or in part, of the materials licensed.
(d) DISTRIBUTION. OmniSky may distribute the AOL Software only to
Users, or provide as part of a bundled service to hardware OEMs, or retail
resellers and only in combination with the OmniSky Installer and/or the
downloadable software, or any upgrades, modifications or other supplements
thereto, solely in connection with the AOL Links, as expressly authorized under
this Agreement. In connection therewith, OmniSky shall distribute and sublicense
the AOL Software pursuant to AOL's then current standard form of shrink-wrap
license agreement. Without limiting the foregoing, (i) any and all such OEMs
shall be required to agree to AOL's standard software license agreement with
respect to such AOL Software prior to any distribution or other use of the AOL
Software by such OEMs; and (ii) all such resellers shall be expressly prohibited
from any redistribution of or modification to all AOL Software. OmniSky shall
not prepare derivative works from the AOL Software nor provide the AOL Software
to any third party whatsoever, except as expressly authorized hereunder or in
writing by AOL. Neither Party will alter, reverse-engineer, decompile or
disassemble software provided by the other Party, or otherwise attempt to
reconstruct the source code of such software, in any manner whatsoever
(including the AOL Software) without the prior written consent of the other
Party.
(i) OmniSky shall not develop, promote, integrate, or distribute any
features or functionality that enable communication between users of the AIM
Service or the ICQ Service and users of other instant messaging services on the
Devices, or any other products without AOL's express prior written consent.
Further, without limiting the foregoing, OmniSky agrees not to use the AOL
Software, or any technology contained therein, to develop technology which
allows end-users of any Devices, or any other products, to communicate with AOL
Members, or otherwise use the AOL Namespace or the ICQ Namespace.
(ii) OmniSky will not integrate, or enter into an agreement to integrate
into any of the Devices or other products developed by or on behalf of OmniSky,
or distribute, market or promote any products containing instant messaging
protocols or components that use or accesses the AOL Software (including the AIM
Service or the ICQ Service), or solicits, encourages or promotes end-users to
use or access the AOL Software, in a manner not expressly authorized by AOL or
that AOL contends in good faith is not expressly authorized. Any violation by
OmniSky of any provision of this Section 4(d) shall be deemed a material breach
of this Agreement for which AOL shall have the immediate right to terminate this
Agreement upon notice to OmniSky. Without limiting foregoing, except for the
rights expressly granted to OmniSky by AOL hereunder, AOL hereby retains all of
its rights in and to the AOL Content, AOL Links, AOL Brand Features and AOL
Software.
(e) USER DATA.
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(i) OWNERSHIP OF AOL USER DATA. AOL shall be the sole
owner of, and have all rights to, AOL User Data.
(ii) RESTRICTIONS ON "TARGETING". OmniSky will not target
or direct any advertisements, promotions, or marketing materials, to promote or
that promote an AOL Competitor, to Users based on information obtained as a
result of any Users' use of AOL Content or AOL Properties through the OmniSky
Service or Customized Service. Nothing contained in this Section 4(d)(ii),
however, shall prevent or limit AOL or OmniSky from communicating directly with
Users who use AOL Content or AOL Properties, except as set forth in this
Agreement.
(iii) NON-SOLICITATION. Without limiting and in addition
to the provisions of Sections 4(e)(i-ii) above, during the Term of this
Agreement and for the two-year period following the expiration or termination of
this Agreement, using information obtained in connection with this Agreement,
neither Omnisky nor its agents shall use or be permitted to use the AOL
Properties (including, without limitation, the e-mail network contained therein)
to solicit AOL Members when that solicitation is for the benefit of an AOL
Competitor. More generally, Omnisky will not send unsolicited, commercial e-mail
(i.e., "spam") through or into AOL's products or services, absent a Prior
Business Relationship. For purposes of this Agreement, a "PRIOR BUSINESS
RELATIONSHIP" will mean that the AOL Member to whom commercial e-mail is being
sent has voluntarily either (i) engaged in a transaction with Omnisky or (ii)
provided information to Omnisky through a contest, registration, or other
communication, which included clear notice to the AOL Member that the
information provided could result in commercial e-mail being sent to that member
by Omnisky or its agents. Any commercial e-mail to be sent through or into AOL's
products or services shall also be subject to AOL's then-standard restrictions
on distribution of bulk e-mail (e.g., related to the time and manner in which
such e-mail can be distributed through or into the AOL product or service in
question).
(iv) COLLECTION, USE AND DISCLOSURE OF MEMBER INFORMATION.
Omnisky shall ensure that its collection, use and disclosure of information
obtained from AOL Members under this Agreement ("MEMBER INFORMATION") complies
with (i) all applicable laws and regulations and (ii) AOL's standard privacy
policies, as made available to OmniSky during the Term of this Agreement.
Omnisky will not disclose Member Information collected hereunder to any third
party in a manner that identifies AOL Members as end users of an AOL product or
service or use Member Information collected under this Agreement to market an
AOL Competitor .
(v) USER RIGHTS. Users of AOL Properties and the AOL
Software on Devices will be subject to AOL's standard terms and conditions of
use and nothing contained in this Agreement shall affect or otherwise modify
those standard terms and conditions.
5. PAYMENTS AND REVENUE ALLOCATION. Any payments to a Party and
any revenue allocation between the Parties shall be distributed as set forth on
Exhibit E; provided,
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that such payments and revenue allocations shall be, taken as a whole, no less
favorable to AOL than to any third party.
6. OTHER MATTERS.
(a) PUBLICITY. Neither Party may make any public announcement
about the existence of or terms covered by this Agreement without the other
Party's prior written consent; provided, however, that this Agreement may be
filed with the Securities and Exchange Commission to the extent that counsel for
either Party determines that this Agreement is required by the rules of the
Securities and Exchange Commission to be so filed. Subject to the foregoing, AOL
may, in its sole discretion, announce the relationship set forth in this
Agreement. If a Party is required by law to make any such disclosure, it must
first provide to the other Party the content of the disclosure, the reasons that
such disclosure is required by law, and the time and place that the disclosure
will be made. Notwithstanding the foregoing, each Party shall be permitted
during the term of this Agreement, without the other Party's prior consent,
merely to list the other Party as one if its industry partners and to repeat
factual information or statements contained in any mutually agreed-upon press
release or other public statement. Each Party will submit to the other Party,
for its prior written approval, which will not be unreasonably withheld or
delayed, any marketing, advertising, and all other promotional materials related
to the transactions contemplated hereunder or using the other Party's Marks.
(b) CO-MARKETING. During the Term , OmniSky will prominently
promote, in OmniSky's online and offline advertising, the AOL Content and AOL
Properties available through the OmniSky Service and Customized Service,
subject, to the extent applicable, the provisions of any co-operative
advertising agreements or arrangements to which OmniSky may otherwise be a
party, and subject to AOL's prior written consent and applicable guidelines as
made available to OmniSky by AOL. OmniSky will not promote third party content
provider's properties more prominently or frequently than it promotes AOL
Content and AOL Properties, taking into consideration the aggregate of OmniSky's
promotional efforts. OmniSky will include AOL branding on all OmniSky retail
boxes (distributed in connection with the OmniSky Service or the Customized
Service) in a manner mutually agreed upon, and subject to AOL's prior written
consent and applicable guidelines, and, at AOL's option and expense, OmniSky
will include an AOL Classic disc, or other AOL Software designated by AOL in its
sole discretion (provided that only a single disc shall be required to be
included), within all OmniSky retail boxes (distributed in connection with the
OmniSky Service or the Customized Service), all associated documentation
provided by AOL with respect to the AOL Software, if requested by AOL in its
sole discretion.
(c) USER EXPERIENCE: Subject to the Channel and Sub-Channel
placement set forth in Exhibits C and D, AOL and OmniSky will coordinate access
to AOL Properties and AOL CONTENT and other aspects of the User experience;
provided, that AOL will maintain sole editorial control over the AOL Properties
and AOL Content and the terms of use thereof, including without limitation, the
dialogues and other information presented to the User within the
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AOL Properties and AOL Content. AOL and OmniSky will mutually agree to a process
of quality assurance and deployment of AOL Content and AOL Properties on the
OmniSky Service and the Customized Service during the term of this Agreement, to
be attached and incorporated hereto as EXHIBIT H by AOL after the Effective
Date, prior to Launch. Without limiting the foregoing, throughout the Term
OmniSky shall provide to AOL no fewer than thirty (30) devices (e.g., modems)
which access the OmniSky Service (at no charge whatsoever to AOL for such modems
or the OmniSky Service) for use by AOL development, quality assurance and
management personnel.
(d) SERVICE LEVELS. Prior to Launch, the Parties shall mutually
agree on service level agreements with respect to the activities contemplated in
this Agreement (the "SLAs"). The SLAs shall include, without limitation, the
following provisions: (i) OmniSky shall provide reasonable technical support to
AOL and its developers and contractors at no cost to AOL in connection with this
Agreement; provided that AOL shall pay OmniSky on an NRE basis (on terms no less
favorable than those provided to any third party by OmniSky) in connection with
additional customization to the Customized Service not contemplated in this
Agreement; (ii) OmniSky will reasonably support AOL's alpha and beta testing
efforts for AOL applications and content (including the AOL Content); and (iii)
OmniSky will reasonably assist AOL, using good faith efforts, with getting
service coverage extended to AOL's developers' location in Irvine, California
for the OmniSky Service and the Customized Service.
(e) REGULATORY. OmniSky, will be responsible for compliance at
all times with all applicable regulatory and other operational requirements
relating to the OmniSky Service, the Customized Service, and the wireless
network utilized in connection with delivery of the OmniSky Service and the
Customized Service.
(f) OTHER AGREEMENTS. OmniSky agrees that if OmniSky (i) offers
any third party content provider placement on the OmniSky UI (including, but not
limited to, presentation of such provider's name, icon or link) on a
higher-level or new Channel(s) or Sub-Channel(s) than AOL or (ii) customizes,
co-brands or develops a private label version of OmniSky's user interface for a
third party content provider (e.g., similar to the Customized Service), then AOL
shall, in the case of clause (i), be given the opportunity to obtain equivalent
exposure on such higher-level and/or new Channel(s) or Sub-Channel(s) or, in the
case of clause (ii), be given the opportunity to have the Customized Service
appropriately modified by OmniSky (i.e., equivalent customization, co-branding
and/or a private label service, at AOL's option), in each case upon no less
favorable terms and conditions, taken as a whole, as may be agreed to with such
other content provider; provided that, this Section 6(f) shall not apply to
contractual arrangements existing on the Effective Date between OmniSky and
third party content providers. OmniSky will in all cases market the Customized
Service at the lowest price, modem cost and with the most favorable warranty and
guarantee policies as those which apply generally to the OmniSky Service. In no
case will OmniSky charge Users a premium for use of the Customized Service
compared to the OmniSky Service.
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(g) DISTRIBUTION. On and after the Launch, during the Term,
OmniSky will bundle the AOL Software designated by AOL on CD-ROMs containing the
OmniSky Installer; such AOL Software shall be no larger than one hundred (100)
megabytes in the aggregate. During the OmniSky installation process, all Users
will be presented with a Splash Screen that asks if they wish to install AOL
Classic and AOL Instant Messenger (or other AOL Software designated by AOL), and
that provides live links, approved and/or supplied by AOL in advance, to the
applicable AOL installation pages for such AOL Software. For each new, qualified
AOL Classic subscriber acquired by OmniSky pursuant to this Section, AOL will
pay AOL's standard bounty to OmniSky, in accordance with the then standard terms
and conditions set forth at http://affiliate.aol.com/affiliate/welcome.adp.
7. REPRESENTATIONS AND WARRANTIES.
(a) OMNISKY SERVICE. OmniSky represents and warrants the OmniSky
Service and the OmniSky UI will perform in all material respects in accordance
with its applicable published specifications. OmniSky further represents and
warrants that it will be solely responsible for providing adequate User support
and maintenance for the OmniSky Service and the Customized Service; provided,
that OmniSky makes no representation or warranty with respect to the AOL
Properties, AOL Content, AOL Mail and AOL Instant Messenger.
(b) AOL. AOL represents and warrants that, as between the
Parties, it will be solely responsible for providing end-user support and
maintenance for AOL Properties, AOL Mail and AOL Instant Messenger consistent
with the support it provides for other, similar instant messaging and mail
applications for handheld devices; provided, that AOL makes no representation or
warranty with respect to the OmniSky UI, Customized UI, OmniSky Service or the
Customized Service.
(c) MUTUAL. Each Party hereto represents and warrants to the
other Party that: (i) such Party has the full corporate power and authority to
enter into this Agreement, to grant the rights and licenses granted hereunder
and to perform the acts required of it hereunder; (ii) the execution of this
Agreement by such Party and the performance by such Party of its obligations and
duties hereunder, do not violate any agreement to which such Party is a party or
by which it is otherwise bound; (iii) when executed and delivered by such Party,
this Agreement will constitute the legal, valid and binding obligation of such
Party, enforceable in accordance with its terms; and (iv) such Party
acknowledges that the other Party makes no representations, warranties or
agreements related to the subject matter hereof that are not expressly provided
for in this Agreement.
(d) DISCLAIMER.
(i) EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE
AOL PROPERTIES, AOL SOFTWARE, AND AOL CONTENT ARE PROVIDED "AS
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IS" AND AOL HEREBY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, REGARDING AOL PROPERTIES, AOL SOFTWARE, AOL BRAND FEATURES, AND AOL
CONTENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE,
NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES
ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. EXCEPT AS PROVIDED IN
THIS AGREEMENT, AOL DOES NOT MAKE ANY WARRANTY THAT THE AOL SOFTWARE, AOL
PROPERTIES AND/OR THE AOL CONTENT WILL MEET USERS' REQUIREMENTS, THAT
AVAILABILITY AND FUNCTIONALITY OF SUCH WILL BE UNINTERRUPTED, TIMELY, SECURE, OR
ERROR FREE; NOR DOES EITHER PARTY MAKE ANY WARRANTY AS TO THE RESULTS, ACCURACY,
AND RELIABILITY OF ANY INFORMATION THAT MAY BE OBTAINED FROM THE USE OF THE AOL
SOFTWARE, AOL PROPERTIES AND/OR THE AOL CONTENT. THE PARTIES ACKNOWLEDGE THAT
ANY USE OF ANY DATA OBTAINED BY USERS THROUGH THE AOL SOFTWARE, AOL PROPERTIES
AND/OR AOL CONTENT IS AT USERS' OWN DISCRETION AND RISK, AND THAT USERS WILL BE
SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM USE THEREOF AND THE PARTIES
AGREE TO NOTIFY USERS OF SAME.
(ii) EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE
OMNISKY SERVICE AND CUSTOMIZED SERVICE ARE PROVIDED "AS IS" AND OMNISKY HEREBY
DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE
OMNISKY SERVICE AND THE CUSTOMIZED SERVICE, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY, TITLE, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND
IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
EXCEPT AS PROVIDED IN THIS AGREEMENT, OMNISKY DOES NOT MAKE ANY WARRANTY THAT
THE OMNISKY SERVICE AND THE CUSTOMIZED SERVICE WILL MEET USERS' REQUIREMENTS,
THAT THE AVAILABILITY AND FUNCTIONALITY OF SUCH WILL BE UNINTERRUPTED, TIMELY,
SECURE, OR ERROR FREE; NOR DOES EITHER PARTY MAKE ANY WARRANTY AS TO THE
RESULTS, ACCURACY, AND RELIABILITY OF ANY INFORMATION THAT MAY BE OBTAINED FROM
THE USE OF THE OMNISKY SERVICE AND THE CUSTOMIZED SERVICE. THE PARTIES
ACKNOWLEDGE THAT ANY USE OF ANY DATA OBTAINED BY USERS THROUGH THE OMNISKY
SERVICE AND THE CUSTOMIZED SERVICE IS AT USERS' OWN DISCRETION AND RISK, AND
THAT USERS WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM USE THEREOF
AND THE PARTIES AGREE TO NOTIFY USERS OF SAME.
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8. INDEMNIFICATION.
(a) OmniSky. OmniSky will indemnify, defend and hold harmless AOL
and its employees, officers, directors, representatives, and agents, against any
third party claim, demands, liabilities, costs, expenses, suit, action, or other
proceeding (collectively, "LIABILITIES") brought against such parties based on
or arising from (i) a claim brought by any third party alleging that the OmniSky
Brand Features, OmniSky UI, Customized UI, OmniSky Service, Customized Service
(and/or any technology used to provide the OmniSky Service or Customized
Service) or OmniSky Installer as provided by OmniSky, infringes in any manner
any copyright, trademark, service mark, patent, trade secret, or other
intellectual property right of such party or (ii) a breach by OmniSky of the
duties, representations and warranties contained in Section 7(a).
Indemnification under this Section 8(a) shall be AOL's sole and exclusive remedy
and OmniSky's sole and exclusive liability, for any infringement referred to in
clause (i).
(b) AOL. AOL will indemnify, defend and hold harmless OmniSky and
its employees, officer, directors, representatives, and agents, against any
Liabilities based on or arising from (i) a claim brought by a third party
alleging that the AOL Brand Features, AOL Software, AOL Content owned and
operated by AOL (excluding any third party content that may be included within
the AOL Content), or the AOL Properties (excluding any third party content that
may be included therein) as provided by AOL, and in all cases solely and to the
extent accessed by Users through the OmniSky Service or the Customized Service
through the AOL Links, infringes in any manner any copyright, trademark, service
mark, patent, trade secret, or other intellectual property right of such party
or (ii) a breach by AOL of the duties, representations and warranties contained
in Section 7(b). Indemnification under this Section 8(b) shall be OmniSky's sole
and exclusive remedy, and AOL's sole and exclusive liability, for any
infringement referred to in clause (i).
(c) Conditions to Indemnification. For purposes of this Section
8, the Party obligated to provide the indemnity will be referred to as the
"Indemnitor" and the Party receiving the benefit of such indemnity will be
referred to as the "Indemnitee." The Indemnitor's obligations of indemnification
are conditioned on (i) the Indemnitee's reasonably prompt notice to Indemnitor
of any claim, (ii) the Indemnitee permitting the Indemnitor to assume and
control the defense of the action, with counsel chosen by the Indemnitor (who
must be reasonably acceptable to the Indemnitee), (iii) the Indemnitee providing
all reasonably requested information, assistance and authority to Indemnitor in
the defense of the claim, at Indemnitor's expense; and (iv) Indemnitor not
entering into any settlement or compromise of any claim without the Indemnitee's
prior written approval, not to be unreasonably withheld, conditioned or delayed.
The Indemnitor will pay any and all costs, damages and attorneys' fees awarded
against the Indemnitee, and all reasonable expenses incurred by the Indemnitee,
in connection with or arising from any such claim, suit or proceeding. If the
Parties agree to settle a third party claim, neither Party will publicize the
settlement without first obtaining the other Party's written permission, which
permission will not be unreasonably withheld, conditioned or delayed.
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<PAGE> 16
(d) Separate Counsel. Notwithstanding the foregoing, either Party
shall have the right, at its own expense, to employ separate counsel and
participate in the defense of any claim or action arising under this Section 8.
9. LIMITATION OF LIABILITY.
EXCEPT WITH RESPECT TO INDEMNIFICATION FOR AMOUNTS PAYABLE TO A THIRD
PARTY ARISING UNDER THE INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 OR LIABILITY
FOR BREACH OF SECTION 14, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO
THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY
DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF THAT PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, SUCH AS, BUT NOT LIMITED TO,
LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.
EXCEPT FOR LIABILITY ARISING IN CONNECTION WITH THIRD PARTY CLAIMS UNDER
THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8 OR LIABILITY FOR BREACH
OF SECTION 14, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE, CUMULATIVE LIABILITY
TO THE OTHER PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED TEN
MILLION U.S. DOLLARS ($10,000,000.00 USD); PROVIDED THAT THE FOREGOING LIABILITY
CAP SHALL EQUAL TWENTY-FIVE MILLION DOLLARS ($25,000,000.00) WITH RESPECT TO
OMNISKY'S LIABILITY TO AOL IN CONNECTION WITH THE CO-BRANDED SERVICE. THE
EXISTENCE OF ONE OR MORE CLAIMS OR SUITS SHALL NOT ENLARGE THE LIMIT. EACH PARTY
ACKNOWLEDGES THAT THE MUTUAL PROMISES CONTAINED HEREIN REFLECT THE ALLOCATION OF
RISK SET FORTH IN THIS AGREEMENT AND THAT EACH PARTY WOULD NOT ENTER INTO THIS
AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY.
10. TERM AND TERMINATION.
(a) TERM. This Agreement commences on the Effective Date and
will, unless sooner terminated as provided below or as otherwise agreed, remain
effective for three (3) years. The term shall automatically renew upon
expiration for two additional one (1) year terms, unless AOL provides OmniSky
with written notice of its intent to terminate within 30 days of expiration of
the initial term of this Agreement or any subsequent renewal term; provided,
however, that if AOL has not elected to offer the Co-Branded Service, as
referred to in Section 15, on or prior to the sixtieth day preceding the third
anniversary of the Effective Date, then, in such event, either Party may elect
not to renew this Agreement upon 30 days prior written notice to the other
Party. (The initial term, together with any renewal terms, collectively, the
"TERM".)
(b) TERMINATION. This Agreement may be terminated by either Party
immediately upon receipt of notice if the other Party: (i) becomes insolvent;
(ii) files a petition in
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<PAGE> 17
bankruptcy; (iii) makes an assignment for the benefit of its creditors; (iv)
breaches any of its obligations under this Agreement in any material respect,
which breach is not cured within thirty (30) days following receipt of written
notice by such Party (except that the foregoing 30 day cure period does not
apply to a termination of the Agreement pursuant to Section 3(a)(iv)); or (v)
breaches any of its material obligations set forth in the SLAs, and fails to
cure such breach(s) in accordance with the cure periods set forth in the SLAs.
(c) EFFECT OF TERMINATION. The provisions of Sections 1, 3, 4(d),
4(e)(iii), 6(a), 6(e), 7, 8, 9, 10(c), 10(d), 11, 12, 14, and 18 of the main
body of the Agreement, and Section 2(e) of Exhibit E, will survive any
termination or expiration of this Agreement. Upon a termination or expiration of
this Agreement, each of OmniSky and AOL agree to immediately cease using,
displaying, reproducing or distributing the AOL Brand Features, AOL Content, AOL
Software, AOL Properties (in the case of OmniSky, except as required in the
transition period described in Section 10(d) below), or the OmniSky Brand
Features (in the case of AOL); provided, however, that AOL understands that
OmniSky will not be able to recover installer disks that have been distributed
on or prior to the date of termination and that AOL Brand Features that have
been installed on the Devices will continue to appear on such Devices
notwithstanding any termination of this Agreement. Additionally, upon the
expiration or termination of the Agreement, each Party will, upon the written
request of the other Party, return or destroy (at the option of the Party
receiving the request) all Confidential Information, documents, manuals and
other materials provided by the other Party.
(d) CONTINUATION OF OMNISKY SERVICE UPON EXPIRATION. Upon the
expiration or termination, of the initial term or a renewal term of this
Agreement, OmniSky shall continue, at AOL's option, to provide OmniSky Service
and/or Customized Service, as the case may be, to Users pursuant to the terms of
this Agreement for a period of time at least equal to (i) 12 months, in the
event that the aggregate number of subscribers to the Customized Service and the
Co-Branded Service is less than 100,000 on the date of such expiration or (ii)
24 months in all other cases. On and after the effective date of any termination
or expiration of this Agreement, OmniSky shall be entitled, subject to the usage
guidelines for Marks (i.e., AOL Brand Features) set forth in this Agreement, to
reposition or otherwise modify slotting arrangements for AOL Properties or AOL
Content with respect solely to the OmniSky Service (but not the Customized
Service), beginning twelve (12) months after the effective date of such
termination of the Agreement, and in any event, at any time after the conclusion
of any applicable transition period pursuant to this Section 10(d).
11. EXPENSES. Unless otherwise expressly agreed by the Parties in
writing, each Party shall bear its own costs and expenses in performing its
obligations under this Agreement.
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<PAGE> 18
12. NOTICES. All notices, requests and other communications
called for by this Agreement will be deemed to have been given as of the day
they are received either by messenger, or delivery service, or deposited in the
United States of America mails, postage prepaid, certified or registered, return
receipt requested, and addressed to the address set forth on the signature page
hereto, or to such other addresses as either Party may specify to the other from
time to time. Notice by any other means will be deemed made when actually
received by the Party to which notice is provided.
13. CHANGE OF CONTROL. AOL shall have the right to terminate this
Agreement, without liability, at any time within 180 days after consummation of
an OmniSky Change of Control. In the event of any termination of this Agreement
pursuant to this Section 13, OmniSky shall pay to AOL (i) $5 million if AOL has
not provided OmniSky with notice of its election that it seeks to receive the
Co-Branded Service (the "CO-BRANDED ELECTION") on or prior to the date of such
termination or (ii) $15 million if AOL has provided Omnisky notice of such
Co-Branded Election on or prior to the date of such termination, in each case,
within ten days after the effective date of any such termination. For purposes
of this Section 13, a "Change of Control" shall mean (a) The consummation of a
reorganization, merger or consolidation or sale or other disposition of
substantially all of the assets of a party in which OmniSky is not the surviving
entity or a transaction in which the holders of a majority of the outstanding
stock of such Party prior to such merger or consolidation are not the holders of
a majority of the outstanding stock after such merger or consolidation, or (b)
the acquisition by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended)
of beneficial ownership (within the meaning of Rule 13d-3 promulgated under such
Act) of, in the aggregate, more than 50% of either (i) the then outstanding
shares of common stock of such Party; or (ii) the combined voting power of the
then outstanding voting securities of such Party entitled to vote generally in
the election of directors.
14. CONFIDENTIALITY.
(a) CONFIDENTIAL INFORMATION. "Confidential Information" of a
Party means any information, in which such Party has rights, disclosed by that
Party to the other pursuant to this Agreement which is in written, graphic,
machine readable or other tangible form and is either marked "Confidential,"
"Proprietary" or in some other manner to indicate its confidential nature, or
under the circumstances surrounding its disclosure, ought to be treated by the
receiving Party as confidential. Each Party shall treat as confidential all
Confidential Information of the other Party, shall not use such Confidential
Information except as set forth herein, and may disclose Confidential
Information only to its employees or consultants on a need-to-know basis (who
shall be subject to the provisions of Sections 14(a)-(c)). Without limiting the
foregoing, each of the Parties shall use at least the same degree of care which
it uses to prevent the disclosure of its own confidential information of like
importance to prevent the disclosure of Confidential Information disclosed to it
by the other Party under this Agreement.
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(b) EXCEPTIONS. Notwithstanding the above, neither Party shall
have liability to the other with regard to any Confidential Information of the
other which (a) was in the public domain at the time it was disclosed or has
entered the public domain through no fault of the receiving Party; (b) was known
to the receiving Party, without restriction, at the time of disclosure; (c) is
disclosed with the prior written approval of the disclosing Party; (d) was
independently developed by the receiving Party without any use of the
Confidential Information; or (e) became known to the receiving Party, without
restriction, from a source other than the disclosing Party, without breach of
this Agreement by the receiving Party and otherwise not in violation of the
disclosing Party's rights.
(c) ADDITIONAL OBLIGATIONS. The receiving Party shall: (i)
refrain from disclosing any Confidential Information of the disclosing Party to
third parties for three (3) years following the date it receives such
Confidential Information, except as expressly provided in this Section 14; (ii)
take reasonable security precautions, at least as great as the precautions it
takes to protect its own confidential information of a similar nature, but no
less than reasonable care, to keep confidential the Confidential Information of
the disclosing Party; (iii) disclose, reproduce, and/or summarize and distribute
Confidential Information of the disclosing Party only in pursuance of its
business relationship with the disclosing Party as expressly provided hereunder;
and (iv) refrain from reverse engineering, decompiling or disassembling any
software code and/or pre-release hardware devices disclosed by the disclosing
Party under the terms of this Agreement.
(d) GOVERNMENTAL ORDERS. A Party may disclose the Confidential
Information of the other Party to the extent required by the order or
requirement of a court, administrative agency, or other governmental body;
provided, however, that the receiving Party shall provide prompt notice thereof
to the disclosing Party to enable the disclosing Party to seek a protective
order or otherwise prevent or restrict such disclosure.
(e) This Section intentionally left blank.
15. CO-BRANDED SERVICES. AOL may elect to offer a Co-Branded
Service, and AOL and OmniSky agree, in such event, to negotiate in good faith
definitive agreements and documentation, reasonably satisfactory to both Parties
(with the goal of entering into such agreements and documentation within thirty
(30) days after the date of AOL's election), providing for the development and
implementation of the Co-Branded Service (the "DEFINITIVE DOCUMENTATION"). AOL
and OmniSky agree that such Definitive Documentation shall have substantially
the terms and conditions set forth on Exhibit F; Sections 1, 3, 4(d)(i-ii),
4(e), 6(a), 6(e), 7, 8, 9, 10, 11, 12, 13, 14, 18 of this Agreement shall
additionally apply to the Co-Branded Service.
16. AOL MARKETING OF OMNISKY SERVICE. During the Term , OmniSky
agrees to purchase from AOL an aggregate of three million dollars
($3,000,000.00) of online advertising on certain AOL Properties, subject to
AOL's customary terms and conditions
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reasonably satisfactory to OmniSky, and in connection therewith, the Parties
shall mutually agree on two carriage plans with respect to such advertising
(each, a "CARRIAGE PLAN, and collectively, the "CARRIAGE PLANS"). The Parties
shall mutually agree on the first Carriage Plan within thirty (30) days of the
Effective Date with respect to the advertising to be run on the applicable AOL
Properties within the first six months after the Effective Date (the "SIX MONTH
PERIOD") (OmniSky shall not unreasonably withhold its consent with respect to
the Carriage Plans). The Parties shall mutually agree on the second Carriage
Plan within one hundred twenty (120) days after the Effective Date with respect
to the advertising to appear on the applicable AOL Properties during the
eighteen (18) months after the Six Month Period. OmniSky shall pay AOL One
Million Five Hundred Thousand Dollars ($1,500,000.00) within thirty (30) days of
the Effective Date, and an additional payment of One Million Five Hundred
Thousand Dollars ($1,500,000.00) within one hundred twenty (120) days of the
Effective Date, in exchange for such advertising. At AOL's election, OmniSky
will purchase $1.5 million of such online advertising during the first two full
calendar quarters after the Effective Date (i.e., with the advertising to run on
the applicable AOL Properties within the first two such calendar quarters after
the Effective Date) and the remaining $1.5 million of such online advertising
over the next eighteen (18) months after the Six Month Period, to be distributed
evenly on a quarterly basis. OmniSky may purchase such online advertising on any
or all of the AOL Properties listed on Exhibit G or, upon mutual agreement,
other AOL Properties not set forth on Exhibit G. The Parties acknowledge that
any such advertising running at or after Launch will be used to promote the
Customized Service or the availability of the AOL Properties on the OmniSky
Service; all advertising copy and content in connection therewith shall be
subject to AOL's prior written approval (which shall not be unreasonably
withheld).
17. This Section intentionally left blank.
18. MISCELLANEOUS.
(a) INDEPENDENT CONTRACTORS. AOL and OmniSky are independent
contractors and nothing contained in this Agreement is intended or shall be
construed as creating a relationship of principal and agent, employer and
employee, partnership, franchise, or joint venture between the Parties.
(b) AMENDMENTS. This Agreement shall constitute the binding
agreement of the Parties. This Agreement may not be changed or amended except in
writing dated subsequent to the Effective Date and signed by authorized
representatives of both Parties.
(c) NO WAIVER. No failure or delay on the part of either Party in
the exercise of any right, power or remedy under this Agreement or under law, or
to insist upon or enforce performance by the other Party of any of the
provisions of this Agreement or under law, shall operate as a waiver thereof,
nor shall any single or partial exercise of any right, power or remedy preclude
other or further exercise thereof, or the exercise of any other right, power or
remedy; rather the provision, right, or remedy shall be and remain in full force
and effect.
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(d) ASSIGNMENT. Neither Party shall assign the Agreement or any
right, interest or benefit under the Agreement without the prior written consent
of the other Party, not to be unreasonably withheld. Subject to the foregoing,
the Agreement will be fully binding upon, inure to the benefit of and be
enforceable by the Parties hereto and their respective successors and assigns.
Notwithstanding the foregoing, and without securing such consent, AOL shall have
the right to assign this Agreement and the obligations hereunder to any
successor of AOL by way of merger, consolidation or the acquisition of all or
substantially all of the business and assets of AOL relating to this Agreement,
including, without limitation, in connection with AOL's merger with Time Warner,
Inc.
(e) SEVERABILITY. If for any reason a court of competent
jurisdiction finds any provision of this Agreement or portion thereof to be
unenforceable, that provision will be enforced to the maximum extent permissible
so as to effect the intent of the Parties and the remainder of this Agreement
will continue in full force and effect. This Agreement has been negotiated by
the Parties and their respective counsel, and will be interpreted fairly in
accordance with its terms and without any strict construction in favor of or
against either Party.
(f) GOVERNING LAW. The Agreement will be interpreted, construed
and enforced in all respects in accordance with the laws of the Commonwealth of
Virginia except for its conflicts of laws principles.
(g) TAXES. Each Party shall pay, and be responsible for, any and
all sales taxes, use taxes and any other taxes duly imposed on such Party by any
jurisdiction as a result of: (a) the entry into this Agreement; (b) the
performance of any of the provisions of this Agreement; or (c) the transfer of
any property, rights or any other grant hereunder.
(h) EXCUSE. Neither of the Parties hereto will be liable for, or
be considered in breach of or default under this Agreement on account of, any
delay or failure to perform as required by this Agreement as a result of strike,
fire, explosion, flood, storm, material shortages, riot, insurrection,
governmental acts, labor conditions, acts of God, war, earthquake or any other
cause which is beyond the reasonable control of such Party; provided that the
nonperforming Party gives reasonably prompt notice under the circumstances of
such condition(s) to the other Party.
(i) FURTHER ASSURANCES. Each of the Parties hereto will take such
action (including, but not limited to, the execution, acknowledgment and
delivery of documents) as may reasonably be requested by the other Party for the
implementation or continuing performance of this Agreement.
(j) EXPORT CONTROLS. Each of the Parties hereto will adhere to
all applicable laws, regulations and rules relating to the export of technical
data and will not export or re-export any technical data, any products received
from the other Party or the direct product of such
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technical data to any proscribed country listed in such applicable laws,
regulations and rules unless properly authorized.
(k) HEADINGS. The captions and headings used in this Agreement
are inserted for convenience only and will not affect the meaning or
interpretation of this Agreement.
(l) COUNTERPARTS; FACSIMILE. This Agreement may be executed in
counterparts and by facsimile, each of which counterparts will be deemed an
original and all of which together will constitute one and the same document.
(m) ENTIRE AGREEMENT. This Agreement, including the Exhibits
hereto and any service level agreements executed after the Effective Date,
constitutes the entire understanding and agreement of the Parties hereto with
respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements or understandings between the Parties.
(n) INJUNCTIVE RELIEF; REMEDIES. Each Party acknowledges a
violation of this Agreement could cause irreparable harm to the other Party for
which monetary damages may be difficult to ascertain or an inadequate remedy.
Each Party therefore agrees that the other Party will have the right, in
addition to its other rights and remedies, to seek and obtain injunctive relief
for any violation by the other Party of such sections. Except where otherwise
specified, the rights and remedies granted to a Party under the Agreement are
cumulative and in addition to, and not in lieu of, any other rights or remedies
which the Party may possess at law or in equity.
(o) This Section intentionally left blank.
(p) EXPANSION OF TERRITORY. The Parties acknowledge that the
Agreement shall apply to services (e.g., the OmniSky Service, Customized
Service) provisioned by OmniSky within the United States of America (the
"TERRITORY"), and any other services similar to the OmniSky Service outside the
Territory provided by OmniSky. With respect to similar services provided by
entities related to OmniSky outside the Territory, the Parties shall discuss in
good faith the extension of this Agreement to such areas and services.
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IN WITNESS WHEREOF, the Parties hereto have entered into this Agreement
as of the date first set forth above.
OMNISKY CORPORATION
By: /s/ Michael D. Dolbec
--------------------------------------
Name: Michael D. Dolbec
Title: Senior Vice President,
Business Development
Address for Notices
OmniSky Corporation
Attention: General Counsel
1001 Elwell Court
Palo Alto, California 94303
Fax: (650) 962-4504
AMERICA ONLINE, INC.
By: /s/ David M. Colburn
--------------------------------------
Name: David M. Colburn
Title: President of Business Affairs
-23-
<PAGE> 24
EXHIBIT A
AOL INTELLECTUAL PROPERTY
1. AOL Brand Features:
"America Online(R)" brand service
"AOL(R)" service/software
AOL's triangle logo
"AOL Instant Messenger"(SM) brand service
AIM(SM) Service logo
"CompuServe(R)" service/software and logo
"ICQ(SM)"
ICQ's flower logo
2. AOL Intellectual Property Usage Guidelines
[TO BE MADE AVAILABLE BY AOL PRIOR TO LAUNCH]
3. AOL Links
[TO BE PROVIDED BY AOL PURSUANT TO THE MAIN BODY OF THE
AGREEMENT]
<PAGE> 25
EXHIBIT B
OMNISKY INTELLECTUAL PROPERTY
1. OmniSky Brand Features
OmniSky(TM)
Think it. Do it.(TM)
OS logo
Minstrel V(TM) - Novatel Wireless Inc.
2. OmniSky Intellectual Property Guidelines
OS logo is trademarked but TM should not be in the logo.
The Trademark should never exceed 9 point
<PAGE> 26
EXHIBIT C
OMNISKY SERVICE
1. INSTALLATION MECHANICS FOR THE OMNISKY SERVICE. AOL Software
applications may only be accessed by users using their applicable AOL screen
names, user names and/or passwords, subject to AOL's standard terms and
conditions.
2. FEATURES AND FUNCTIONALITIES OF THE OMNISKY SERVICE. OmniSky
Subscribers will have access to the following features and functionalities:
(a) INTEGRATED APPLICATIONS. The AOL Software designated by AOL
shall be automatically installed by the OmniSky Installer such that the
applicable AOL Link(s) will be displayed alongside the icons for Palm's Address
Book and Date Book and the OmniSky icon. AOL agrees to make available to OmniSky
no later than sixty (60) days prior to Launch the Palm Resource Code, or similar
application, necessary to achieve such integration.
(b) CHANNEL PLACEMENT. Subject to AOL's approval, the AOL Links
designated by AOL shall be placed in the following slots, Channels and
Sub-Channels; provided, that, AOL may elect to place AOL Links in additional
slots in these or other Channels or Sub-Channels, as the case may be, upon terms
and conditions which, taken as a whole, are no less favorable than those offered
or provided to other third parties.
(i) In the following Channels or Sub-Channels, as the case
may be, the AOL Link shall be placed, in the slot and on or by the date
indicated:
(A) "Portals" Channel: Slot #2 on the Effective Date
(B) "Local" Channel: Slot #1 on the Effective Date
(C) "Directions" Sub-Channels: Slots #3 and #4 on the
Effective Date, upgraded to Slots #2 and #3 by April 2001
(D) "Movies" Sub-Channels: Slot #1 on the Effective Date
(E) "Communications" Channel: Slot #3 and Slot #4 on the
Effective Date, upgraded to Slot #2 and Slot #3 by May 2001
(F) "Travel: Reference" Sub-Channel: Slot #1 and Slot #3
by May 2001.
(ii) In the following Channels or Sub-Channels, as the
case may be, the applicable AOL Link shall be placed Above-the-Fold and on the
date indicated :
<PAGE> 27
(A) "Entertainment" Channel: Effective Date
(B) "Travel" Channel: Effective Date
(C) "News" Channel: April 2001
<PAGE> 28
EXHIBIT D
CUSTOMIZED SERVICE
1. Installation Mechanics for the Customized Service. Through the
Splash Screen, users of the OmniSky Installer may elect, during the installation
of the OmniSky Service, to install the Customized Service in lieu of the OmniSky
Service.
2. Features and Functionalities of the Customized Service.
(a) PRIMARY LINKS. The four links and associated bitmap icons
displayed on the left portion of the screen Above-the-Fold shall be modified, in
accordance with AOL's specifications to the AOL Links designated by AOL.
(b) E-MAIL. The AOL Software designated by AOL shall be installed
as the exclusive e-mail service to be provided on the Customized Service.
(c) INSTANT MESSENGER. The AOL Software designated by AOL shall
be installed as the exclusive instant messenger service on the Customized
Service.
(d) CHANNEL PLACEMENT. The first slot of each Channel and
Sub-Channel shall link to content and services to be designated by AOL.
(e) BOOKMARK PLACEMENT. The default bookmark menu shall include
the AOL Links designated by AOL.
(f) BRANDING. The Customized Service and the front page of the
Customized UI shall contain branding and formatting substantially similar to the
screen shot attached hereto as EXHIBIT J, subject to AOL's prior written
consent.
<PAGE> 29
EXHIBIT E
REVENUE ALLOCATIONS AND PAYMENTS
1. REVENUE ALLOCATIONS. AOL will sell all advertising (e.g.,
advertising, slotting fees, sponsorships, content placements) and mobile
commerce opportunities associated with the AOL Properties and AOL Content in
connection with the OmniSky Service and the Customized Service. All advertising,
and mobile commerce net revenues directly attributable to AOL's , mobile
commerce applications and content, directly accessed through the AOL Links on
the OmniSky Service or the Customized Service will be allocated 80% to AOL and
20% to OmniSky; provided, that, advertising and serving costs are to be paid by
AOL with respect to these properties. Notwithstanding the foregoing, OmniSky
shall receive all such revenues on a pro rata basis with respect to third party
AOL agreements involving multiple or cross platforms, or multiple AOL
Properties, in accordance with AOL's standard policies for allocating such
revenues.
2. PAYMENTS. For each new, Qualified OmniSky Subscriber that
elects to utilize the Customized Service on or after the Launch, OmniSky will
make a one-time payment to AOL (a "Bounty") according to the schedule below:
(a) Within the first 6 months of Launch:
<TABLE>
<CAPTION>
CUMULATIVE SUBS BOUNTY PER SUB
--------------- --------------
<S> <C>
0 - 25,000 $10
25,001 - 50,000 $20
50,001 - 75,000 $25
75,001 - 100,000 $30
100,000+ $40
</TABLE>
(b) Between the 6th and 12th months of Launch:
<TABLE>
<CAPTION>
CUMULATIVE SUBS BOUNTY PER SUB
--------------- --------------
<S> <C>
0 - 50,000 $10
50,001 - 75,000 $20
</TABLE>
<PAGE> 30
<TABLE>
<S> <C>
75,001 - 100,000 $25
100,001 - 150,000 $30
150,001 + $40
</TABLE>
(c) Between the 12th and 24th months of Launch:
<TABLE>
<CAPTION>
CUMULATIVE SUBS BOUNTY PER SUB
--------------- --------------
<S> <C>
0 - 100,000 $10
100,001 - 150,000 $20
150,001 - 200,000 $25
200,001 - 250,000 $30
250,000+ $40
</TABLE>
(d) Between the 24th and 36th months of Launch:
<TABLE>
<CAPTION>
CUMULATIVE SUBS BOUNTY PER SUB
--------------- --------------
<S> <C>
0 - 200,000 $10
200,001 - 300,000 $20
300,001 - 400,000 $25
400,001 - 500,000 $30
500,000+ $40
</TABLE>
(e) AOL shall additionally be entitled to receive such Bounties with
respect to any Qualified OmniSky Subscriber, as defined immediately below, who
signs up for the Customized Service during the Term of the Agreement and becomes
a Qualified OmniSky Subscriber, after the date that is 36 months after Launch.
The Bounty shall be paid, within thirty (30) days after the close of each
calendar quarter, based on the number of Qualified OmniSky Subscribers acquired
during each period. A Qualified OmniSky Subscriber will be defined as a
subscriber to the Customized Service who has remained with the Customized
Service for over 90
<PAGE> 31
days of continuous service (and, for purposes of this definition, the
"acquisition" of such subscriber shall be deemed to have occurred on such 90th
day). This subsection (e) shall survive the termination or expiration of this
Agreement.
<PAGE> 32
EXHIBIT F
PHASE II TERM SHEET
PHASE II
At AOL's option, the Parties will jointly develop and AOL will offer to
its subscribers an AOL-branded version of the OmniSky service. This AOL-Branded
version of the OmniSky service will be available upon the later of, 1) 120 days
after notification by AOL of its desire to implement the Service, and 2) 120
days after completion of Phase I.
A. SERVICE: OmniSky and AOL will jointly develop and AOL will market a
version of the OmniSky service (delivery platform and mobile device
interface) that is customized for AOL subscribers (the "Service").
The Service will initially be provisioned to Palm V's and Vx's and
will use the CDPD network in the United States, but may be expanded
to other devices and networks.
- CONTENT AND SERVICES:
o AOL will control the creation, ownership, and economics of the
content and services provided through the Service. At AOL's
discretion, OmniSky will perform the development (e.g.,
development of content templates) work to implement the user
interface and customize the channel ontology in accordance
with AOL's specifications. OmniSky agrees to customize the
following elements of the user interface for AOL:
- The brand bar located on the top of the first page of the OmniSky Classic
service
- The name and associated bitmap icons of the four service applications on the
left portion of the first page of the OmniSky Classic service
- The number of the scroll channels and sub-channels on the first page of the
OmniSky Classic service
- The name of the scroll channels and sub-channels on the first page of the
OmniSky Classic service
- The name, associated icon and associated two line text description on the
tap-through page for each channel and sub-channel of the OmniSky Classic
service
- The user interface for AOL Mail, AIM, and other AOL-created applications,
provided that the applications inter-operate with the OmniSky browser
Upon mutual agreement, additional customization of the
Service will be performed by OmniSky on a NRE basis, for which
OmniSky will charge AOL either (i) commercially reasonable
rates or (ii) rates on terms no less favorable than those
offered to any other OmniSky partner. The Parties will
mutually agree to a process of quality assurance and
deployment of content on the Service during the term.
o AOL will develop or acquire all content or commerce vertical
services to be offered as part of the Service and may offer
any such services (including personalized information,
location-
<PAGE> 33
based services, e-commerce, content, transactions, etc) in its
discretion, provided that such services are compatible with
the OmniSky service architecture.
o OmniSky may present AOL with certain value-added services
(including wireless synchronization, advanced forms of
notification, and location-based services) that the Parties,
on a case by case basis, may mutually decide to implement
within the Service.
o To the extent that OmniSky introduces new capabilities to its
end-users and partners, OmniSky will make such services and/or
applications available to AOL as early as and on terms no less
favorable than those offered to any other OmniSky end-user or
partner.
o AOL will sell all advertising (e.g., advertising, slotting
fees, sponsorships, content placements) and mobile commerce
opportunities.
- USER EXPERIENCE: AOL and OmniSky will coordinate customization of the
installation process and other aspects of the Service's user experience,
provided that AOL will maintain editorial control over the dialogues and
other information presented to the user.
- CONTENT-BASED ADVERTISING: At AOL's option, OmniSky will integrate its
ad-serving capabilities into the Service, when available. Should AOL decide
to integrate OmniSky's advertising capabilities, AOL will sell all
associated advertising inventory slots.
B. LAUNCH: The Parties will use best or all reasonable efforts to launch
the Service within 60 days of AOL providing notice that it wants to
launch for any particular device/network then supported by OmniSky,
provided that AOL notifies OmniSky either: 1) within 30 days of
receiving notice from OmniSky that its service will be available on a
new device or network (per "Future Networks and Devices" above, or 2)
after commercial launch of OmniSky's own service for that device or
network.
C. BRANDING:
- SERVICE. The user interface for the Service will include branding as
designated by AOL and will include OmniSky ingredient branding (e.g.,
"AOL Wireless by OmniSky").
- MODEMS. If AOL elects to procure wireless modems from OmniSky,
OmniSky will have the right to brand the modem with the OmniSky
brand. AOL may purchase modems from a third party in accordance with
OmniSky's specifications or from OmniSky's approved vendors in which
case AOL has the right to brand the modems.
D. MARKETING:
- AOL will create all collateral and marketing materials. OmniSky will provide
any necessary artwork and marketing materials to AOL.
- AOL will market the Service through online and offline channels, to be
determined at AOL's discretion.
- DISTRIBUTION. AOL will distribute the Service through its core online
service or through other marketing channels, to be determined at AOL's
discretion.
<PAGE> 34
E. AOL may distribute the AOL-branded modems through its retail channels
upon the implementation of a retail provisioning system.
F. PACKAGING, FULFILLMENT AND PROVISIONING: OmniSky will create all
packaging materials in accordance with AOL's specifications. OmniSky
will provide all provisioning and fulfillment (including to the
end-user) for the Service and related hardware. In the event AOL
distributes the modem and Service through its retail channels, AOL
will provide fulfillment and OmniSky will provision the Service. If
mutually agreed, OmniSky will fulfill to AOL's retail channels.
G. WARRANTEES. If AOL purchases OmniSky-branded modems from OmniSky,
OmniSky will offer Service subscribers a modem warrantee on terms no
less favorable than those offered to OmniSky Classic customers or
other OmniSky partners. If AOL purchases the modems from a third
party (subject to Section C), AOL will be responsible for any
associated warrantee policy.
H. RETURNS. If OmniSky fulfills OmniSky-branded modems directly to
Service end users, OmniSky will offer a return policy with terms no
less favorable than those offered to OmniSky Classic customers or to
other OmniSky partners. If OmniSky fulfills OmniSky-branded modems to
the retail channel, OmniSky will offer a return policy with terms no
less favorable than those offered to OmniSky Classic channel partners
and customers. If AOL fulfills modems to the retail channel or to end
users, AOL will be responsible for any associated return policy.
I. REACTIVATION. OmniSky will offer Service subscribers a reactivation
option with terms no less favorable than those offered to OmniSky
Classic customers or other OmniSky partners.
J. ECONOMICS:
- SERVICE SUBSCRIPTION FEES: For each subscriber to the Service, AOL will pay
OmniSky the least of (i) [***]% of the lowest retail monthly, or its
equivalent (e.g., in the event OmniSky does year-long deals or limited-hours
offers for fixed fees), price for the OmniSky-branded service, (ii) the
lowest monthly, or its equivalent, wholesale rate charged by OmniSky to any
other partner, or (iii) the flat fee per month per subscriber according to
the following schedules:
<TABLE>
<CAPTION>
CUMULATIVE SUBSCRIBERS ACQUIRED FEE PER MONTH PER SUB
BY AOL (PRO-RATED FOR PARTICULAR MONTHS)
------------------------------- ---------------------------------
<S> <C>
0 - 50,000 $[***]
</TABLE>
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
<PAGE> 35
<TABLE>
<S> <C>
50,000 - 150,000 $[***]
150,000 - 250,000 $[***]
250,000 - 500,000 $[***]
500,000+ $[***]
</TABLE>
- The number of subscribers (for the above calculation) is determined on the
last day of the month for the prior month. Those fees reflect wholesale
pricing which includes billing and customer service and excludes credit card
processing fees, merchant bank fees and bad debt expense unless otherwise
specified.
- If OmniSky's direct, variable costs to provide the Service decrease by 10%
or more, AOL will receive the equivalent percentage discount on its
wholesale rates set forth above. OmniSky will notify AOL of any such cost
decrease and implement such wholesale rate decrease on a quarterly basis
(AOL has audit rights).
- MODEMS: At AOL's option, end users will receive modems in one of two ways:
i. AOL can buy modems from third parties (parameters outlined
in Section C) in which case AOL will fulfill and OmniSky
will provision the modems.
ii. AOL can buy modems from OmniSky at OmniSky's lowest
wholesale cost from its manufacturers or lowest wholesale
price provided to any third party in which case OmniSky
will fulfill and provision modems to the end-user.
- ANCILLARY REVENUES: All advertising (including content slotting fees) and
mobile commerce revenues directly attributable to the Service will be split
[***]% to AOL and [***]% to OmniSky. In the event that OmniSky successfully
refers a content provider to AOL (subject to AOL's prior written approval),
the advertising (including content slotting fees) and mobile commerce
revenues directly attributable to the Service will be split [***]% to
OmniSky and [***]% to AOL.
- CONTENT-BASED ADVERTISING. AOL will make commercially reasonable
efforts to sell advertising on the Service.
- MARKETING. AOL will be responsible for marketing the Service.
- PACKAGING, PROVISIONING AND FULFILLMENT. AOL will reimburse OmniSky for all
actual and reasonable incremental costs associated with packaging,
provisioning and fulfillment.
- SERVICE OPERATIONS AND MAINTENANCE. OmniSky will incur all service
operations and maintenance costs. OmniSky will also incur all content
deployment and quality assurance costs.
[***] Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
<PAGE> 36
- NOTIFICATION. OmniSky will provide AOL with at least 30 days advance notice
of any retail price changes for the OmniSky-branded modem or service.
OmniSky may also approach AOL on less than 30 days notice and seek a
mutually agreeable response to a competitors retail promotion. (e.g.
temporary pricing action)
K. CUSTOMER SUPPORT: At AOL's discretion, OmniSky will provide
first-tier customer support with hot transfers to AOL in the event of
any questions specific to the AOL content or services. The Parties
will agree to a script for customer support in the event OmniSky
provides customer support. The Parties will work to transition
customer support to AOL as soon as reasonably practicable.
L. BILLING: At AOL's discretion, OmniSky will bill the subscriber for
the Service in AOL's name and will remit all payments from the end
user to AOL. The Parties will work to transition billing for the
Service to AOL as soon as reasonably practicable.
M. REGISTRATION AND SIGN-ON: Subscribers will register (or create an
account) for the Service using an AOL screen name and password within
the AOL namespace. OmniSky acknowledges that AOL, in its discretion,
may require that Service subscribers also be subscribers to another
AOL service (e.g., the AOL Classic ISP Service). AOL Classic
end-users will have the ability to sign on using all their AOL
Classic screen names for use under this service.
N. SOURCING: AOL and OmniSky will collaborate on modem procurement and
airtime pricing.
O. MARKETING COMMITMENTS
AOL will make commercially reasonable efforts to market the Service.
<PAGE> 37
[EXHIBIT G]
AOL PROPERTIES SUBJECT TO OMNISKY'S MARKETING COMMITMENT
AOL.com
Netscape Netcenter
Netscape NetCenter
AOL.com Pictures and Albums
AOL.com Autos
AOL Computing
Netscape NetCenter Autos
Netscape NetCenter Computing and Internet
AOL.com Top Stories
AOL.com Stock Portfolio
AOL.com News
AOL.com Personal Finance
AOL.com Business and Careers
Digital City
AOL Local
CompuServe
AOL.com Travel
<PAGE> 38
EXHIBIT H
QUALITY ASSURANCE PROCEDURE
[TO BE AGREED BY THE PARTIES]
<PAGE> 39
EXHIBIT I
[THIS EXHIBIT INTENTIONALLY LEFT BLANK.]
<PAGE> 40
EXHIBIT J
CUSTOMIZED SERVICE SCREEN SHOT
[LOGO]
