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EXHIBIT 10.1
INTERACTIVE MARKETING AGREEMENT
This Interactive Marketing Agreement (the "Agreement"), dated as of
April 13, 1999 (the "Effective Date"), is between America Online, Inc. ("AOL"),
a Delaware corporation, with offices at 22000 AOL Way, Dulles, Virginia 20166,
and AutoConnect, L.L.C. ("Marketing Partner", or "MP"), a Delaware limited
liability company, with offices at 1400 Lake Hearn Drive, Atlanta, Georgia
30319. AOL and MP may be referred to individually as a "Party" and collectively
as the "Parties."
INTRODUCTION
AOL and MP each desires to enter into an interactive marketing
relationship whereby AOL will promote and distribute an interactive site
referred to (and further defined) herein as the Affiliated MP Site. This
relationship is further described below and is subject to the terms and
conditions set forth in this Agreement. Defined terms used but not defined in
the body of the Agreement will be as defined on Exhibit B attached hereto.
TERMS
1. PROMOTION, DISTRIBUTION AND MARKETING.
1.1. AOL PROMOTION OF AFFILIATED MP SITE. AOL will provide MP with
the promotions for the Affiliated MP Site described on Exhibit
A attached hereto and in Sections 1.2.1 and 1.2.2 below.
Subject to MP's reasonable prior approval, AOL will have the
right to fulfill its promotional commitments with respect to
any of the foregoing by providing MP comparable promotional
placements in appropriate alternative areas of the AOL
Network. In addition, if AOL is unable to deliver any
particular Promotion, AOL will work with MP to provide MP, as
its sole remedy, a comparable promotional placement. AOL
reserves the right to redesign or modify the organization,
structure, "look and feel," navigation and other elements of
the AOL Network at any time. In the event such modifications
materially and adversely affect any specific Promotion, AOL
will work with MP to provide MP, as its sole remedy, a
comparable promotional placement. The promotions described on
Exhibit A and in Sections 1.2.1 and 1.2.2 and any comparable
promotions provided herein shall be referred to as the
"Promotions." In the event that AOL discontinues its
Classified Auto Category, the Parties shall attempt to agree,
within * (*) days of such discontinuance, upon
comparable promotional placements to be provided to MP, to the
extent of the promotional commitments still owed to MP under
this Agreement. In the event that the Parties cannot agree on
such comparable promotional placements within such * (*)
day period, the parties will submit such dispute to the
Management Committee (as defined in Section 6.1 hereof) for
resolution. If the Management Committee cannot resolve such
dispute within an additional * (*) days, MP shall have
the right to terminate this Agreement upon written notice to
AOL. In the event of termination of this Agreement by MP in
accordance with this Section 1.1, AOL shall refund to MP the
pro rata portion of the payments made pursuant to Section 4.1
hereof equal to the value of the Classifieds Final Sponsorship
Shortfall as defined in Section 1.2.2 hereto, to be determined
in accordance with the allocation methodology set forth in
Section 1.2.2 hereof.
1.2. IMPRESSIONS COMMITMENT.
1.2.1. During the Term, AOL shall deliver * Impressions (*)
to MP through the Promotions described on Exhibit A
(the "Promotions Impressions Commitment"). In the
event there is (or
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will be in AOL's reasonable judgment) a shortfall in
the Promotions Impressions Commitment as of the end
of the Initial Term (a "Final Promotions Shortfall"),
AOL will provide MP, as MP's sole remedy, with one of
the following three remedies: (a) continuation of
Promotions until such time as the Final Promotions
Shortfall has been delivered, (b) an advertising
credit equal to the value of the Final Promotions
Shortfall (determined by multiplying the percentage
of Impressions that were not delivered by the total,
guaranteed payment provided for in Section 4.1 below)
to be used to purchase (subject to availability)
inventory within the Levels described on Exhibit A at
the CPMs specified therein for each Level, or (c) a
refund of a pro rata portion of the payments made
pursuant to Section 4.1 equal to the value of the
Final Promotions Shortfall (determined by multiplying
the percentage of Impressions that were not delivered
by the total, guaranteed payment provided for in
Section 3.1 below). In the event of a Final
Promotions Shortfall, AOL shall promptly provide MP
with written notice of the Final Promotions Shortfall
and AOL shall determine, in its sole discretion,
which of the remedies set forth in the foregoing
sentence shall be provided to MP.
In the event that AOL selects remedy (a) or (b) set
forth above, AOL shall deliver the Final Impression
Shortfall to MP within six (6) months following the
expiration of the Initial Term.
At least * (*) Impressions shall be delivered to the
main screen of the vehicles department of Classifieds
Plus (the "Classifieds Plus Sponsorship Impressions
Commitment") and at least * Impressions (*) shall be
delivered to the main screen of the Decision Guide
Affiliated Site (the "DGAS Sponsorship Impressions
Commitment").
1.2.2. In the event there is (or will be in AOL's reasonable
judgment) a shortfall in the Classifieds Plus
Sponsorship Impression Commitment as of the end of
the Initial Term (a "Classifieds Final Sponsorship
Shortfall"), AOL will provide MP, as MP's sole
remedy, with one of the following two remedies: (a)
AOL will continue to deliver Impressions on the main
screen of the vehicle department of Classified Plus
until such time as the Classifieds Final Sponsorship
Shortfall has been delivered, or (b) AOL will pay MP
a refund of * for each Impression to the main screen
of the vehicle department of Classified Plus
committed to but not delivered. In the event of a
Classifieds Final Sponsorship Shortfall, AOL shall
promptly provide MP with written notice of the
Classifieds Final Sponsorship Shortfall and AOL shall
determine, in its sole discretion, which of the
remedies set forth in the foregoing sentence shall be
provided to MP. In the event there is (or will be in
AOL's reasonable judgment) a shortfall in the DGAS
Sponsorship Impression Commitment as of the end of
the Initial Term (a "DGAS Final Sponsorship
Shortfall"), AOL will provide MP, as MP's sole
remedy, with one of the following three remedies: (a)
AOL will continue to deliver Impressions on the
Decision Guide Affiliated Site until such time as the
DGAS Final Sponsorship Shortfall has been delivered,
(b) AOL will give MP an advertising credit equal to *
cents times the number of undelivered Impressions to
be used to purchase (subject to availability)
inventory within the Levels described on Section A of
Exhibit A at the CPMs specified therein for each
Level or (c) AOL will pay MP a refund of * cents for
each Impression to the Decision Guide Affiliated Site
committed to but not delivered. In the event of a
DGAS Final Sponsorship Shortfall, AOL shall promptly
provide MP with written notice of the DGAS Final
Sponsorship Shortfall and AOL shall determine, in its
sole discretion, which of the remedies set forth in
the foregoing sentence shall be provided to MP.
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1.3. CONTENT OF PROMOTIONS. Promotions for MP will link only to the
Affiliated MP Site and will promote only the MP Products
listed on Exhibit D. The specific MP Content to be
contained within the Promotions (including, without
limitation, advertising banners and contextual promotions)
(the "Promo Content") will be determined by MP, subject to
AOL's technical limitations, the terms of this Agreement and
AOL's then-applicable policies relating to advertising and
promotions (provided that, with respect to AOL's
then-applicable policies relating to advertising and
promotions, MP shall not be in breach of this Agreement for
violations of any such policies to the extent that MP was not
aware of the applicable terms of any such then-applicable
policies). MP will meet in person or by telephone with its
designated AOL account services representative at least
monthly to review operations and performance hereunder,
including a review of the Promo Content to ensure that it is
designed to maximize performance. MP will consistently update
the Promo Content no less than twice per month. Except to the
extent expressly described herein, the specific form,
placement, duration and nature of the Promotions will be as
determined by AOL in its reasonable editorial discretion
(consistent with the editorial composition of the applicable
screens).
1.4. MP PROMOTION OF AFFILIATED MP SITE AND AOL. As set forth in
Exhibit C, MP will promote the availability of the Affiliated
MP Site through the AOL Network.
2. AFFILIATED MP SITE AND DECISION GUIDE.
2.1. CONTENT. MP will make available through the Affiliated MP Site
the comprehensive offering of MP services and other related
Content described on Exhibit D. Except as mutually agreed in
writing by the Parties, the Affiliated MP Site will contain
only Content that is directly related to the MP services
listed on Exhibit D and will not contain any third-party
products, services, programming or other Content unrelated to
the MP services described on Exhibit D hereto. MP will review,
delete, edit, create, update and otherwise manage all Content
available on or through the Affiliated MP Site in accordance
with the terms of this Agreement. MP will ensure that the
Affiliated MP Site shall not in any respect promote,
advertise, market or distribute the products, services or
content of any other Interactive Service. AOL has provided MP
a list of categories in which AOL has established exclusive or
premier relationships with third parties. MP agrees that it
shall secure AOL's approval before entering into any agreement
to promote, advertise, market or distribute, within the
Affiliated MP Site, the products or services of any entity
primarily engaged in any of the listed lines of business;
provided, however, that MP shall have no obligation to seek
such approval before entering into any agreement with any
entity in any such listed line of business if, as of the
Effective Date, MP has an existing agreement to promote,
advertise, market or distribute the products, services or
content of any entity in such category (e.g., insurance
information, Internet-based mapping services, etc.).
2.2. CUSTOMIZATION OF THE AFFILIATED MP SITE. MP shall create, at
its own cost and expense, the customized Affiliated MP Site,
as well as any appropriate infrastructure additions to the
Affiliated MP Site to support the projected traffic growth
thereon. The Affiliated MP Site will have substantially
similar look and feel as the MP Look and Feel and will be
co-branded with the appropriate AOL Three System trademarks,
in accordance with MP's then current co-branding format (with
the general prominence and placement of such co-branding to
appear substantially as displayed on Exhibit K attached
hereto) (collectively, the "Affiliated Site Look and Feel").
MP reserves the right to redesign or modify the Affiliated
Site Look and Feel at any time (subject to the terms of this
Agreement, including without limitation regarding AOL's
ownership and control of such AOL trademarks and any Content
or other elements of the Affiliated Site Look and Feel
supplied by AOL) and to redesign and modify the Affiliated MP
Site accordingly. Upon the initial launch of the MP Affiliate
Site, such customization shall include, without limitation,
the following: (i) a
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prominent link back to the main screen of Classifieds Plus
below the toolbar on such main screen (or, in the event of any
redesign of such area, in a comparable location) and (ii) a
link back to the area of the AOL Network from which the AOL
User has come to the Affiliated MP Site, the appearance of
which shall be substantially as set out in Exhibit K (it being
understood and agreed by the Parties that such Exhibit is for
illustrative purposes only, and that the precise design and
color is subject to modifications therefrom and that such AOL
designated area on such Exhibit may be branding and/or
navigational links); provided, however, that AOL will work
with MP to design such links and to ensure that such links are
directed to the appropriate pages within the AOL Three System
(including, without limitation, by providing relevant URLs to
MP; and (iii) the URL of the Affiliated MP Site shall be
www.autoconnect.aol.com or any such other URL as described
below; provided, however, that such URL shall at all times
include prominently both (x) "autoconnect" (or any successor
brand of MP) and (y) "aol.com" or "csi.com" or any other
relevant name, brand or initials of the AOL Three System (or
any successor thereto), as determined by AOL. AOL shall work
with MP and any third party traffic measurement service (e.g.,
Media Metrix), to facilitate MP's receiving credit for traffic
to such URL as part of its overall network. MP will ensure
that the Affiliated MP Site will be presented predominantly as
a destination site for information on shopping for,
purchasing, and owning a used car. In addition, MP shall, as
promptly as practicable, replace the pre-existing "new car"
button on the Affiliated MP Site with a similar button saying
"new car info" (or a substantially similar message) to remain
conceptually similar thereto during the Term. When MP launches
a redesigned MP Interactive Site (currently anticipated for
the early fall of 1999), MP shall include, in lieu of the back
links described in subsections (i) and (ii), above, a
navigational tool bar, for navigation within the applicable
portion of the AOL Three System (to contain only navigation
and branding, but not to include banner advertisements), to be
created and served by AOL (the "Tool Bar"), at the top of each
page of the MP Affiliate Site. AOL shall control all
programming and applicable branding of such Tool Bar, and the
size and general appearance of such Tool Bar is to be
substantially in the form as shown on Exhibit J attached
hereto (it being understood and agreed by the Parties that
such Exhibit is for illustrative purposes only, and that the
precise design and color is subject to modifications
therefrom). MP shall use commercially reasonable efforts to
achieve launch of the re-designed Affiliated MP Site on or
before September 1, 1999, and shall in any event launch the
re-designed Affiliated MP Site on or before October 15, 1999.
2.3. PRODUCTION WORK. Except as agreed to in writing by the Parties
pursuant to the "Production Work" section of the Standard
Online Commerce Terms & Conditions attached hereto as Exhibit
F, MP will be responsible for all production work associated
with the Affiliated MP Site, including all related costs and
expenses, (except that, if and to the extent AOL supplies and
serves any advertisements to the Affiliated MP Site, AOL shall
pay any costs or expenses directly associated with serving
such advertisements to the Affiliated MP Site, and that AOL
shall pay the relevant programming expenses for the Tool Bar
and, if the Tool Bar is served by AOL, AOL will then pay any
costs or expenses directly associated with serving the Tool
Bar).
2.4. TECHNOLOGY. MP will take all reasonable steps necessary to
conform its promotion of Products through the Affiliated MP
Site to the then-existing technologies identified by AOL which
are optimized for the AOL Service. AOL will be entitled to
require reasonable changes to the Content (including, without
limitation, the features or functionality) of the Affiliated
MP Site to the extent such Content will, in AOL's good faith
judgment, adversely affect any operational aspect of the AOL
Network. AOL reserves the right to review and test the
Affiliated MP Site from time to time to determine whether the
site is compatible with AOL's then-available client and host
software and the AOL Network.
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2.5. PRODUCT OFFERING. MP will ensure that the Affiliated MP Site
includes all of the Products and other Content (including,
without limitation, any features, offers, contests,
functionality or technology) that are then made available by
or on behalf of MP through any Additional MP Channel;
provided, however, that (i) such inclusion will not be
required where it is commercially or technically impractical
to either Party (i.e., inclusion would cause either Party to
incur substantial incremental costs), (ii) such inclusion will
not be required where it would be a violation of MP's
obligation under Section 2.1 or Section 2.10 of this
Agreement; and (iii) the specific changes in scope, nature
and/or offerings required by such inclusion will be subject to
AOL's review and approval (which shall not be unreasonably
withheld) and the terms of this Agreement.
2.6. EXCLUSIVE OFFERS/MEMBER BENEFITS. MP shall promote through the
Affiliated MP Site at least once per quarter a special offer
exclusively available to AOL Users (the "AOL Exclusive
Offers"). The AOL Exclusive Offers shall provide a member
benefit to AOL Users, either by virtue of a meaningful price
discount, product enhancement, unique service benefit or other
special feature (e.g., offering of free T-shirts, baseball
caps, used cars, etc). MP will provide AOL with reasonable
prior notice of AOL Exclusive Offers so that AOL can market
the availability of such AOL Exclusive Offers in the manner
AOL deems appropriate in its editorial discretion.
2.7. OPERATING STANDARDS. MP will ensure that the Affiliated MP
Site complies at all times with the standards set forth in
Exhibit E. To the extent site standards are not established in
Exhibit E with respect to any aspect or portion of the
Affiliated MP Site (or the Products or other Content contained
therein), MP will provide such aspect or portion at a level of
accuracy, quality, completeness, and timeliness that meets or
exceeds prevailing standards in the online industry for
providers of the services set forth on Exhibit D. In the event
MP fails to comply (1) with its obligation under Section 2.1
of this Agreement to ensure that the Affiliated MP Site will
not promote, advertise, market or distribute the products
services or content of any other Interactive Service or (2)
with the provisions of Exhibit E (except for Sections 1 and
4), or (3) with any other material terms of AOL's Terms of
Service, Privacy Policy, or technical requirements herein,
which failure, by its nature, requires immediate action by AOL
(e.g., offensive content on the Affiliated MP Site,
significant technical problems or incompatibilities of the
Affiliated MP Site or the Promo Content with the AOL Network,
or other situations causing a significant and material adverse
effect on the AOL Service or other AOL products or creating a
material poor user experience), in the good faith judgement of
AOL, then, in any such case, AOL will have the right (in
addition to any other remedies available to AOL hereunder) to
decrease the applicable promotion (i.e., remove links to such
offending areas only, to the extent possible, in a manner
narrowly tailored to address the particular problem, to the
extent possible) it provides to MP hereunder (and to decrease
or cease any other contractual obligation hereunder) until
such time as MP corrects its non-compliance (and in such
event, AOL will be relieved of the proportionate amount of any
promotional commitment made to MP by AOL hereunder
corresponding to such decrease in promotion) and any revenue
threshold(s) set forth in Section 4 will each be adjusted
proportionately to correspond to such decrease in promotion
and other obligations during the period of non-compliance;
provided that AOL shall use best efforts to notify MP of such
non-compliance promptly upon becoming aware of such
non-compliance and AOL shall make good faith efforts to
attempt to deliver such notice to MP prior to or
contemporaneously with any action by AOL authorized by this
sentence. In addition, AOL agrees to make good faith efforts
to work with MP to resolve such non-compliance as quickly as
possible. Promptly after MP has corrected such non-compliance,
AOL shall resume the level of promotions (or other contractual
obligation if applicable) in effect prior to such
non-compliance.
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2.8. ADVERTISING SALES. For the first six (6) months following the
Effective Date (the "Ad Rep Exclusivity Period"), AOL shall
have the exclusive right (the "AOL Exclusive Right") to sell
promotions, advertisements, links, pointers, or similar
services or rights (i) on or through the Decision Guide
Affiliated Site (collectively the "DGAS Advertisements") and
(ii) in any areas of the Affiliated MP Site as mutually agreed
upon by the Parties (the "AMPS Advertisements") . AOL shall
retain all revenues from the DGAS Advertisements and the AMPS
Advertisements during the Ad Rep Exclusivity Period; provided,
however, that AOL shall pay MP an amount equal to * (*) cents
per Impression with respect to DGAS Advertisements or AMPS
Advertisements sold on the Decision Guide Affiliated Site or
the Affiliated MP Site during such period, as the case may be.
Upon the expiration of the Ad Rep Exclusivity Period, MP shall
have the right to terminate the AOL Exclusive Right. Upon the
expiration or termination of the Ad Rep Exclusivity Period,
the right to sell the DGAS Advertisements and AMPS
Advertisements shall revert to MP, which, subject to Section
4.3, shall be entitled to retain all revenue from the sale of
such advertisements.
2.9 TRAFFIC FLOW. MP will make the same efforts to ensure that
traffic is kept within the Affiliated MP Site that MP makes to
ensure that traffic is kept within the MP Interactive Site.
Without limiting the generality of the foregoing, the
Affiliated MP Site will include the customizations described
in Section 2.2, above.
2.10. NEW CARS. The Affiliated MP Site may contain only general
information regarding new cars (e.g., model specifications,
reviews), but may not contain any specific mechanism to effect
the purchase of a new car. Specifically, MP will ensure that
the Affiliated MP Site does not contain (i) offers to sell new
cars (on behalf of MP or any third party), (ii) any mechanism
through which a user can make an offer to purchase a new
car(s), provided, however, that the foregoing restriction
shall not prevent MP from running banner advertisements for
new car manufacturers, provided, further, that such banner
advertisements shall not be targeted solely to AOL Users, nor
be permanent links on any page (nor the functional equivalent
thereof) to predominately new car related areas (either of car
manufacturers or dealers), (iii) links or pointers to any
interactive area which offers solely new cars for sale, or
(iv) contact information of any type (e.g., addresses, phone
numbers, links to web sites) for any entity which sells solely
new cars.
2.11. USED CAR DECISION GUIDE AFFILIATED SITE GUIDELINES. The
Decision Guide Affiliated Site pointed to from each of the AOL
Service, AOL.com, and CompuServe shall contain branding for
both the relevant AOL property and MP and shall be designed to
assist AOL Users solely in the purchase of used cars. The
branding treatment given to each party's brand shall be
substantially in the form shown in the screenshot attached
hereto as Exhibit H (it being understood and agreed by the
Parties that such Exhibit is for illustrative purposes only,
and that the precise design and color is subject to
modifications therefrom and that such AOL designated area on
such Exhibit may be branding and/or navigational links). Upon
AOL's request, and subject to any limitations on MP's rights
to third-party content, MP shall supply to AOL any Content
necessary for AOL to create the Decision Guide Affiliated
Site. The Content requested by AOL may include, without
limitation, Content related to used cars. The existing
Decision Guide Affiliated Site will be hosted by AOL and will
incorporate the Affiliated Site Look and Feel. The parties
shall mutually agree upon any enhancements to be made to the
Decision Guide Affiliated Site and the allocation of the cost
of such enhancements, except that MP shall, as promptly as
practicable, replace the pre-existing "new car" button on the
Decision Guide Affiliated Site with a similar button saying
"new car info" (or a substantially similar message), at MP's
expense, to remain conceptually similar thereto during the
Term. MP acknowledges that AOL may promote the Decision Guide
Affiliated Site from areas of the AOL Network determined by
AOL in its sole discretion. Subject to all the terms hereof
(including without
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limitation, with respect to ownership and licensing), the Used
Car Decision Guide shall be available through the Decision
Guide Affiliated Site. The Tool Bar shall appear at the top of
each page of the Decision Guide Affiliated Site. AOL shall
control all programming and applicable branding of such Tool
Bar, and the size and general appearance of the Tool Bar is to
be substantially in the form as shown on Exhibit J attached
hereto (it being understood and agreed by the Parties that
such Exhibit is for illustrative purposes only, and that the
precise design and color is subject to modifications
therefrom).
2.12. LICENSE OF DECISION GUIDE. As part of this Agreement and
subject to all of the terms and conditions contained herein,
during the Initial Term hereof (but expressly not surviving
thereafter, notwithstanding anything else to the contrary
herein) AOL hereby grants to MP a non-exclusive,
non-transferable, royalty-free license to use, advertise,
market, promote, distribute and transmit (i) the Used Car
Decision Guide for use only in connection with the Decision
Guide Affiliated Site and (ii) the Decision Guides for use
only in connection with MP's primary MP Interactive Site (but
not in any event to be distributed separately from the primary
MP Interactive Site nor integrated into any third party
website), subject to being co-branded as displayed on Exhibit
I hereto (e.g., with respect to prominence of the branding)
(it being understood and agreed by the Parties that such
Exhibit is for illustrative purposes only, and that the
precise design and color is subject to modifications
therefrom, and that such branding shall be AOL branding rather
than the PersonaLogic branding displayed on such Exhibit,
provided however that if and to the extent MP creates a
version of an MP Interactive Site which is a co-branded or
private labeled version over which a third party has
significant approval rights or to the extent MP has a
distribution agreement with a third party that is an AOL
Competitor, then such Decision Guide co-branding as described
on Exhibit I shall be PersonaLogic branded rather than AOL
(substantially similar to as it as appears on such Exhibit I,
with the message remaining as PersonalLogic), and MP shall
request in good faith that such third party agree to promote
AOL branding as described in this paragraph (but if, despite
MP's efforts to include such AOL branding in place of
PersonaLogic branding, MP is not able to promote AOL instead
as described, then MP will not be deemed in breach of this
paragraph) (the "Decision Guide License"), subject to the
other terms of this Agreement. MP may not assign (except as
provided in Section 24 of Exhibit G hereof) or sublicense the
Decision Guide License. As between the Parties, AOL or its
licensor owns all intellectual property rights and all right,
title and interest in the Decision Guides, and shall own all
modifications, alterations, additions, enhancements and
improvements thereto ("Modifications") (including, without
limitation, any Modifications made or proposed by MP thereto),
subject to the limited license rights granted to MP set forth
in this Section 2.12. MP shall have no right to make
Modifications to the Decision Guides, and MP agrees not to
reverse engineer or otherwise attempt discover the source code
or operating logic of the Decision Guides; provided, however,
that if MP shall for any reason make or cause to be made any
Modification to the Decision Guides, it shall promptly
disclose and assign to AOL all such Modifications.
Notwithstanding the foregoing (but subject to Sections 6 and 7
of Exhibit F, attached hereto), MP shall retain all rights in
the MP supplied Licensed Content (but not any AOL supplied
Content, e.g., with respect to the Decision Guide Affiliated
Site), and the MP Look and Feel, that it incorporates or
provides to AOL for incorporation into the Decision Guides,
and AOL shall retain all rights in and to the AOL Look and
Feel and the Decision Guides. MP agrees that it will not, at
any time during or after the Term, (i) do anything which may
adversely affect the validity or enforceability of any
trademark, trade name, patent, copyright or trade secret
related to the Decision Guides belonging to or licensed to AOL
(including, without limitation, any act, or any assistance to
act, which may infringe or lead to the infringement of any
proprietary right in any AOL product or service related to the
Decision Guides) or (ii) exercise, or attempt to exercise, any
proprietary rights in any AOL products or services related to
the Decision Guides. AOL represents and warrants to MP that
during the Term and from and after the
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Effective Date, the Decision Guides will not infringe or
violate any U.S. patents, copyrights, trademarks, or (to the
best of AOL's knowledge) trade secrets of any third party.
2.13. MP INTERACTIVE SITE. The Parties hereby acknowledge that, with
the exception of the obligations set forth in Sections 2.12,
or 4.2.2 hereof, and Exhibit C hereto, none of the
restrictions, requirements and/or obligations placed on the
Affiliated MP Site will apply to the operation of any MP
Interactive Site.
3. AOL EXCLUSIVITY OBLIGATIONS. During the Initial Term, provided that
MP is in compliance with the terms of this Agreement *. Notwithstanding
anything to the contrary in this Section 3 (and without limiting any
actions which may be taken by AOL without violation of MP's rights
hereunder), no provision of this Agreement will limit AOL's ability
(on or off the AOL Network) to (i) undertake activities or perform
duties pursuant to existing arrangements with third parties * or
pursuant to any agreements to which AOL becomes a party subsequent to
the Effective Date as a result of Change of Control, merger,
acquisition or other similar transaction, (ii) sell Run of Service
Advertising or Remnant Advertising anywhere on the AOL Three System to
any third party; (iii) enter into an arrangement with any third party
for the primary purpose of acquiring AOL Users whereby such party is
allowed to promote or market products or services, but only to AOL
Users that are acquired as a result of such agreement; or (iv) create
contextual links (editorial links that are not for sale) or editorial
commentary relating to any third party marketer of the Exclusive
Services. Notwithstanding anything to the contrary herein, AOL may
sell and provide targeted advertisements to automobile manufacturers
on the Exclusive Areas.
4. PAYMENTS.
4.1. GUARANTEED PAYMENTS. MP will pay AOL a non-refundable
guaranteed payment of Seventeen Million Dollars ($17,000,000)
as follows:
(i) * Dollars (US *) payable upon execution of this
Agreement; and
(ii) * Dollars (US *) payable in * (*) equal installments
of * Dollars (US*) payable as follows:
*
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* Certain information on this page has been omitted from this filing and filed
separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
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*
4.2. SHARING OF AOL ADVERTISING REVENUES AND ADVERTISING REVENUES.
4.2.1 AOL Advertising Revenues. If at any time during the
term of the Agreement (a) AOL Advertising Revenues exceed *
Dollars (US$*), or (b) the number of AOL User visits to the
Affiliated MP Site and the Decision Guide Affiliated Site
(visits to the Decision Guide Affiliated Site to count towards
this total only to the extent that they exceed the DGAS
Sponsorship Impressions Commitment) exceeds * (*) (the "Term
AOL Revenue Sharing Threshold"), then MP will pay AOL *
percent (*%) of all AOL Advertising Revenues generated from
the date on which the Term AOL Revenue Sharing Threshold is
met through the remainder of the Term. If at any time during
either the first twelve months of the Initial Term or the
second twelve months of the Initial Term either (i) the amount
of AOL Advertising Revenues generated exceeds * Dollars
(US$*), or (ii) the number of AOL User visits to the
Affiliated MP Site and the Decision Guide Affiliated Site
(visits to the Decision Guide Affiliated Site to count towards
this total only to the extent that they exceed the DGAS
Sponsorship Impressions Commitment) exceeds * (*) (the "Annual
AOL Revenue Sharing Threshold"), then MP will pay AOL *
percent (*%) of all AOL Advertising Revenues generated from
the date on which the Annual AOL Revenue Sharing Threshold is
met through the remainder of the relevant twelve month period.
MP will pay all of the foregoing amounts described in this
Section 4.2.1 on a quarterly basis within thirty (30) days
following the end of the quarter in which the applicable AOL
Advertising Revenues were generated.
4.2.2 Advertising Revenues. Advertising Revenues. If at any
time during the term of the Agreement (a) Advertising Revenues
exceed * Dollars (US$*), or (b) the number of AOL User visits
to the Affiliated MP Site, the Decision Guide Affiliated Site
(visits to the Decision Guide Affiliated Site to count towards
this total only to the extent that they exceed the DGAS
Sponsorship Impressions Commitment) and the MP Interactive
Site exceeds * (*) (the "Term Revenue Sharing Threshold"),
then MP will pay AOL * percent (*%) of all Advertising
Revenues generated from the date on which the Term Revenue
Sharing Threshold is met through the remainder of the Term. In
the event that the Term Revenue Sharing Threshold is met, then
MP shall cease to have any payment obligations under the Term
AOL Revenue Sharing Threshold described Section 4.2.1. If at
any time during either the first twelve months of the Initial
Term or the second twelve months of the Initial Term either
(i) the amount of Advertising Revenues generated exceeds *
Dollars (US$*), or (ii) the number of AOL User visits to the
Affiliated MP Site, the Decision Guide Affiliated Site (visits
to the Decision Guide Affiliated Site to count towards this
total only to the extent that they exceed the DGAS Sponsorship
Impressions Commitment) and the MP Interactive Site exceeds *
(*) (the "Annual Revenue Sharing Threshold"), then MP will pay
AOL * percent (*%) of all Advertising Revenues generated from
the date on which the Annual Revenue Sharing Threshold is met
through the remainder of the relevant twelve month period. In
the event that the Annual Revenue Sharing Threshold is met,
then MP shall cease to have any payment obligations under the
Annual AOL Revenue Sharing Threshold described Section 4.2.1.
MP will pay all of the foregoing amounts described in this
Section 4.2.2 on a quarterly basis within thirty (30) days
following the end of the quarter in which the applicable
Advertising Revenues were generated.
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4.3. ALTERNATIVE REVENUE STREAMS. In the event MP or any of its
affiliates (a) receives or desires to receive any compensation
from any third party (including, without limitation,
any MP Commerce Partner or any car dealer) in connection with
the Affiliated MP Site or the Decision Guide Affiliated Site
other than Advertising Revenues (e.g., compensation derived
from offering fee-based clubs or Auction Services) (each such
compensation, an "Alternative Revenue Stream"), MP will
promptly inform AOL in writing, and the Parties will negotiate
in good faith regarding whether MP will be allowed to market
the products or services producing such Alternative Revenue
Stream (collectively, the "Alternative Products or Services")
through the Affiliated MP Site and/or the Decision Guide
Affiliated Site, and if so, the equitable portion of revenues
from such Alternative Revenue Stream (if applicable) that will
be shared with AOL; provided that MP shall be permitted to
offer MP-logo products (e.g., cups, hats, mugs) and to retain
all revenues from such sales, any other provision of this
Agreement notwithstanding (if and to the extent such revenues
do not exceed 5% of all revenues generated through the
Affiliated MP Site). If the Parties cannot agree, despite good
faith discussions, to the exact terms and conditions regarding
the marketing of any such Additional Products or Services, MP
shall be prohibited from marketing such Additional Products or
Services on the Affiliated MP Site and/or the Decision Guide
Affiliated Site. For the avoidance of doubt, Alternative
Revenue Stream shall not include the revenues generated by the
sale of any product or service to car sellers (e.g., offering
of website hosting) so long as (a) the price of such product
or service is not quoted or priced on an impressions based
model (e.g., based on traffic); and (b) the price of such
product or service is not supported or justified to the
customer by an explicit representation of the value of the
incremental AOL traffic resulting from this Agreement or the
collection of AOL User data; and (c) if and to the extent MP
offers to any third party any mechanism to capture the value
incremental traffic provides to the sale of such product or
service, then AOL shall receive compensation for AOL traffic
at least as favorable to AOL as to any such third party.
4.4. LATE PAYMENTS; WIRED PAYMENTS. All amounts owed hereunder not
paid when due and payable will bear interest from the date
such amounts are due and payable at the prime rate in effect
at such time. All payments required hereunder will be paid in
immediately available, non-refundable U.S. funds wired to the
"America Online" account, Account Number * at The Chase
Manhattan Bank, 1 Chase Manhattan Plaza, New York, NY 10081
(ABA: *).
4.5. AUDITING RIGHTS. During the Term of this Agreement and for
twelve (12) months thereafter, MP will maintain complete,
clear and accurate books and records relating to this
Agreement in accordance with generally accepted accounting
principles. During the Term of this Agreement and for twelve
(12) months thereafter, for the sole purpose of ensuring
compliance with this Agreement and determining the accuracy of
MP's reports, payments and revenues made or generated pursuant
to this Agreement, AOL (or its representative) will have the
right to conduct a reasonable and necessary inspection of
portions of the books and records of MP which are relevant to
MP's performance pursuant to this Agreement. Any such audit
may be conducted during normal business hours and after twenty
(20) business days prior written notice to MP. AOL shall bear
the expense of any audit conducted pursuant to this Section
4.5 unless such audit shows an error in AOL's favor amounting
to a deficiency to AOL in excess of five percent (5%) of the
actual amounts paid and/or payable to AOL hereunder, in which
event MP shall bear the reasonable expenses of the audit. MP
shall pay AOL the amount of any deficiency discovered by AOL
within thirty (30) days after receipt of notice thereof from
AOL.
4.6. TAXES. MP will collect and pay and indemnify and hold AOL
harmless from, any sales, use, excise, import or export value
added or similar tax or duty not based on AOL's net
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<PAGE> 11
income, including any penalties and interest, as well as any
costs associated with the collection or withholding thereof,
including attorneys' fees.
4.7. REPORTS.
4.7.1. Sales Reports. MP will provide AOL in an automated
manner with a monthly report in a mutually agreed-upon format,
detailing the following activity in such period (and any other
information mutually agreed upon by the Parties or reasonably
required for measuring revenue activity by MP through the
Affiliated MP Site): (i) the number of visits to the
Affiliated MP Site, (ii) to the extent technically feasible,
the number of referrals sent to dealers from the Affiliated MP
Site, and (iii) a detailed description of Advertising Revenues
collected by MP (and the expenses associated therewith). AOL
will be entitled to use such information from such sales
reports in its business operations, subject to the terms of
this Agreement, and subject further to the following
limitations: during the Term and for a two year period
thereafter, such information shall not be released by AOL to
any third party not an affiliate of AOL (except, in each case,
for information released in the aggregate, without identifying
MP or MP's customers individually, and without distinguishing
MP's Promotions or Impressions from those of AOL's other
partners on the same screens or pages, e.g., for
promotional/marketing purposes when selling advertising to new
commerce partners (general "success stories" of AOL channels
or screens), and neither AOL nor any of its affiliates shall
not use such sales reports information obtained from MP to
compete with MP.
4.7.2. Usage Reports. AOL shall provide MP in an automated
manner with third party-audited, standard monthly
usage information related to the Promotions (e.g., a
schedule of the Impressions delivered by AOL at such
time and the number of visits to the Decision Guide
Affiliated Site) which are similar in substance and
form to the reports provided by AOL to other
interactive marketing partners similar to MP. In
addition, AOL shall provide MP with a monthly report,
in a mutually agreed upon form, regarding the
advertisements sold by AOL pursuant to Section 2.8.
At a minimum, such reports will provide breakdown by
impression, by advertiser, by month. All such
information from AOL shall be Confidential
Information, and used only be MP (and not disclosed
to any third party or affiliate).
4.7.3. Overhead Accounts. AOL shall provide MP with twelve
(12) overhead accounts, as further described in
Section 13 of Exhibit F.
5. TERM; RENEWAL; TERMINATION.
5.1. Term. Unless earlier terminated as set forth herein, the
initial term of this Agreement will be twenty-six (26) months
from the Effective Date (the "Initial Term").
5.2. Renewal. Upon conclusion of the Initial Term, this Agreement
may be renewed in accordance with one of the following two
renewal term options (each a "Renewal Term" and together with
the Initial Term, the "Term"): (i) the Parties may mutually
agree to renew this Agreement for a two (2) year term, during
which Renewal Term MP will be required to pay a guaranteed
fixed payment for the Renewal Term and perform the
cross-promotional obligations specified in Section 1 hereof,
and AOL will be obligated to undertake fixed
promotional/placement obligations or (ii) AOL may, at its
option, elect to renew this Agreement for successive (1) year
terms (not to exceed two (2) years in the aggregate) during
which MP will not be required to pay any guaranteed, fixed
payment or perform the
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cross-promotional obligations specified in Section 1, and AOL
will not be required to undertake any fixed
promotional/placement obligations. If the Parties elect to
renew this Agreement pursuant to subsection (i) above, AOL and
MP shall work together in good faith to mutually agree upon
the exact fixed promotional/placement obligations for the
Renewal Term and the corresponding guaranteed, fixed payment.
In the event that the Parties cannot agree, despite good faith
discussions, on the exact fixed promotional/placement
obligations and the corresponding guaranteed, fixed payment on
or before the first day of the Renewal Term, the Agreement
shall renew pursuant to subsection (ii) above. If AOL elects
to renew this Agreement pursuant to subsection (ii) above, (x)
if such renewal is on an exclusive basis (as set forth in
Section 3 hereof), MP shall pay AOL * percent (*%) of
Advertising Revenues for the entire Renewal Term (i.e., there
is no hurdle before revenue sharing begins) or (y) if the
renewal is on a non-exclusive basis, then MP shall pay AOL the
greater of (i) * percent (*%) of the Advertising Revenues
generated during such period, or (ii) the greatest amount paid
by MP to any other participant in an MP "affiliate program"
(defined as any significant distribution partner of MP), or
(iii) the prevailing industry rates for similar distribution
arrangements.
5.3. Termination for Breach. Except as expressly provided elsewhere
in this Agreement, either Party may terminate this Agreement
at any time in the event of a material breach of the Agreement
by the other Party which remains uncured after thirty (30)
days written notice thereof to the other Party (or such
shorter period as may be specified elsewhere in this
Agreement); provided that if MP fails to make any payment to
AOL required hereunder, the cure period will be fifteen (15)
days from the date on which the payment was required to be
made. Notwithstanding the foregoing, in the event of a
material breach of a provision that expressly requires action
to be completed within an express period shorter than 30 days,
either Party may terminate this Agreement if the breach
remains uncured for an equal number of days after written
notice thereof to the other Party.
5.4. Termination for Bankruptcy/Insolvency. Either Party may
terminate this Agreement immediately following written notice
to the other Party if the other Party (i) ceases to do
business in the normal course, (ii) becomes or is declared
insolvent or bankrupt, (iii) is the subject of any proceeding
related to its liquidation or insolvency (whether voluntary or
involuntary) which is not dismissed within ninety (90)
calendar days or (iv) makes an assignment for the benefit of
creditors.
5.5. Termination on Change of Control. In the event of (i) a Change
of Control of MP resulting in control of MP by an Interactive
Service or (ii) a Change of Control of AOL, AOL may terminate
this Agreement by providing thirty (30) days prior written
notice of such intent to terminate. In the event that the
Parent Company shall, directly or indirectly acquire an AOL
Competitor, AOL shall have the right to terminate this
Agreement in accordance with this Section 5.5, provided that
in the event of such termination, AOL shall provide a refund
to MP in the manner set forth in Section 1.2.1 hereof.
6. MANAGEMENT COMMITTEE/DISPUTE RESOLUTION.
6.1. Management Committee. The Parties will act in good faith and
use commercially reasonable efforts to promptly resolve any
claim, dispute, claim, controversy or disagreement (each a
"Dispute") between the Parties or any of their respective
subsidiaries, affiliates, successors and assigns under or
related to this Agreement or any document executed pursuant to
this Agreement or any of the transactions contemplated hereby.
If the Parties cannot resolve the Dispute within such time
frame, the Dispute will be submitted to the Management
Committee for resolution. For ten (10) days following
submission of the Dispute to the Management Committee, the
Management Committee
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<PAGE> 13
will have the exclusive right to resolve such Dispute;
provided further that the Management Committee will have the
final and exclusive right to resolve Disputes arising from any
provision of the Agreement which expressly or implicitly
provides for the Parties to reach mutual agreement as to
certain terms. If the Management Committee is unable to
amicably resolve the Dispute during the ten-day period, then
the Management Committee will consider in good faith the
possibility of retaining a third party mediator to
facilitate resolution of the Dispute. In the event the
Management Committee elects not to retain a mediator, the
Dispute will be subject to resolution through any legal means
deemed appropriate by either Party, subject to the remainder
of this Section 6. "Management Committee" will mean a
committee made up of a senior executive from each of the
Parties, each of whom is at least a Senior Vice President at
his or her respective company, for the purpose of resolving
Disputes under this Section 6 and generally overseeing the
relationship between the Parties contemplated by this
Agreement. Neither Party will seek, nor will be entitled to
seek, binding outside resolution of the Dispute unless and
until the Parties have been unable amicably to resolve the
Dispute as set forth in this Section 6 and then, only in
compliance with the procedures set forth in this Section 6.
6.2. Governing Law. This Agreement shall be governed by and
interpreted under the laws of the State of Delaware, without
reference to Delaware's choice of law rules.
6.3. Consent to Jurisdiction; Waivers. Each of AOL and MP (i)
irrevocably consents to the exclusive jurisdiction of any
state or federal court located within the State of Delaware
over any and all actions and claims arising under this
Agreement, as well as any and all actions to enforce such
claims or to recover damages or other relief in connection
with such claims, (ii) waives personal service of any and all
process upon it, (iii) consents that all such service of
process shall be made by registered mail directed to AOL or MP
(as the case may be) at the addresses set forth in the first
paragraph of this Agreement, and that such service of process
shall be deemed to have been completed three (3) business days
after the same shall have been posted as aforesaid; and (iv)
waives any objection based upon forum non conveniens and any
objection to venue of any action instituted hereunder.
6.4. WAIVER OF TRIAL BY JURY. EACH PARTY HERETO WAIVES ANY RIGHT TO
TRIAL BY JURY WITH RESPECT TO ANY CLAIM OR ACTION ARISING OUT
OF THIS AGREEMENT IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED HEREBY.
7. STANDARD TERMS. The Standard Online Commerce Terms & Conditions set
forth on Exhibit F attached hereto and Standard Legal Terms &
Conditions set forth on Exhibit G attached hereto are each hereby made
a part of this Agreement.
[signature page follows]
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
Effective Date.
AMERICA ONLINE, INC. AUTOCONNECT, L.L.C.
By: /s/ David M. Colburn By: /s/ Victor A. Perry, III
-------------------------------- -------------------------------
Name David M. Colburn Name: Victor A. Perry, III
Title: Senior Vice President Title: President/CEO
of Business Affairs
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<PAGE> 15
EXHIBIT A
PLACEMENT/PROMOTION
*
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separately with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
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A. MP may elect to redistribute Promotions among Level 1, Level 2, and
Level 3 in accordance with the following formulas: (a) a Level 1 Impression may
be exchanged for two Level 2 Impressions or ten Level 3 Impressions, (b) a Level
2 Impression may be exchanged for one half of a Level 1 Impression or five Level
3 Impressions, (c) a Level 3 Impression may be exchanged for one tenth of a
Level 1 Impression or one fifth of a Level 2 Impression. All redistribution of
Promotions shall be subject to availability, as determined by AOL. Impressions
may be exchanged in blocks of a minimum of 500,000 Impressions. Requests by MP
to redistribute Impressions may be placed no more frequently than once per
quarter. All redistributions and exchanges of Promotions or Impressions shall be
permitted only for Promotions or Impressions (as the case may be) within the
same AOL property (e.g., exchanges of Promotions in CompuServe may be made only
for other Promotions within CompuServe).
B. AOL shall deliver the Sponsorship Impressions Commitment.
C. During the Term, subject to the terms and conditions hereof, the
Keyword for the Affiliated MP Site shall be "AutoConnect," or any successor
brand under which MP markets its principal used car listings service.
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EXHIBIT B
DEFINITIONS
The following definitions will apply to this Agreement:
ADDITIONAL MP CHANNEL. Any other distribution channel (e.g., an Interactive
Service other than AOL) through which MP makes available an offering comparable
in nature to the Affiliated MP Site.
ADVERTISEMENT SERVING FEES. Fees paid to a third party for serving online
advertisements.
ADVERTISING REVENUES. The combination of AOL Advertising Revenues and Internet
Advertising Revenues:
AOL ADVERTISING REVENUES. Aggregate amounts collected plus the fair
market value of any other compensation received (such as barter
advertising) by MP or its agents, as the case may be (provided,
however, that no attempt shall be made to attribute value to any unsold
advertising inventory used by MP to promote the features of the
Affiliated MP Site or the Decision Guide Affiliated Site) arising from
the license or sale of advertisements, promotions, links, listings or
sponsorships ("Advertisements") that appear within any pages of the
Affiliated MP Site or the Decision Guide Affiliated Site which may be
exclusively available to AOL Users, less applicable Advertising Sales
Commissions and Advertisement Serving Fees. AOL Advertising Revenues
does not include amounts arising from Advertisements on any screens or
forms preceding, framing or otherwise directly associated with the
Affiliated MP Site, which will be sold exclusively by AOL.
INTERNET ADVERTISING REVENUES. For each Advertisement on a page of any
MP Interactive Site (including without limitation any pages including
the Decision Guides) which is not exclusively available to AOL Users,
the product of: (a) the amount collected plus the fair market value of
any other compensation received (such as barter advertising) by MP or
its agents (provided, however, that no attempt shall be made to
attribute value to any unsold advertising inventory used by MP for
"house" or barter advertisements from the Parent Company) arising from
the license or sale of such Advertisement attributable to a given
period of time less applicable Advertising Sales Commissions and
Advertisement Serving Fees, and (b) the quotient of (i) Impressions on
the page containing such Advertisement by AOL Users for such period of
time divided by (ii) total Impressions on the page containing such
Advertisement by all users for such period of time (the "Internet
Advertising Quotient") (or such other percentage or formula as is
mutually agreed upon in writing by the Parties). MP will be responsible
for calculating the Internet Advertising Quotient related to Internet
Advertising Revenues (the margin for error of such calculation not to
exceed five percent (5%)); provided, however, that AOL provides MP with
the technical assistance necessary for MP to determine the IP addresses
of AOL Users to enable MP to calculate the Internet Advertising
Revenues).
ADVERTISING SALES COMMISSION. (i) Actual amounts paid as commission (including,
without limitation, any performance-based compensation) to any third party by
either buyer or seller in connection with sale of the Advertisement or (ii) *%
of the gross sales price, in the event the Party has sold the Advertisement
directly and will not be deducting any third party commissions or fees.
AFFILIATED MP SITE. The specific area or web site to be promoted and distributed
by AOL hereunder through which MP can market its Products and related Content.
AOL COMPETITOR. For purposes of Section 5.5 and Exhibit C only: *
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has been requested with respect to the omitted portions.
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* (or any division, subsidiary or affiliate thereof, which such division,
subsidiary or affiliate is an Interactive Service).
AOL INTERACTIVE SITE. Any Interactive Site that is managed, maintained, owned or
controlled by AOL or its agents.
AOL LOOK AND FEEL. The elements of graphics, design, organization, presentation,
layout, user interface, navigation and stylistic convention (including the
digital implementations thereof) which are generally associated with Interactive
Sites within the AOL Service or AOL.com.
AOL MEMBER. Any authorized user of the AOL Service, including any sub-accounts
using the AOL Service under an authorized master account.
AOL NETWORK. (i) The AOL Service, (ii) AOL.com, (iii) CompuServe, and (iv) any
other product or service owned, operated, distributed or authorized to be
distributed by or through AOL or its affiliates worldwide (and including those
properties excluded from the definitions of the AOL Service or AOL.com). It is
understood and agreed that the rights of MP relate only to the AOL Service,
AOL.com, and CompuServe and not generally to the AOL Network.
AOL SERVICE. The standard narrow-band U.S. version of the America Online(R)
brand service, specifically excluding (a) AOL.com or any other AOL Interactive
Site, (b) the international versions of an America Online service (e.g., AOL
Japan), (c) the CompuServe(R) brand service and any other CompuServe products or
services (d) "ICQ(TM)," "AOL NetFind(TM)," "AOL Instant Messenger(TM)," "Digital
City," "NetMail(TM)," "Electra", "Thrive", "Real Fans", "Love@AOL",
"Entertainment Asylum," "Hometown AOL" or any similar independent product,
service or property which may be offered by, through or with the U.S. version of
the America Online(R) brand service, (e) Netscape Netcenter(TM) and any other
Netscape products or services, (f) any programming or Content area offered by or
through the U.S. version of the America Online(R) brand service over which AOL
does not exercise complete operational control (including, without limitation,
Content areas controlled by other parties and member-created Content areas), (g)
any yellow pages, white pages, classifieds or other search, directory or review
services or Content offered by or through the U.S. version of the America
Online(R) brand service, (h) any property, feature, product or service which AOL
or its affiliates may acquire subsequent to the Effective Date and (i) any other
version of an America Online service which is materially different from the
standard narrow-band U.S. version of the America Online brand service, by virtue
of its branding, distribution, functionality, Content and services, including,
without limitation, any co-branded version of the service and any version
distributed through any broadband distribution platform or through any platform
or device other than a desktop personal computer.
AOL THREE SYSTEM. The AOL Service, AOL.com and CompuServe.
AOL USER. Any user of the AOL Service, AOL.com, CompuServe or the AOL Network.
AOL.COM. AOL's primary Internet-based Interactive Site marketed under the
"AOL.COM(TM)" brand, specifically excluding (a) the AOL Service, (b) any
international versions of such site, (c) "ICQ," "AOL NetFind(TM)," "AOL Instant
Messenger(TM)," "NetMail(TM)" or any similar independent product or service
offered by or through such site or any other AOL Interactive Site, (d) any
programming or Content area offered by or through such site over which AOL does
not exercise complete operational control (including, without limitation,
Content areas controlled by other parties and member-created Content areas), (e)
any programming or Content area offered by or through the U.S. version of the
America Online(R) brand service which was operated, maintained or controlled by
the former AOL Studios division (e.g., Electra), (f) Netscape Netcenter(TM) and
any other Netscape products or services, (g) any yellow pages, white pages,
classifieds or other search, directory or review services or Content offered by
or through such site or any other AOL Interactive Site, (h) any property,
feature, product or service which AOL or its affiliates may
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has been requested with respect to the omitted portions.
<PAGE> 19
acquire subsequent to the Effective Date and (i) any other version of an America
Online Interactive Site which is materially different from AOL's primary
Internet-based Interactive Site marketed under the "AOL.COM(TM)" brand, by
virtue of its branding, distribution, functionality, Content and services,
including, without limitation, any co-branded versions and any version
distributed through any broadband distribution platform or through any platform
or device other than a desktop personal computer.
AUCTION SERVICES. A format whereby (i) used cars or services (or groups thereof)
("Items") are sold or traded online, person to person, through (x) the bidding
on such Items by one or more prospective buyers, or (y) the clearing of a price
offered by one or more prospective sellers, and (ii) the price of such Items is
determined by the price paid by the highest bidder or the lowest price offered
by the seller; provided, however, that Classified Advertising shall not be
deemed Auction Services.
CHANGE OF CONTROL. (a) The consummation of a reorganization, merger or
consolidation or sale or other disposition of substantially all of the assets of
a party 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 1933,
as amended) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under such Act) of 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.
CLASSIFIED ADVERTISING. Any person (or entity) to person sales format which
involves only the posting of products to be purchased by an individual (whether
for a flat price or "best offer"), where the hosting entity is not facilitating
or promoting a bidding process, including, without limitation, classifieds and
message board postings.
CLASSIFIED AUTO CATEGORY. Classified listings for used cars contained in the
Classifieds Plus (or similar) area on the AOL Network.
CLASSIFIEDS PLUS. The Classified Plus area (or any successor area) which
integrates all vertical categories of classified listings (e.g., real estate,
employment, general merchandise) on the AOL Three System.
COMPUSERVE. The standard, narrow-band U.S. version of the CompuServe brand
service, specifically excluding (a) any international versions of such service,
(b) any web-based service including "compuserve.com", "cserve.com" and "cs.com",
or any similar product or service offered by or through the U.S. version of the
CompuServe brand service, (c) Content areas owned, maintained or controlled by
CompuServe affiliates or any similar "sub-service," (d) any programming or
Content area offered by or through the U.S. version of the CompuServe brand
service over which CompuServe does not exercise complete or substantially
complete operational control (e.g., third-party Content areas), (e) Netscape
Netcenter(TM) and any other Netscape products or services, (f) any yellow pages,
white pages, classifieds or other search, directory or review services or
Content and (g) any co-branded or private label branded version of the U.S.
version of the CompuServe brand service, (h) any version of the U.S. version of
the CompuServe brand service which offers Content, distribution, services and/or
functionality materially different from the Content, distribution, services
and/or functionality associated with the standard, narrow-band U.S. version of
the CompuServe brand service, including, without limitation, any version of such
service distributed through any platform or device other than a desktop personal
computer and (i) any property, feature, product or service which CompuServe or
its affiliates may acquire subsequent to the Effective Date.
CONFIDENTIAL INFORMATION. Any information relating to or disclosed in the course
of the Agreement, which is or should be reasonably understood to be confidential
or proprietary to the disclosing Party, including, but not limited to, the
material terms of this Agreement, information about AOL Members, AOL Users, AOL
Purchasers and MP customers, technical processes and formulas, source codes,
product designs, sales, cost and other unpublished financial information,
product and business plans, projections, and marketing
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<PAGE> 20
data. "Confidential Information" will not include information (a) already
lawfully known to or independently developed by the receiving Party, (b)
disclosed in published materials, (c) generally known to the public, or (d)
lawfully obtained from any third party.
CONTENT. Text, images, video, audio (including, without limitation, music used
in synchronism or timed relation with visual displays) and other data, Products,
advertisements, promotions, links, pointers and software, including any
modifications, upgrades, updates, enhancements and related documentation.
DECISION GUIDES. The New Car Decision Guide and the Used Car Decision Guide.
DECISION GUIDE AFFILIATED SITE. An interactive area linked to directly from the
AOL Network, created and maintained by AOL using AOL's proprietary technology
that contains a customized version of the Used Car Decision Guide (or any
successor area) (but shall not include the New Car Decision Guide) for AOL Users
designed to assist such AOL Users in selecting a used automobile.
IMPRESSION. User exposure to the applicable Promotion, as such exposure may be
reasonably determined and measured by AOL in accordance with its standard
methodologies and protocols.
INTERACTIVE SERVICE. An entity offering one or more of the following: (i) online
or Internet connectivity services (e.g., an Internet service provider); (ii) an
interactive site or service featuring a broad selection of aggregated third
party interactive content (or navigation thereto) (e.g., an online service or
search and directory service)and/or marketing a broad selection of products
and/or services across numerous interactive commerce categories (e.g., an online
mall or other leading online commerce site); and (iii) communications software
capable of serving as the principal means through which a user creates, sends
and receives electronic mail or real time online messages.
INTERACTIVE SITE. Any interactive site or area, including, by way of example and
without limitation, (i) an MP site on the World Wide Web portion of the Internet
or (ii) a channel or area delivered through a "push" product such as the
Pointcast Network or interactive environment such as Microsoft's Active Desktop.
KEYWORD. The Keyword(TM) terms (i.e., "Keyword:") made available on the AOL
Service for use by AOL Members.
LICENSED CONTENT. All Content offered through the Affiliated MP Site or the
Decision Guides pursuant to this Agreement or otherwise provided by MP or its
agents in connection herewith (e.g., offline or online promotional Content,
Promotions, AOL "slideshows" , etc.), including in each case, any modifications,
upgrades, updates, enhancements, and related documentation. Licensed Content
shall not include Content offered through the Affiliated MP Site or the Decision
Guide Affiliated Site that is provided by AOL or its agents.
MP COMMERCE PARTNER. Insurance providers, financing providers and other
automobile product and service commerce dealers promoted by MP through the
Affiliated MP Site, to the extent allowed under the terms of this Agreement.
MP COMPETITORS. * It is explicitly understood that automobile manufacturers
shall not be deemed MP Competitors.
MP INTERACTIVE SITE. Any Interactive Site (other than the Affiliated MP Site or
the Decision Guide Affiliated Site) which is managed, maintained, owned or
controlled by MP or its agents.
20
* Certain information on this page has been omitted from this filing and filed
separately with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
<PAGE> 21
MP LOOK AND FEEL. The elements of graphics, design, organization, presentation,
layout, user interface, navigation and stylistic convention (including the
digital implementations thereof) which are generally associated with MP
Interactive Sites.
NEW CAR DECISION GUIDE. AOL's proprietary decision guide software, powered by
Personal Logic, which shall assist users in selecting a new automobile.
PARENT COMPANY. Cox Enterprises, Inc. ("CEI"), or any entity in which, as of the
Effective Date hereof, CEI or any successor to CEI directly or indirectly owns
any significant equity interest (excluding passive investment interests (e.g.,
via mutual funds or similar investments).
PRODUCT. Any product, good or service which MP or any MP Commerce Partner
offers, sells, provides, distributes or licenses to AOL Users directly or
indirectly through (i) the Affiliated MP Site (including through any Interactive
Site linked thereto), (ii) the Decision Guides, (iii) any other electronic means
directed at AOL Users (e.g., e-mail offers), or (iv) an "offline" means (e.g.,
toll-free number) for receiving orders related to specific offers within the
Affiliated MP Site requiring purchasers to reference a specific promotional
identifier or tracking code, including, without limitation, products sold
through surcharged downloads (to the extent expressly permitted hereunder).
REMNANT ADVERTISING. Unsold advertising inventory on the AOL Three System that
is sold on an untargeted basis at a substantial discount.
RUN OF SERVICE ADVERTISING. Untargeted advertising that runs on a rotation basis
throughout the AOL Three System.
SPONSORSHIP IMPRESSIONS COMMITMENT. The Classifieds Plus Sponsorship Impressions
Commitment and the DGAS Sponsorship Impressions Commitment, each as defined in
Section 1.2.1 hereof .
TOOL BAR. As defined in Section 2.2 hereof.
USED CAR DECISION GUIDE. AOL's proprietary decision guide software, powered by
Personal Logic, which shall assist users in selecting a used automobile.
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<PAGE> 22
EXHIBIT C
MP CROSS-PROMOTION
A. Except as specified below, within each MP Interactive Site, MP shall
include the following (collectively, the "AOL Promos"): either (i) a
prominent promotional banner or button (either 90 x 30 pixels or 70 x
70 pixels in size) appearing on the first screen of the MP Interactive
Site (the placement of which shall be at MP's discretion, provided that
MP shall consult with AOL regarding the placement of such promotional
banner or button) to promote such AOL products or services as AOL may
designate (for example, the America Online(TM) brand service, the
CompuServe(TM) brand service, the AOL.com(TM) site, or the AOL Instant
Messenger(TM) service); or (ii) a prominent "Try AOL" feature (either
90 x 30 pixels or 70 x 70 pixels in size) appearing on the first screen
of the MP Interactive Site (the placement of which shall be at MP's
discretion, provided that MP shall consult with AOL regarding the
placement of such promotional feature) through which users can obtain
promotional information about AOL products or services designated by
AOL and, at AOL's option, download or order the then-current version of
client software for such AOL products or services; provided, however,
that no such MP Interactive Site shall be required to contain the AOL
Promos described in (i) or (ii) above if such AOL Promos promote any
Digital City product or service. To the extent technically practicable,
AOL will serve the AOL Promos to the MP Interactive Site from an ad
server controlled by AOL or its agent, and MP shall take all reasonable
operational steps necessary to facilitate such ad serving arrangement
including, without limitation, inserting HTML code designated by AOL on
the pages of the MP Interactive Site on which the AOL Promos will
appear; provided, that if AOL it is not technically practicable for AOL
to serve such AOL Promos to the MP Interactive Site, AOL will provide
the creative content to be used in the AOL Promos (including
designation of links) and MP shall post (or update, as the case may be)
the creative content supplied by AOL within the spaces for the AOL
Promos within five days of its receipt of such content from AOL. In
addition, if it is not technically practicable for AOL to serve the AOL
Promos to the MP Interactive Site and without limiting any other
reporting obligations of the Parties contained herein, MP shall provide
AOL with monthly written reports regarding the AOL Promos in a format
mutually agreed upon by the parties. In addition, MP shall include the
Keyword granted to MP hereunder on the first page of each MP
Interactive Site, below the AOL Promos referenced in clauses (i) and
(ii) above. To the extent MP creates a version of an MP Interactive
Site which is a co-branded or private labeled version over which a
third party has significant approval rights or to the extent MP has a
distribution agreement with a third party that is an AOL Competitor, MP
will request that such third party agree to promote AOL as described in
this paragraph (but if, despite MP's efforts, MP is not able to promote
AOL as described, MP will not be deemed in breach of this paragraph).
AOL agrees to credit MP with an acquisition fee (an "Subscriber
Acquisition Fee") of * dollars ($*) for each subscriber who registers
with the AOL service based on the promotions described in this Exhibit
C, provided that such registrant remains an AOL user account for at
least ninety (90) days following such registration (collectively, a
"Paying Subscriber"). AOL shall provide MP with quarterly reports
(within thirty (30) days following the end of each quarter during the
Term) of the number of Paying Subscribers resulting in such quarter,
and the relevant Subscriber Acquisition Fees for each such quarter
shall be credited to MP within ten (10) days of the delivery of such
quarterly report.
B. In MP's print and "out of home" (e.g., buses and billboards)
advertisements and in any print and "out of home" publications,
programs, features or other forms of media over which MP exercises at
least partial editorial control (collectively, the "Out of Home
Advertisements"), MP's listing of the navigational reference (e.g.,
"URL") for any MP Interactive Site will be accompanied by an equally
prominent listing of the "Keyword" term (e.g., "AOL Keyword:
AutoConnect") on AOL for the Affiliated MP Site. To the extent that MP
makes any reference to any MP Interactive Site (other than the
Interactive Sites belonging to the Parent Company (and not directly to
MP)), MP will ensure that AOL is more prominently promoted on any such
Out of Home Ads than any such other Interactive Service.
22
* Certain information on this page has been omitted from this filing and filed
separately with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
<PAGE> 23
C. In MP's television and radio advertisements and in any television or
radio publications, programs, features or other forms of media over
which MP exercises at least partial editorial control (collectively,
the "TV and Radio Advertisements"), MP will consider including specific
references or mentions (verbally where possible) of the availability of
the Affiliated MP Site through the AOL Network; provided, that MP shall
include such references or mentions in at least * percent (*%) of such
TV and Radio Advertisements. Without limiting the generality of the
foregoing, MP will use commercially reasonable efforts to ensure that
MP's listing of the "URL" for any MP Interactive Site will be
accompanied by an equally prominent listing of the "Keyword" term on
AOL for the Affiliated MP Site.
23
* Certain information on this page has been omitted from this filing and filed
separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
<PAGE> 24
EXHIBIT D
DESCRIPTION OF PRODUCTS AND OTHER CONTENT
MP PROVIDES INFORMATION AND SERVICES TO ASSIST THE CONSUMER IN THE PROCESS OF
SHOPPING FOR, PURCHASING , AND OWNING A USED CAR. FEATURES OF THE SERVICE
CURRENTLY (OR WILL SHORTLY) INCLUDE (IN EACH CASE, ONLY IF AND TO THE EXTENT
RELATED TO AUTOMOBILES):
- CAR LISTINGS
- CAR RATINGS, REVIEWS, AND SPECS
- CAR PRICE INFORMATION (E.G. KELLEY BLUE BOOK)
- DECISION GUIDES
- INSURANCE AND WARRANTY REFERRALS, QUOTES, AND ARTICLES
- FINANCING RATES (E.G. FROM BANK RATE MONITOR), QUOTES, LOANS
- LOAN AND LEASE CALCULATORS
- CONSUMER CREDIT REPORTS
- VEHICLE HISTORY REPORTS
- CAR DEALER DIRECTORY
- LOCATION MAPPING SERVICE
- TIPS FOR BUYING AND SELLING CARS
- CAR OWNERSHIP MAINTENANCE REMINDER
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EXHIBIT E
OPERATIONS
1. General. The Affiliated MP Site (including the Products and other
Content contained therein) will be in the top three (3) in the online used car
listing industry, as determined by each of the following methods: (a) based on
a cross-section of third-party reviewers who are recognized authorities in such
industry and (b) with respect to all material quality averages or standards in
such industry, including each of the following: (i) breadth and depth of Content
offered, (ii) scope and selection of Products, (iii) customer service and (v)
ease of use. In addition, the Affiliated MP Site will, with respect to each of
the measures listed above, be competitive in all respects with the used car
offerings of any MP Competitors.
2. Affiliated MP Site Infrastructure. MP will be responsible for all
communications, hosting and connectivity costs and expenses associated with the
Affiliated MP Site. MP will provide all hardware, software, telecommunications
lines and other infrastructure necessary to meet traffic demands on the
Affiliated MP Site from the AOL Network. MP will design and implement its
connection to the network between the AOL Service and Affiliated MP Site such
that (i) no single component failure will have a materially adverse impact on
AOL Users seeking to reach the Affiliated MP Site from the AOL Network and (ii)
no single line will run at more than 70% average utilization for a 5-minute peak
in a daily period. In this regard, MP will provide AOL, upon request, with a
detailed network diagram regarding the network infrastructure supporting the
Affiliated MP Site. In the event that MP elects to create a custom version of
the Affiliated MP Site in order to comply with the terms of this Agreement, MP
will bear responsibility for all aspects of the implementation, management and
cost of such customized site.
3. Optimization; Speed. MP will use commercially reasonable efforts to
ensure that: (a) the functionality and features within the Affiliated MP Site
are optimized for the client software then in use by AOL Members; and (b) the
Affiliated MP Site is designed and populated in a manner that minimizes delays
when AOL Users attempt to access such site. In order to assist MP in satisfying
the requirements of this Section 3, AOL shall provide information as may be
reasonably necessary to implement the functionality of the Affiliated MP Site.
At a minimum, MP will ensure that the Affiliated MP Site's data transfers
initiate within fewer than fifteen (15) seconds from receipt of the user query
on average. Prior to commercial launch of any material promotions described
herein, MP will permit AOL to conduct performance and load testing of the
Affiliated MP Site (in person or through remote communications), with such
commercial launch not to commence until such time as AOL is reasonably satisfied
with the results of any such testing.
4. User Interface. MP will maintain a graphical user interface within the
Affiliated MP Site that is competitive in all material respects with interfaces
of other similar sites based on similar form technology. AOL reserves the right
to review and approve the user interface and site design prior to launch of the
Promotions and to assess compliance with respect to MP's compliance with the
preceding sentence.
5. Technical Problems. MP agrees to use commercially reasonable efforts to
address material technical problems (over which MP exercises control) affecting
use by AOL Users of the Affiliated MP Site (a "MP Technical Problem") promptly
following notice thereof. In the event that MP is unable to promptly resolve a
MP Technical Problem following notice thereof from AOL (including, without
limitation, infrastructure deficiencies producing user delays), AOL will have
the right to regulate the promotions it provides to MP hereunder until such time
as MP corrects the MP Technical Problem at issue.
6. Monitoring. MP will ensure that the performance and availability of the
Affiliated MP Site is monitored on a continuous basis. MP will provide AOL with
contact information (including e-mail, phone, pager and fax information, as
applicable, for both during and after business hours) for MP's principal
business and technical representatives, for use in cases when issues or problems
arise with respect to the Affiliated MP Site.
7. Telecommunications. The Parties agree to explore encryption methodology
to secure data communications between the Parties' data centers. The network
between the Parties will be configured such that no single component failure
will significantly impact AOL Users. The network will be sized such that no
single line runs at more than 70% average utilization for a 5-minute peak in a
daily period.
8. Technical Performance.
i. MP will design the Affiliated MP Site to support the
AOL-client embedded versions of the Microsoft Internet
Explorer 3.0 and 4.0 browsers (Windows and Macintosh), the
Macintosh version of the Microsoft Internet Explorer 3.0, and
make commercially reasonable efforts to support all other AOL
browsers listed at: "http://webmaster.info.aol.com/BrowTable.
html."
ii. To the extent MP creates customized pages on the Affiliated MP
Site for AOL Users, MP will configure the server from which it
serves the site to examine the HTTP User-Agent field in order
to identify the "AOL Member-Agents" listed at:
"http://webmaster. info.aol.com/Brow2Text.html."
iii. MP will periodically review the technical information made
available by AOL at http://webmaster.info.aol.com.
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iv. MP will design its site to support HTTP 1.0 or later protocol
as defined in RFC 1945 and to adhere to AOL's parameters for
refreshing cached information listed at
http://webmaster.info.aol.com.
v. Prior to releasing material, new functionality or features
through the Affiliated MP Site ("New Functionality"), MP will
use commercially reasonable efforts to either (i) test the New
Functionality to confirm its compatibility with AOL Service
client software or (ii) provide AOL with written notice of the
New Functionality so that AOL can perform tests of the New
Functionality to confirm its compatibility with the AOL
Service client software.
9. AOL Internet Services MP Support. AOL will provide MP with access to
the standard online resources, standards and guidelines documentation, technical
phone support, monitoring and after-hours assistance that AOL makes generally
available to similarly situated web-based partners. AOL support will not, in any
case, be involved with content creation on behalf of MP or support for any
technologies, databases, software or other applications which are not supported
by AOL or are related to any MP area other than the Affiliated MP Site. Support
to be provided by AOL is contingent on MP providing to AOL demo account
information (where applicable), a detailed description of the Affiliated MP
Site's software, hardware and network architecture and access to the Affiliated
MP Site for purposes of such performance and load testing as AOL elects to
conduct.
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EXHIBIT F
STANDARD ONLINE COMMERCE TERMS & CONDITIONS
1. AOL Network Distribution. MP will not authorize or permit any third
party to distribute or promote the Products or any MP Interactive Site through
the AOL Network absent AOL's prior written approval. The Promotions and any
other promotions or advertisements purchased from or provided by AOL will link
only to the Affiliated MP Site, will be used by MP solely for its own benefit
and will not be resold, traded, exchanged, bartered, brokered or otherwise
offered to any third party.
2. Provision of Other Content. In the event that AOL notifies MP that (i)
as reasonably determined by AOL, any Content within the Affiliated MP Site
violates AOL's then-standard Terms of Service (as set forth on the America
Online(R) brand service at Keyword term "TOS"), the terms of this Agreement or
any other standard, written AOL policy or (ii) AOL reasonably objects to the
inclusion of any Content within the Affiliated MP Site (other than any specific
items of Content which may be expressly identified in this Agreement), then MP
will take commercially reasonable steps to block access by AOL Users to such
Content using MP's then-available technology. In the event that MP cannot,
through its commercially reasonable efforts, block access by AOL Users to the
Content in question, then MP will provide AOL prompt written notice of such
fact. AOL may then, at its option, restrict access from the AOL Network to the
Content in question using technology available to AOL. MP will cooperate with
AOL's reasonable requests to the extent AOL elects to implement any such access
restrictions.
3. Contests. MP will take all steps necessary to ensure that any contest,
sweepstakes or similar promotion conducted or promoted through the Affiliated MP
Site (a "Contest") complies with all applicable federal, state and local laws
and regulations.
4. Navigation. Subject to the prior consent of MP, which consent will not
be unreasonably withheld, AOL will be entitled to establish navigational icons,
links and pointers connecting the Affiliated MP Site (or portions thereof) with
other content areas on the AOL Network (with the exception of DCI).
Additionally, in cases where an AOL User performs a search for MP through any
search or navigational tool or mechanism that is accessible or available through
the AOL Network (e.g., Promotions, Keyword, or any other similar promotions or
navigational tools), AOL shall have the right to direct such AOL User to the
Affiliated MP Site.
5. Disclaimers. Upon AOL's request, MP agrees to include within the
Affiliated MP Site a product disclaimer (the specific form and substance to be
mutually agreed upon by the Parties) indicating that transactions are solely
between MP and AOL Users purchasing Products from MP.
6. AOL Look and Feel. MP acknowledges and agrees that AOL will own all
right, title and interest in and to the elements of graphics, design,
organization, presentation, layout, user interface, navigation and stylistic
convention (including the digital implementations thereof) which are generally
associated with online areas contained within the AOL Network, and to the Tool
Bar, subject to MP's ownership rights in any MP trademarks or copyrighted
material within the Affiliated MP Site or the Decision Guide Affiliated Site.
7. MP Look and Feel. AOL acknowledges and agrees that MP will own all
right, title and interest in and to the elements of graphics, design,
organization, presentation, layout, user interface, navigation and stylistic
convention (including the digital implementations thereof) which are generally
associated with the MP Interactive Sites or the Affiliated MP Site, subject to
AOL's ownership rights in any AOL trademarks or copyrighted material of AOL
included within the Affiliated MP Site or the Decision Guide Affiliated Site,
and subject to AOL's ownership rights in the Tool Bar and any AOL trademarks or
copyrighted material of AOL included therein.
8. Management of the Affiliated MP Site and the Decision Guide Affiliated
Site. MP will manage, review, delete, edit, create, update and otherwise manage
all Content available on or through the Affiliated MP Site, and any Content MP
is responsible for supplying to AOL hereunder for the Decision Guide Affiliated
Site, in a timely and professional manner and in accordance with the terms of
this Agreement. MP will take commercially reasonable efforts to ensure that the
Affiliated MP Site is current, accurate and well-organized at all times. MP
warrants that the Products and other Licensed Content that MP places on the
Affiliated MP Site, or the Decision Guide Affiliated Site: (i) will not infringe
on or violate any copyright, trademark, U.S. patent or any other third party
right, including without limitation, any music performance or other
music-related rights; (ii) will not violate AOL's then-applicable Terms of
Service; and (iii) will not violate any applicable law or regulation, including
those relating to contests, sweepstakes or similar promotions. MP also warrants
that a reasonable basis exists for all Product performance or comparison claims
appearing on the Affiliated MP Site. MP shall not in any manner, including,
without limitation in any Promotion, the Licensed Content or the Materials state
or imply that AOL recommends or endorses MP or MP's services (e.g., no
statements that MP is an "official" or "preferred" provider of products or
services for AOL); provided, however, that MP shall be permitted to make
statements that it is the exclusive provider of the Exclusive Service on the AOL
Three System, subject to the terms of this Agreement. AOL will have no
obligations with respect to the Products available on or through the Affiliated
MP Site, including, but not limited to, any duty to review or monitor any such
Products.
9. AOL Management. AOL will make commercially reasonable efforts to
manage, review, delete, edit, create, update and otherwise manage the Decision
Guide Affiliated Site, in a timely and professional
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manner and in accordance with the terms of this Agreement. AOL also will make
commercially reasonable efforts to ensure that the Decision Guide Affiliated
Site is current, accurate and well-organized at all times. AOL warrants that any
Content that it contributes to the Affiliated MP Site or to the Decision Guide
Affiliated Site: (i) will not infringe on or violate any copyright, trademark,
U.S. patent or any other third party right, including without limitation, any
music performance or other music-related rights; (ii) will not violate AOL's
then-applicable Terms of Service; and (iii) will not violate any applicable law
or regulation, including those relating to contests, sweepstakes or similar
promotions. AOL also warrants that a reasonable basis exists for all Product
performance or comparison claims that it may place on the Decision Guide
Affiliated Site or sections of the AOL Three System that link to the Affiliated
MP Site.
10. Duty to Inform. MP will promptly inform AOL of any information related
to the Affiliated MP Site which could reasonably lead to a claim, demand, or
liability of or against AOL and/or its affiliates by any third party. AOL will
promptly inform MP of any information (of which it has actual knowledge) that is
related to the Decision Guide Affiliated Site or to the AOL Three System which
could reasonably lead to a claim, demand or liability against or of MP and/or
its affiliates by any third party.
11. Customer Service. MP will bear full responsibility for all customer
service related to the Affiliated MP Site, and AOL will have no obligations
whatsoever with respect thereto. MP will receive all emails from Customers via a
computer available to MP's customer service staff and will make commercially
reasonable efforts to respond to such emails within one business day of receipt.
MP will comply with the requirements of any federal, state or local consumer
protection or disclosure law.
12. Production Work. In the event that MP requests AOL's production
assistance in connection with (i) ongoing programming and maintenance related to
the Affiliated MP Site, (ii) a redesign of or addition to the Affiliated MP Site
(e.g., a change to an existing screen format or construction of a new custom
form), (iii) production to modify work performed by a third party provider or
(iv) any other type of production work, MP will work with AOL to develop a
detailed production plan for the requested production assistance (the
"Production Plan"). Following receipt of the final Production Plan, AOL will
notify MP of (i) AOL's availability to perform the requested production work,
(ii) the proposed fee or fee structure for the requested production and
maintenance work and (iii) the estimated development schedule for such work. To
the extent the Parties reach agreement regarding implementation of the
agreed-upon Production Plan, such agreement will be reflected in a separate work
order signed by the Parties. To the extent MP elects to retain a third party
provider to perform any such production work, work produced by such third party
provider must generally conform to AOL's standards & practices (as provided on
the America Online brand service at Keyword term "styleguide"). The specific
production resources which AOL allocates to any production work to be performed
on behalf of MP will be as determined by AOL in its sole discretion; provided,
however, that in the case of the Decision Guide Affiliated Site, the Parties
shall mutually agree on the production resources to be allocated to any
production work thereon.
13. Overhead Accounts. To the extent AOL has granted MP any overhead
accounts on the AOL Service, MP will be responsible for the actions taken under
or through its overhead accounts, which actions are subject to AOL's applicable
Terms of Service and for any surcharges, including, without limitation, all
premium charges, transaction charges, and any applicable communication
surcharges incurred by any overhead Account issued to MP, but MP will not be
liable for charges incurred by any overhead account relating to AOL's standard
monthly usage fees and standard hourly charges, which charges AOL will bear.
Upon the termination of this Agreement, all overhead accounts, related screen
names and any associated usage credits or similar rights, will automatically
terminate. AOL will have no liability for loss of any data or content related to
the proper termination of any overhead account.
14. Navigation Tools. Any Keyword to be directed to the Affiliated MP Site
shall be (i) subject to availability for use by MP and (ii) limited to the
combination of the Keyword(TM) search modifier combined with a bona fide or
registered trademark of MP. AOL reserves the right to revoke at any time MP's
use of any Keyword which do not incorporate bona fide or registered trademarks
of MP. MP acknowledges that its utilization of a Keyword will not create in it,
nor will it represent it has, any right, title or interest in or to such
Keyword, other than the right, title and interest MP holds in MP's bona fide or
registered trademark independent of the Keyword. Without limiting the generality
of the foregoing, MP will not: (a) attempt to register or otherwise obtain
trademark or copyright protection in the Keyword (unless such Keyword is also a
bona fide trademark of MP); or (b) use the Keyword, except for the purposes
expressly required or permitted under this Agreement. To the extent AOL allows
AOL Users to "bookmark" the URL or other locator (e.g., in "Favorite Places")
for the Affiliated MP Site, such bookmarks will be subject to AOL's control at
all times. Upon the termination of this Agreement, MP's rights to any Keyword
and bookmarking will terminate.
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EXHIBIT G
STANDARD LEGAL TERMS & CONDITIONS
1. Promotional Materials/Press Releases. Each Party will submit to the
other Party, for its prior written approval, which will not be
unreasonably withheld or delayed, any marketing, advertising, press
releases, and all other promotional materials related to the Affiliated
MP Site and/or referencing the other Party and/or its trade names,
trademarks, and service marks (the "Materials"); provided, however,
that either Party's use of screen shots of the Affiliated MP Site for
promotional purposes will not require the approval of the other Party
so long as America Online(R) is clearly identified as the source of
such screen shots and AutoConnect(R) is clearly identified as the
creator of the site pictured in the screen shot (if applicable); and
provided further, however, that, following the initial public
announcement of the business relationship between the Parties in
accordance with the approval and other requirements contained herein,
either Party's subsequent factual reference to the existence of a
business relationship between the Parties will not require the approval
of the other Party. Each Party will solicit and reasonably consider the
views of the other Party in designing and implementing such Materials.
Once approved, the Materials may be used by a Party and its affiliates
for the purpose of promoting the Affiliated MP Site and the content
contained therein and reused for such purpose until such approval is
withdrawn with reasonable prior notice. In the event such approval is
withdrawn, existing inventories of Materials may be depleted.
Notwithstanding the foregoing, either Party may issue press releases
and other disclosures as required by law or as reasonably advised by
legal counsel without the consent of the other Party and in such event,
the disclosing Party will provide reasonable prior written notice of
such disclosure to the other Party.
2. License. MP hereby grants AOL a non-exclusive worldwide license to
market, distribute, reproduce, display, perform and promote the
Licensed Content through the Affiliated MP Site or the Decision Guide
Affiliated Site in accordance with the terms of this Agreement. In
addition, AOL Users will have the right to access and use the
Affiliated MP Site and the Decision Guide Affiliated Site.
3. Trademark License. In designing and implementing the Materials and
subject to the other provisions contained herein, MP will be entitled
to use the following trade names, trademarks, and service marks of AOL:
the "America Online(R)" brand service, "AOL(TM)" service/software and
AOL's triangle logo, AOL.com, CompuServe and Decision Guide; and AOL
and its affiliates will be entitled to use the trade names, trademarks,
and service marks of MP (e.g., "AutoConnect(R)") for which MP holds all
rights necessary for use in connection with this Agreement
(collectively, together with the AOL marks listed above, the "Marks");
provided that each Party: (i) does not create a unitary composite mark
involving a Mark of the other Party without the prior written approval
of such other Party; and (ii) displays symbols and notices clearly and
sufficiently indicating the trademark status and ownership of the other
Party's Marks in accordance with applicable trademark law and practice.
4. Ownership of Trademarks. Each Party acknowledges the ownership right of
the other Party in the Marks of the other Party and agrees that all use
of the other Party's Marks will inure to the benefit, and be on behalf,
of the other Party. Each Party acknowledges that its utilization of the
other Party's Marks will not create in it, nor will it represent it
has, any right, title, or interest in or to such Marks other than the
licenses expressly granted herein. Each Party agrees not to do anything
contesting or impairing the trademark rights of the other Party.
5. Quality Standards. Each Party agrees that the nature and quality of its
products and services supplied in connection with the other Party's
Marks will conform to quality standards set by the other Party. Each
Party 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 Party will comply with all
applicable laws, regulations, and customs and obtain any applicable
government approvals pertaining to use of the other Party's marks.
Should either Party find objectionable any use of its Marks by the
other Party, such Party shall have the right to revoke, with respect to
the objectionable use, the rights granted to the other Party under this
Agreement to use the any such Marks, and the other Party shall
immediately cease using such Marks in the manner found objectionable by
the Party owning such Marks.
6. Infringement Proceedings. Each Party agrees to promptly notify the
other Party of any unauthorized use of the other Party's Marks of which
it has actual knowledge. Each Party will have the sole right and
discretion to bring proceedings alleging infringement of its Marks or
unfair competition related thereto; provided, however, that each Party
agrees to provide the other Party with its reasonable cooperation and
assistance with respect to any such infringement proceedings. The costs
and expenses involved in any such infringement proceedings shall be the
responsibility of the party bringing the proceeding.
7. Representations and Warranties. Each Party represents and warrants to
the other Party that: (i) such Party has the full corporate right,
power and authority to enter into this Agreement 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 and will 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
against such Party 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. MP hereby represents and
warrants that it possesses all
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authorizations, approvals, consents, licenses, permits, certificates
or other rights and permissions necessary to provide the Exclusive
Service.
8. Confidentiality. Each Party acknowledges that Confidential Information
may be disclosed to the other Party during the course of this
Agreement. Each Party agrees that it will take reasonable steps, at
least substantially equivalent to the steps it takes to protect its own
proprietary information, during the term of this Agreement, and for a
period of two (2) years following expiration or termination of this
Agreement, to prevent the duplication or disclosure of Confidential
Information of the other Party, other than by or to its employees or
agents who must have access to such Confidential Information to perform
such Party's obligations hereunder, who will each agree to comply with
this section. Notwithstanding the foregoing, either Party may issue a
press release or other disclosure containing Confidential Information
without the consent of the other Party, to the extent such disclosure
is required by law, rule, regulation or government or court order. In
such event, the disclosing Party will provide reasonable prior written
notice of such proposed disclosure to the other Party. Further, in the
event such disclosure is required of either Party under the laws, rules
or regulations of the Securities and Exchange Commission or any other
applicable governing body, such Party will (i) redact mutually
agreed-upon portions of this Agreement to the fullest extent permitted
under applicable laws, rules and regulations and (ii) submit a request
to such governing body that such portions and other provisions of this
Agreement receive confidential treatment under the laws, rules and
regulations of the Securities and Exchange Commission or otherwise be
held in the strictest confidence to the fullest extent permitted under
the laws, rules or regulations of any other applicable governing body.
9. Limitation of Liability; Disclaimer; Indemnification.
(A) LIABILITY. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO
THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY
DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, THE SALE OF PRODUCTS, THE USE OR
INABILITY TO USE THE AOL NETWORK, THE AOL SERVICE, AOL.COM OR THE AFFILIATED MP
SITE, THE DECISION GUIDES, THE DECISION GUIDE AFFILIATED SITE OR ARISING FROM
ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF
REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY, "DISCLAIMED
DAMAGES"); PROVIDED THAT EACH PARTY WILL REMAIN LIABLE TO THE OTHER PARTY TO THE
EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO
INDEMNIFICATION PURSUANT TO SECTION 9(C). EXCEPT AS PROVIDED IN SECTION 9(C),
(I) LIABILITY ARISING UNDER THIS AGREEMENT WILL BE LIMITED TO DIRECT,
OBJECTIVELY MEASURABLE DAMAGES, AND (II) THE MAXIMUM LIABILITY OF ONE PARTY TO
THE OTHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL
NOT EXCEED THE AGGREGATE AMOUNT OF ALL PAYMENTS MADE UNDER THIS AGREEMENT IN THE
YEAR IN WHICH THE EVENT GIVING RISE TO LIABILITY OCCURS; PROVIDED THAT EACH
PARTY WILL REMAIN LIABLE FOR THE AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS
OWED TO THE OTHER PARTY PURSUANT TO THE AGREEMENT.
(B) NO ADDITIONAL WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS
ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AOL
NETWORK, THE AOL SERVICE, AOL.COM, THE DECISION GUIDES, THE DECISION GUIDE
AFFILIATED SITE OR THE AFFILIATED MP SITE, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES
ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, AOL SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING
THE PROFITABILITY OF THE AFFILIATED MP SITE.
(c) Indemnity. Either Party will defend, indemnify, save and hold
harmless the other Party and the officers, directors, agents, affiliates,
distributors, franchisees and employees of the other Party from any and all
third party claims, demands, liabilities, costs or expenses, including
reasonable attorneys' fees ("Liabilities"), resulting from the indemnifying
Party's material breach of any duty, representation, or warranty of this
Agreement.
10. Claims. If a Party entitled to indemnification hereunder (the
"Indemnified Party") becomes aware of any matter it believes is indemnifiable
hereunder involving any claim, action, suit, investigation, arbitration or other
proceeding against the Indemnified Party by any third party (each an "Action"),
the Indemnified Party will give the other Party (the "Indemnifying Party")
prompt written notice of such Action. Such notice will (i) provide the basis on
which indemnification is being asserted and (ii) be accompanied by copies of all
relevant pleadings, demands, and other papers related to the Action and in the
possession of the Indemnified Party. The Indemnifying Party will have a period
of ten (10) days after delivery of such notice to respond. If the Indemnifying
Party elects to defend the Action or does not respond within the requisite ten
(10) day period, the Indemnifying Party will be obligated to defend the Action,
at its own expense, and by counsel reasonably satisfactory to the Indemnified
Party. The Indemnified Party will cooperate, at the expense of the Indemnifying
Party, with the Indemnifying Party and its counsel in the defense and the
Indemnified Party will have the right to participate fully, at its own expense,
in the defense of such Action. If the Indemnifying Party responds within the
required ten (10) day period and elects not to defend such Action, the
Indemnified Party will be free, without prejudice to any of the Indemnified
Party's rights hereunder, to compromise or defend (and
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control the defense of) such Action, all Liabilities and any amount paid by the
Indemnified Party in compromise of the Action to be paid by the Indemnifying
Party. In such case, the Indemnifying Party will cooperate, at its own expense,
with the Indemnified Party and its counsel in the defense against such Action
and the Indemnifying Party will have the right to participate fully, at its own
expense, in the defense of such Action. Any compromise or settlement of an
Action will require the prior written consent of both Parties hereunder, such
consent not to be unreasonably withheld or delayed.
11. Acknowledgment. AOL and MP each acknowledges that the provisions of
this Agreement were negotiated to reflect an informed, voluntary allocation
between them of all risks (both known and unknown) associated with the
transactions contemplated hereunder. The limitations and disclaimers related to
warranties and liability contained in this Agreement are intended to limit the
circumstances and extent of liability. The provisions of this Section 11 will be
enforceable independent of and severable from any other enforceable or
unenforceable provision of this Agreement.
12. Solicitation of AOL Users. During the term of the Agreement and for a
two year period thereafter, MP will not use the AOL Network (including, without
limitation, the e-mail network contained therein) to solicit AOL Users on behalf
of another Interactive Service. More generally, MP 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 User to whom commercial e-mail is
being sent has voluntarily either (i) engaged in a transaction with MP or (ii)
provided information to MP through a contest, registration, or other
communication, which included clear notice to the AOL User that the information
provided could result in commercial e-mail being sent to that AOL User by MP or
its agents. Any commercial e-mail communications to AOL Users which are
otherwise permitted hereunder, will (a) include a prominent and easy means to
"opt-out" of receiving any future commercial e-mail communications from MP, and
(b) 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).
13. AOL User Communications. To the extent that MP is permitted to
communicate with AOL Users under Section 15 of this Exhibit G, in any such
communications (on or off the Affiliated MP Site (including without limitation,
by e-mail)) (A) to specific AOL Users based on contact or other information
obtained by MP as a direct or indirect result of this Agreement, or (B) targeted
specifically to AOL Users as a group, MP will not encourage AOL Users to take
any action inconsistent with the scope and purpose of this Agreement, including
without limitation, the following actions: (i) using an Interactive Site other
than the Affiliated MP Site for the purchase of Products or provision of
Services (except for any links to the MP Commerce Partners within the Affiliated
MP Site, if and to the extent permitted by this Agreement), (ii) using Content
other than the Licensed Content; (iii) bookmarking of Interactive Sites; or (iv)
changing the default home page on the AOL browser. Additionally, with respect to
such AOL User communications, in the event that MP encourages an AOL User to
purchase products through such communications, MP shall ensure that (a) the AOL
Network is promoted as the primary means through which the AOL User can access
the Affiliated MP Site and (b) any link to the Affiliated MP Site will link to a
page which indicates to the AOL User that such user is in a site which is
affiliated with the AOL Network.
14. Collection and use of User Information. MP shall ensure that its
collection, use and disclosure of information obtained from AOL Users obtained
as a direct or indirect result of this Agreement ("User Information") complies
with (i) all applicable laws and regulations and (ii) in the case of the
Affiliated MP Site, MP's standard privacy policies so long as such policies are
prominently published on the site and provide adequate notice, disclosure and
choice to users regarding MP's collection, use and disclosure of user
information. MP will not disclose User Information collected hereunder to any
third party in a manner that identifies AOL Users as end users of an AOL product
or service or use AOL User Information collected under this Agreement to market
another Interactive Service; provided that MP may advise car dealers which are
strategic partners of MP (but not any individuals) of other Internet access
methods that are compatible with the Parent Company's Manheim Online service.
AOL expressly acknowledges and agrees that this Section 14 shall not require any
other MP Interactive Site to comply with such AOL privacy policies.
15. Excuse. Neither Party 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 any causes or conditions which are
beyond such Party's reasonable control and which such Party is unable to
overcome by the exercise of reasonable diligence.
16. Independent Contractors. The Parties to this Agreement are independent
contractors. Neither Party is an agent, representative or employee of the other
Party. Neither Party will have any right, power or authority to enter into any
agreement for or on behalf of, or incur any obligation or liability of, or to
otherwise bind, the other Party. This Agreement will not be interpreted or
construed to create an association, agency, joint venture or partnership between
the Parties or to impose any liability attributable to such a relationship upon
either Party.
17. Notice. Any notice, approval, request, authorization, direction or
other communication under this Agreement will be given in writing and will be
deemed to have been delivered and given for all purposes (i) on the delivery
date if delivered by electronic mail (to screenname "[email protected]" in the
case of AOL) or by confirmed facsimile; (ii) on the delivery date if delivered
personally to the Party to whom the same is directed; (iii) one business day
after deposit with a commercial overnight carrier, with written verification of
receipt; or (iv) five business days after the mailing date, whether or not
actually received, if sent by U.S. mail, return receipt
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requested, postage and charges prepaid, or any other means of rapid mail
delivery for which a receipt is available. In the case of AOL, such notice will
be provided to both the Senior Vice President for Business Affairs (phone no.
703-265-1000, fax no. 703-265-1206) and the Deputy General Counsel (phone no.
703-265-1000, fax no. 703-265-1105), each at the address of AOL set forth in the
first paragraph of this Agreement. In the case of MP, such notice will be
provided to Andrew Drake (phone no. 404-843-7423, fax no. 404-843-7412, email
address [email protected]) at the address for MP set forth in the
first paragraph of this Agreement, with a copy to Jonathan Hart, Esq. (phone no.
202-776-2000, fax no. 202-776-2222, email address: [email protected]) at Dow,
Lohnes & Albertson, P.L.L.C., 1200 New Hampshire Avenue, N.W., Washington, D.C.
20036.
18. No Waiver. The failure of either Party to insist upon or enforce strict
performance by the other Party of any provision of this Agreement or to exercise
any right under this Agreement will not be construed as a waiver or
relinquishment to any extent of such Party's right to assert or rely upon any
such provision or right in that or any other instance; rather, the same will be
and remain in full force and effect.
19. Return of Information. Upon the expiration or termination of this
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 specified the other Party.
20. Survival. Sections 1.1 (only with respect to the make-good provisions
therein, and then, only until such make-good is completed), 1.2.1 (only with
respect to the make-good provisions therein, and then, only until such make-good
is completed), 1.2.2 (only with respect to the make-good provisions therein, and
then, only until such make-good is completed), 2.12 (except as set forth therein
with respect to the termination of the Decision Guide License), 4.4, 4.6, 6.1,
6.2, 6.3 and 6.4 of the body of the Agreement, Sections 6 and 7 of Exhibit F,
and Sections 4 through 12, 14 through 22, 25, 26, 27, 29 and 30 of this Exhibit
G, will survive the completion, expiration, termination or cancellation of this
Agreement.
21. Entire Agreement. This Agreement sets forth the entire agreement and
supersedes any and all prior agreements of the Parties with respect to the
transactions set forth herein (including without limitation that certain
Development, License and Hosting Agreement (For Used Cars), by and between
PersonaLogic, Inc., and MP, and as amended by that certain Addendum thereto,
except that if and to the extent MP has, as of the Effective Date hereof, any
then due and payable payments thereunder, such accrued obligations shall
survive). Neither Party will be bound by, and each Party specifically objects
to, any term, condition or other provision which is different from or in
addition to the provisions of this Agreement (whether or not it would materially
alter this Agreement) and which is proffered by the other Party in any
correspondence or other document, unless the Party to be bound thereby
specifically agrees to such provision in writing.
22. Amendment. No change, amendment or modification of any provision of
this Agreement will be valid unless set forth in a written instrument signed by
the Party subject to enforcement of such amendment, and in the case of AOL, by
at least a Senior Vice President.
23. Further Assurances. Each Party will take such action (including, but
not limited to, the execution, acknowledgment and delivery of documents) as may
reasonably be requested by any other Party for the implementation or continuing
performance of this Agreement.
24. Assignment. MP will not assign this Agreement or any right, interest or
benefit under this Agreement without the prior written consent of AOL, which
consent shall not be unreasonably withheld, delayed or conditioned.
Notwithstanding the foregoing, MP may assign this Agreement without obtaining
AOL's consent (i) to any entity that succeeds to MP's interests by merger,
consolidation or similar transaction or otherwise by operation of law, or (ii)
to any entity that acquires all or substantially all of the assets or equity
interests in MP, in each case subject to Section 5.5 of the main body of this
Agreement. Subject to the foregoing, this Agreement will be fully binding upon,
inure to the benefit of and be enforceable by the Parties hereto and their
respective successors and assigns.
25. Construction; Severability. In the event that any provision of this
Agreement conflicts with the law under which this Agreement is to be construed
or if any such provision is held invalid by a court with jurisdiction over the
Parties to this Agreement, (i) such provision will be deemed to be restated to
reflect as nearly as possible the original intentions of the Parties in
accordance with applicable law, and (ii) the remaining terms, provisions,
covenants and restrictions of this Agreement will remain in full force and
effect.
26. Remedies. Except where otherwise specified, the rights and remedies
granted to a Party under this 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; provided that, in connection with any dispute hereunder, MP will
be not entitled to offset any amounts that it claims to be due and payable from
AOL against amounts otherwise payable by MP to AOL.
27. Applicable Law. Except as otherwise expressly provided herein, this
Agreement will be interpreted, construed and enforced in all respects in
accordance with the laws of the State of Delaware except for its conflicts of
laws principles.
28. Export Controls. Both Parties 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 technical data to any proscribed country
listed in such applicable laws, regulations and rules unless properly
authorized.
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29. 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.
30. Counterparts. This Agreement may be executed in counterparts, each of
which will be deemed an original and all of which together will constitute one
and the same document
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EXHIBIT H
DECISION GUIDE AFFILIATED SITE SCREENSHOT
(WITH CO-BRANDING THEREOF)
[SEE ATTACHED]
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[SCREEN SHOT]
35
<PAGE> 36
EXHIBIT I
POWERED BY BRANDING SCREENSHOT FOR DECISION GUIDES
[SEE ATTACHED]
36
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[SCREEN SHOT]
37
<PAGE> 38
EXHIBIT J
TOOL BAR SCREEN SHOT
(WITH CO-BRANDING THEREOF)
[SEE ATTACHED]
38
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[SCREEN SHOT]
39
<PAGE> 40
EXHIBIT K
AFFILIATED SITE SCREENSHOT
(WITH CO-BRANDING THEREOF)
[SEE ATTACHED]
40
<PAGE> 41
[SCREEN SHOT]
41
