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*** Confidential treatment has been requested for the portions of this
agreement marked by asterisks. Omitted material for which confidential
treatment has been requested has been filed separately with the
Securities and Exchange Commission.
CONFIDENTIAL
INTERACTIVE MARKETING AGREEMENT
This Interactive Marketing Agreement (this "Agreement"), dated as of
November 24, 1999 (the "Effective Date"), is between America Online, Inc.
("AOL"), a Delaware corporation, with offices at 22000 AOL Way, Dulles,
Virginia 20166, and EMW Energy Services Corp., a Delaware corporation,
("Marketing Partner" or "MP"), with a mailing address of P.O. Box 1188,
Houston, Texas 77251-1188. 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. AOL will have the right to fulfill its promotional commitments
with respect to any of the foregoing by providing MP with 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,
with 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,
with a comparable promotional placement. Each comparable promotional
placement that is provided pursuant to this Section 1.1 shall be
subject to MP's reasonable approval.
1.2 IMPRESSIONS COMMITMENT. Subject to the terms of this Section 1.2,
during the Term AOL shall deliver Impressions, for any Year, as
designated in the "Aggregate Total Impressions" line item set forth on
Exhibit A (the "Impressions Commitment"). With respect to the
Impressions Commitments, AOL will not be obligated to provide
Impressions in excess of the applicable Impressions Commitment in any
year, unless AOL otherwise agrees in writing. AOL acknowledges that MP
will actively promote the MP Products in Deregulated Markets at certain
critical times (e.g., immediately before Market Open Dates), and
therefore MP may wish to use Impressions during specific periods in
accordance with Section 1.4 hereof. Subject to Section 1.2.3 hereof,
AOL will use its commercially reasonable efforts to accommodate MP's
needs in these new and emerging markets by making available Impressions
within that market during critical time periods identified by MP as
soon as reasonably practical after identification of such needs.
1.2.1 In the event AOL provides Impressions in excess of the applicable
Impressions Commitment in any year, the Impressions Commitment for the
subsequent year will be reduced by the amount of such excess, but in no
event shall such reduction be more than the Collar regardless of the
amount of such excess.
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1.2.2 Subject to Section 1.2.3, if AOL fails to provide sufficient
Impressions to meet the Impressions Commitment for any year, then the
Impressions Commitment for the subsequent year will be increased by a
number of Impressions equal to the number of Impressions not delivered
(the "Shortfall"), subject to the following:
(a) If the Shortfall of Impressions is within the Collar,
the Impressions Commitment for the subsequent year
will be increased by the number of Impressions in the
Shortfall;
(b) If the Shortfall of Impressions is greater than the
Collar but less than or equal to *** percent (***%)
of that year's Impressions Commitment, the
Impressions Commitment for the subsequent year will
be increased by ***% of that year's Impressions
Commitment plus *** (***) times the amount of such
Shortfall that exceeds ***% of that year's
Impressions Commitment; and
(c) If the Shortfall of Impressions exceeds *** percent
(***%) of that year's Impressions Commitment (such
amount exceeding ***% is referred to as the "Excess
Shortfall"), MP shall submit the matter to the
Management Committee pursuant to Section 6.1 hereof;
and in the event the Management Committee fails to
reach a resolution within thirty (30) days after such
submission, MP may, at its option:
(i) (a) receive ***,
(ii) receive additional Impressions pursuant to
Section 1.2.2(b) above without regard to the
***% cap in Section 1.2.2(b),
(iii) receive additional Impressions equal to the
Shortfall on any other AOL property
identified by AOL on the AOL Network within
*** (***) months from the date of the
Shortfall, or a date otherwise agreed upon
by the Parties, or
(iv) elect to receive *** based on AOL's failure
to deliver such Impressions, *** determined
by the Management Committee pursuant to
Section 6.1 ***.
1.2.3 MP hereby acknowledges that AOL cannot guarantee delivery of
Impressions as requested by MP pursuant to Section 1.4 hereof. If AOL
uses commercially reasonable efforts to provide Impressions, but
nevertheless AOL fails to provide sufficient Impressions to meet the
Impressions Commitment for any year due in whole or in part to MP's
requirements identified by MP pursuant to Section 1.4 hereof (e.g., to
target small markets or to concentrate Impressions over relatively
short periods), then the provisions of Section 1.2.2 shall not apply to
any part of the Shortfall that is related to such MP requirements; but
in such event AOL will use commercially reasonable efforts to deliver
such Shortfall of Impressions caused by such MP requirements over the
remainder of the Term. The Parties hereby acknowledge that the minimum
number of Impressions reflected in the carriage plan attached as
Exhibit A hereto are annual minimum Impressions to be provided by AOL,
and that such minimums may be changed with the mutual agreement of the
Parties pursuant to the marketing planning process which is described
in Section 1.4 hereof.
1.2.4 If, at the end of the Term, there is a shortfall in Impressions from
the Impressions Commitment (a "Final Shortfall"), AOL will provide MP,
as its sole remedy, with advertising placements comparable to the
Impressions that would have been provided in accordance with Exhibit A;
provided that if such Final Shortfall exceeds *** percent (***%) of the
Impressions Commitment, then AOL shall have a *** (***) month period in
which to deliver a number of Impressions equal to
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the amount of such Final Shortfall. In the event such number of
Impressions is not delivered within such *** (***) month period, AOL
shall refund MP for the Final Shortfall not so delivered in an amount
equal to the product of (x) the number of Impressions of the Final
Shortfall not delivered, and (y) the Refund Rate.
1.3 CONTENT OF PROMOTIONS.
1.3.1 The Promotions will link only to the Affiliated MP Site and will
promote only the MP Products in accordance with this Section 1.3.1. The
specific MP Content to be contained within the Promotions described in
Section 1.1 (the "Promo Content") will be determined by MP in its
discretion, subject to AOL's technical limitations, the terms of this
Agreement and AOL's then-applicable policies relating to advertising
and promotions that apply generally to all of AOL's advertising and
commerce partners, and subject to the following limitations:
(a) In the Promo Content, MP may only promote (i) Energy
Products, and (ii) Energy Related Products that are
MP-branded.
(b) MP may promote Appliances and Moving Services (as
defined in Exhibit D under "Other Related Products")
in the Promo Content only if such Promo Content
contains an energy-related message (and in that
context only, MP may include the name of any
manufacturer of Appliances or brand name of such
Appliance, or provider of Moving Services), provided
that no such promotion shall circumvent the
prohibition against MP receiving compensation for
advertising third party products as set forth in
Section 2.8.
(c) MP may not promote Information Services in the Promo
Content.
1.3.2 The Parties will meet in person or by telephone 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 on a regular basis. 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 MARKETING PLAN. MP will submit in advance to AOL for its review a
quarterly online marketing plan with respect to the Affiliated MP Site,
indicating the proposed Promotions (and estimated usage of Impressions)
for such quarter. MP will have the discretion to require in which
markets the Impressions are to be targeted, subject to availability of
inventory and subject to Section 1.2.3.
1.5 AOL REWARDS PROGRAM. AOL will provide MP with the benefits of the AOL
Rewards Program as follows:
1.5.1 PROMOTIONAL OBLIGATIONS. During the Term, AOL shall promote certain
offers as determined by MP in connection with the Rewards Program ("the
MP Rewards Offers") from time to time and as set forth in Exhibit A-1
attached hereto (the "Rewards Promotions") through the AOL
Rewards(R)program on the AOL Service (the "Rewards Program"). AOL's
obligations under this Section 1.5 are contingent upon MP's performance
of all material obligations and compliance with all material conditions
set forth in this Agreement, including without limitation, MP's payment
of all fees. MP shall use reasonable efforts to promote the MP Rewards
Offers in MP's online and offline promotions. MP shall also work with
AOL to support the execution of various marketing programs for the MP
Rewards Offers involving issuing Rewards Points to members of the AOL
Service ("AOL Service Members"), including, but not limited to referral
programs and gift programs. Notwithstanding anything herein to the
contrary, MP shall cease all promotion of all MP Rewards
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Offers upon expiration, cancellation or termination of this Agreement
or suspension of MP's participation in the Rewards Program in
accordance with this Section.
1.5.2 REWARD POINTS. MP shall purchase points redeemable within the Rewards
Program ("Rewards Points") pursuant to the terms and conditions set
forth in this Section 1.5 and the payment schedule set forth in Section
4.1(b). Subsequent to MP's purchase of Rewards Points, AOL shall issue
Reward Points directly to AOL Service Members or persons who might
choose to become AOL Service Members ("Prospective AOL Service
Members") for the benefit of MP in accordance with the weekly report
provided to AOL by MP pursuant to Section 1.5.5. MP shall not issue
Rewards Points to AOL Service Members or Prospective AOL Service
Members or otherwise communicate with AOL Service Members or
Prospective AOL Service Members regarding redemption of such Rewards
Points except as specified herein. AOL shall permit AOL Service Members
to redeem Rewards Points in accordance with the terms of the Rewards
Program. MP acknowledges that Prospective AOL Service Members will not
be permitted to redeem Rewards Points unless and until such Prospective
AOL Service Members become AOL Service Members. MP will work with AOL
to coordinate timing, execution, and management of award capacity and
award postings. After the expiration or termination of this Agreement,
AOL will honor all Rewards Points that have been issued to AOL Service
Members, and MP's obligation to pay for any Rewards Points that have
been issued but not paid for at the time of such expiration or
termination will continue after the expiration or termination of this
Agreement.
1.5.3 MP REWARDS OFFERS. MP shall determine the terms and conditions of each
MP Rewards Offer (including without limitation determining the number
of Reward Points to be offered in connection with such MP Rewards
Offer); provided that (a) all such terms and conditions shall be in
accordance with the provisions of this Agreement and the then-standard
rules of the Rewards Program and (b) MP shall ensure that instructions
to recipients of the MP Rewards Offer are clear and prominently
displayed with the MP Rewards Offer. The terms of each MP Rewards
Offer, any material changes thereto, and the instructions to be posted
therewith, shall be subject to AOL's prior written approval, such
approval not to be unreasonably withheld or delayed. MP shall not use
the Rewards Promotions or the Rewards Program to market or promote
anything other than the MP Rewards Offer.
1.5.4 POINT DISTRIBUTION SCHEDULE. MP will purchase Rewards Points in
accordance with Section 4.1.2 hereof. The price of a Reward Point
awarded to an AOL Service Member will be *** percent of the MP Rate and
the price of a Reward Point awarded to a Prospective AOL Service Member
will be *** percent of the MP Rate. For the purposes hereof, the "MP
Rate" shall be equivalent to $*** per 100 Reward Points.
Notwithstanding the foregoing, MP hereby acknowledges that AOL reserves
the right to modify the Rewards Program at any time in the future. In
such event, and in consideration for additional services to be defined
and provided to MP under a modified Rewards Program, AOL reserves the
right to change the MP Rate on thirty (30) days written notice to MP.
If AOL provides such notice, and if the new rate (the "New Rate")
charged by AOL is greater than the MP Rate provided for herein
(provided that the New Rate shall be based on AOL's then-current rate
card for Rewards Points), MP may agree to such New Rate, or in the
alternative, MP may dispute the New Rate by providing AOL with notice
that MP reasonably believes, in good faith, that the New Rate is
excessive and unreasonable, and upon receipt of such notice, AOL shall
demonstrate to MP that AOL did not, in bad faith, establish the New
Rate to be excessive or unreasonable; provided that, in the event the
New Rate exceeds two (2) times the average rate charged by AOL to other
third parties who purchase Rewards Points, then AOL will adjust the New
Rate to be no more than two (2) times such average rate, and such New
Rate shall thereafter be the new MP Rate. Notwithstanding the
foregoing, at any time after AOL shall have provided MP with a notice
of the New Rate, MP shall have the right to cease purchase of Rewards
Points and allocate the guaranteed payments previously designated for
the purchase of Reward Points to the purchase of advertising
impressions on the Exclusive Services at a *** (***%) discount off the
then-current rate card for such advertising impressions. If, at any
time during the Term, MP has awarded points that in the aggregate cost
more than the amounts then
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paid to AOL in exchange for such points, then MP will pay to AOL the
equivalent dollar amount for such excess points within 15 days of
written notice from AOL. At the end of each year, MP shall receive
an advertising credit equal to *** percent (***%) of the amounts MP
paid in such year for Rewards Points redeemed by AOL Service
Members. MP shall be entitled to use such advertising credit to
purchase mutually agreed-upon standard advertising inventory on the
Exclusive Services. Any inventory purchased with such credit shall
be subject to the terms and conditions of this Agreement.
1.5.5 REPORTING. MP shall notify AOL on a weekly basis of the number of
Rewards Points earned that week by AOL Service Members and Prospective
AOL Service Members through MP Rewards Offers. AOL shall make available
to MP a monthly report specifying, for the preceding month, the number
of Rewards Points issued on MP's behalf and the number of Rewards
Points redeemed by AOL Service Members who earned Rewards Points
through the MP Rewards Offers.
1.6 CROSS PROMOTION. Exhibit C sets forth the basis on which MP and AOL
will conduct cross promotions.
1.7 BILL PAYMENT PRODUCTS.
1.7.1 Any MP customer generated by MP through the Affiliated MP Site may pay
MP for its products or services through or using MP's stand alone,
non-integrated bill payment product (the "MP Bill Payment Product"),
and MP may promote the MP Bill Payment Product on the MP Affiliate
Site.
1.7.2 MP hereby agrees that it will not promote the use of any third party
bill payment product through the Promotions or on the Affiliated MP
Site. Notwithstanding the foregoing, nothing contained herein will
prohibit MP from promoting the use of any third party bill payment
product on any MP Interactive Site other than the Affiliated MP Site.
1.7.3 Subject to the terms of this Section 1.7.3, MP hereby agrees to support
AOL's integrated bill payment product and will promote such AOL
integrated bill payment product in its Promotions. MP hereby
acknowledges that AOL's integrated bill payment product will be
provided by or in conjunction with a third party provider and, in the
event such third party provider charges AOL Users a fee for using such
integrated bill payment product, AOL will use commercially reasonable
efforts to ensure that AOL Purchasers will be charged a fee that is no
less favorable than the fee charged to other AOL Users. Likewise, (i)
in the event that AOL's third party provider charges a fee to
participating providers in AOL's integrated bill payment product, AOL
will use commercially reasonable efforts to ensure that the fee charged
to MP is no less favorable than the fee charged to other participating
providers in AOL's integrated bill payment product, provided however,
that to the extent that MP can demonstrate to AOL's reasonable
satisfaction that such third party fees have a material adverse impact
on MP's business, MP shall have the right to cease to promote or
support AOL's integrated bill payment product; and (ii) if MP agrees to
enter into a relationship with the Sun/Netscape Alliance for the
purpose of purchasing products or services used in the development,
operation or management of an electronic bill payment product, AOL will
use commercially reasonable efforts to ensure that the fee charged to
MP is no less favorable than the fee charged to other participating
providers in AOL's integrated bill payment product.
1.7.4 AOL may enter into contractual arrangements with MP Competitors that
are incumbent electric utilities or natural gas distribution companies
(but not unregulated affiliates thereof) to promote to AOL Users the
use of AOL's integrated bill payment product, subject to the terms of
Section 3.3.5.
2. AFFILIATED MP SITE.
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2.1 CONTENT. Except as mutually agreed in writing by the Parties, the
Affiliated MP Site will contain only the MP Products, and Content that
is directly related to the MP Products. All sales of MP Products
through the Affiliated MP Site will be conducted through a direct sales
format (i.e., on a transaction basis, and not through an auction or bid
sales format); MP will not promote, sell, offer or otherwise distribute
any products through any format other than a direct sales format
without the prior written consent of AOL. 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 does not in any respect
promote, advertise, market or distribute the products, services or
Content of any Interactive Service (other than AOL).
2.2 PRODUCTION WORK. MP will be responsible for all production work
associated with the Affiliated MP Site, including all related costs and
expenses. MP may request AOL's assistance with respect to production
work pursuant to Paragraph 10 of Exhibit F, and if the Parties agree to
such work, the provisions of that Paragraph shall apply. MP agrees not
to use any production work prepared by AOL for any purpose other than
the Affiliated MP Site, without the prior written consent of AOL.
2.3 TECHNOLOGY. MP will take commercially reasonable steps to conform its
promotion and sale of MP Products through the Affiliated MP Site to the
then-existing technologies identified by AOL which are optimized for
the AOL Service including, without limitation, any "quick checkout"
tool which AOL may implement to facilitate purchase of products by AOL
Users through the Affiliated MP Site. AOL will be entitled to require
reasonable changes to the features, functionality or links within any
linked pages of the Affiliated MP Site to the extent such features,
functionality or links 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. AOL agrees that it will
make available to MP on a timely basis and upon similar terms and
conditions, any software, tools, features and functionality that are
generally made available to AOL`s other significant marketing partners.
2.4 PRODUCT OFFERING. MP will ensure that the Affiliated MP Site includes
an offering of MP Products and other Content (including, without
limitation, any features, offers, contests, functionality or
technology) that is as comprehensive as is then made available by or on
behalf of MP through any Additional MP Channel; provided, however, that
(i) MP will not be required to include any MP Products or Content where
it is commercially or technically impractical or if the nature or type
of MP Products or Content would be inconsistent with the restrictions
imposed on the Affiliated MP Site; and (ii) in no event shall MP be
required to offer through the Affiliated MP Site any of its products or
services that include third party products or services (such as the
products of another Interactive Service).
2.5 PRICING AND TERMS. In any market in which MP is offering any of the
Energy Products, MP will offer through the Affiliated MP Site Energy
Products (or offerings including Energy Products) to potential
customers that are competitive with comparable offers of MP Competitors
in that market. Comparability will be based on evaluating the overall
offerings of MP in that market to the overall offerings of such MP
Competitor in that market (and not on a product by product comparison).
There shall be excluded from this comparison and evaluation any offers
by a MP Competitor that are below cost or at or below pricing levels
that would not be sustainable over time in a competitive market (e.g.,
predatory pricing, special market conditions that reflect short term
fluctuations in pricing, or offers by a regulated utility). In the
event that MP breaches its obligations under this Section 2.5, AOL may
give MP notice of such breach, and MP will be deemed to have cured such
breach if within one business day after its receipt of such notice, MP
revises the Promotions on any Exclusive Service relating to any such
noncompetitive offer to remove references to such offer, and thereafter
within 60 days after MP's receipt of such notice MP amends its
offerings to be competitive with any such comparable offers. AOL's sole
remedy
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for a breach of this Section 2.5 will be that AOL may, after MP's
failure to cure such breach, enter into non-exclusive agreements
with other providers of Energy Products in such market to promote
competitive products to AOL Members, where any such agreement may
not have a term in excess of three (3) years; provided, however,
that if at any time thereafter MP provides AOL a notice that MP has
cured such breach for such market, then AOL may not enter into any
other such agreements or renew any such agreements, but AOL shall
have the right to fulfill its obligations under any such agreements
entered into prior to its receipt of such notice. Notwithstanding
the foregoing, the provisions of this Section 2.5 shall not apply to
any market in which MP does not have an exclusive right to promote
Energy Products hereunder (when AOL has the right to promote the
Energy Products of other providers pursuant to Sections 2.5 or 3.4).
2.6 SPECIAL OFFERS/MEMBER BENEFITS. MP will promote through the Affiliated
MP Site comparable special or promotional offers to those special or
promotional offers that MP makes available through any Additional MP
Channel. In addition, MP shall promote through the Affiliated MP Site
special offers exclusively available to AOL Users (the "AOL Exclusive
Offers"), at least four times per year. The AOL Exclusive Offer made
available by MP shall provide a benefit to AOL Users, either by virtue
of a meaningful price discount, product enhancement, unique service
benefit or other special feature. 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. From and after the Site Launch Date, MP will
ensure that the Affiliated MP Site complies in all material respects
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 which meets or exceeds
prevailing standards in utilities industries. In the event MP fails to
comply with the standards set forth in Exhibit E and AOL reasonably
determines that such failure is affecting the ability of AOL Users to
use the Promotions or the Affiliated MP Site, or is having an adverse
effect on any part of the AOL Network, then AOL will have the right (in
addition to any other remedies available to AOL hereunder) to (a)
suspend the award of Reward Points until MP corrects such
non-compliance, and (b) decrease the Promotions it provides to MP
hereunder until such time as MP corrects its non-compliance. If at any
time during the Term hereof AOL determines that such failure is a
material breach under this Agreement, AOL shall notify MP of such
material breach, and MP shall have ten (10) days from delivery of such
notice to cure such failure. Additionally, if such failure occurs
during more than ten (10) days in any nine (9) month period, then (i)
AOL will be relieved of the proportionate amount of any Impressions
Commitment corresponding to such decrease in Promotions, and (ii) at
MP's option either (x) the thresholds for AOL Purchasers (as described
in Section 4.2) will be reduced by an amount to correspond to the
estimated "lost AOL Purchasers", or (y) MP will pay AOL $*** per "lost
AOL Purchaser" if such payment relates to periods before the 1,000,000
AOL Purchasers goal is met, or $*** per "lost AOL Purchaser" if such
payment relates to periods after the 1,000,000 AOL Purchasers goal is
met. The "lost AOL Purchasers" will be determined based on historical
data in the relevant market relating to Impressions, the click through
rate, and the customer acquisition rate (or, if no such data or other
rates are available in any affected market, the "lost AOL Purchaser"
will be determined in accordance with reasonably estimated or presumed
data with respect to impressions, click through rates and customer
acquisition rates).
2.8 ADVERTISING SALES. In the event MP decides to sell any advertising on
or through the Affiliated MP Site, MP shall notify AOL of such intent
and AOL shall have a right of first offer with respect to acting as an
agent for such advertising. MP agrees to provide AOL with the terms of
such offer and AOL shall have a 30 day period (starting on the day on
which AOL receives such offer) in which AOL will have the exclusive
right to consider and accept such offer. In the event AOL rejects such
offer, MP may engage any other entity in connection with the foregoing;
provided, however that (i) such entity be offered terms and conditions
that are the same as or no more
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favorable to such entity than those offered to AOL under this
Section 2.8, (ii) any advertising sold by such entity on the
Affiliated MP Site shall be subject to the terms and conditions
hereof and (iii) all revenues from advertising sales shall be shared
with AOL as agreed upon by the Parties. This exclusive offer period
applies only to the first advertising to be conducted by MP; AOL's
rights under this Section 2.8 shall lapse and be of no further
effect after the end of such 30 day period. It is understood that MP
may advertise third party products and services that are part of an
MP Product without regard to this Section 2.8, provided that MP does
not sell or otherwise receive compensation for such advertising to
the third party providers of such products and services.
2.9 TRAFFIC FLOW. MP will use commercially reasonable efforts to ensure
that AOL traffic is either kept within the Affiliated MP Site or
channeled back into the AOL Network. The Parties will work together on
implementing mutually acceptable links from the Affiliated MP Site back
to the AOL Network. In the event that AOL points or otherwise delivers
traffic to the Affiliated MP Site or another site designated by MP, MP
will ensure that navigation back to the AOL Network from such site,
whether through a particular pointer or link, the "back" button on an
Internet browser, the closing of an active window, or any other return
mechanism, shall not be interrupted by MP through the use of any
intermediate screen or other device not specifically requested by the
user, including without limitation through the use of any html pop-up
window or any other similar device. Notwithstanding the foregoing, in
the case of any advertising links that are sold and implemented
pursuant to this Agreement or any links that are implemented pursuant
to this Agreement to other sites not controlled by MP, MP will not be
required to provide a means for channeling back to the AOL Network from
any third party sites to which the Affiliated MP Site is so linked.
3. AOL EXCLUSIVITY OBLIGATIONS.
3.1 EXCLUSIVE MP PRODUCTS. During the term of this Agreement, except as
expressly provided in Sections 2.5, 3.2, 3.3.6, 3.3.7 and 3.4:
3.1.1 ENERGY PRODUCTS. AOL shall not sell or promote, or agree to sell or
promote, Energy Products (either individually or in combination with
any other product or service) on any Exclusive Service for the benefit
of AOL or any other person or entity other than MP.
3.1.2 ENERGY RELATED PRODUCTS. AOL shall not sell or promote, or agree to
sell or promote, Energy Related Products of AOL or an MP Competitor
(either individually or in combination with any other product or
service) on any Exclusive Service.
3.2 EXCEPTIONS TO EXCLUSIVITY. Notwithstanding anything to the contrary in
Section 3.1 (and without limiting any actions which may be taken by AOL
without violation of MP's rights hereunder):
3.2.1 AOL may undertake activities or perform duties pursuant to arrangements
with third parties that are in existence as of the Effective Date;
provided, however, in this regard:
(a) AOL hereby represents and warrants to MP that to the
knowledge of AOL senior executives (i.e., employees
above the level of vice president) and any vice
president of any Exclusive Service that has been
actively involved in the negotiation of this
Agreement (i) as of the Effective Date AOL has no
existing arrangements exceeding $1,000,000 in value
that expressly grant rights to any person or entity
to sell and promote Energy Products on the Exclusive
Services; (ii) no person or entity selling or
promoting products or services on any of the
Exclusive Services pursuant to an agreement exceeding
$1,000,000 in value is currently offering for sale or
otherwise promoting Energy Products on the Exclusive
Services; and (iii) as of the Effective Date, AOL
does not have a selling or promotional arrangement
exceeding $1,000,000 in value in connection with any
of the Exclusive Services with any MP Competitor
listed on Exhibit H;
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provided that if AOL discovers that it has breached
the representation of (iii) due to an existing
agreement with an MP Competitor for the sale or
promotion of products that are not Exclusive MP
Products, then such breach may be cured by AOL by
updating its representation, and no damages would
result from such breach.
(b) AOL shall not prompt or encourage any person or
entity currently promoting products or services on
the Exclusive Services pursuant to an existing
agreement with AOL (as of the Effective Date) to sell
or promote any Energy Products on any of the
Exclusive Services.
(c) In the event any person or entity currently promoting
products or services on any of the Exclusive Services
pursuant to any existing agreement with AOL as of the
Effective Date (other than agreements otherwise
expressly permitted hereunder) were to sell or
promote any Exclusive MP Products on the Exclusive
Services under the terms of that existing agreement,
***. If such dispute is referred to arbitration, ***.
Any damages awarded under this Section 3.2.1(c) shall
be MP's sole remedy with respect to this Section
3.2.1(c).
3.2.2 AOL may undertake activities or perform duties pursuant to arrangements
with third parties that AOL becomes subject to as a result of a Change
of Control of AOL, or a merger or acquisition by AOL; provided that if,
as a result of Change of Control, merger or acquisition, AOL becomes
subject to an arrangement whereby it would promote or sell any
Exclusive MP Products or promote any MP Competitor in conflict with the
terms of this Agreement (other than this Section 3.2.2), then ***.
3.2.3 AOL may create contextual links or editorial commentary on the
Exclusive Services relating to any third party marketer of an Exclusive
MP Product, or provide functionality, links and/or tools on the
Exclusive Services to any third party marketer of any Exclusive MP
Products; provided that in each case AOL is not compensated by such
third party marketer in any manner for such contextual links, editorial
commentary, functionality, links or tools, except as otherwise provided
elsewhere herein and specifically with respect to Section 3.3.5.
3.2.4 AOL may provide on the Exclusive Services links to providers who are
not MP Competitors (e.g., New York Times, Motley Fool, People
Magazine), whose linked screens may have promotions of, or links to
promotions of, an Exclusive MP Product or an MP Competitor.
3.2.5 AOL may promote on the Exclusive Services the products and services of
any third party who is not an MP Competitor; provided that, such
promotions on the Exclusive Services do not expressly promote any
Energy Products.
3.3 RESTRICTIONS REGARDING MP COMPETITORS. During the term of this
Agreement, notwithstanding anything contained in Section 3.1 hereof,
except as provided in this Section 3.3, or in Sections 2.5, 3.2, and
3.4, AOL will not enter into any arrangement with any MP Competitor on
any Exclusive Service, except as follows:
3.3.1 AOL may conduct branding campaigns on any Exclusive Service for any
regulated utility (but not any unregulated affiliate of such regulated
utility) in any Regulated Market; provided that within thirty (30) days
after such market becomes a Deregulated Market, AOL shall cease all
promotions of such regulated utility on the Exclusive Service with
respect to the Deregulated Product. In the event that AOL is required
to cease promotions for any regulated utility pursuant to the
foregoing, AOL shall have the right at any time thereafter to provide
AOL Users functionality, links and tools reasonably determined by AOL
to be necessary for a good AOL User experience; provided that AOL is
not paid by such regulated utility (or its unregulated affiliates) to
maintain such
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functionality, links or tools (other than to the extent otherwise
permitted hereunder and specifically under Section 3.3.5).
3.3.2 Subject to the restrictions set forth in Section 3.3.8, AOL may sell or
promote, or agree to sell or promote, through any of the Exclusive
Services products or services of an MP Competitor that are not
Exclusive MP Products, and that are marketed under the trademarks and
trade names used by such MP Competitor to sell Energy Products, except:
(a) In any market that is a Deregulated Market as of the
Effective Date, during the eight month period
beginning 45 days after MP gives AOL written notice
of MP's entrance into such Deregulated Market; or
(b) In any market that is a Regulated Market as of the
Effective Date, during the eight month period
beginning two months prior to the Market Open Date
for such market, or such other date as may be
designated by MP in its sole discretion (such period,
or the period described in Section 3.3.2(a), as
applicable, the "Blackout Period"); provided that MP
shall provide AOL with written notice of the Market
Open Date at least 90 days prior to such date, and,
in addition to providing AOL notice of the Market
Open Date for any market that MP seeks to enter, if
MP designates a date other than the Market Open Date
to trigger the calculation of the Blackout Period, MP
shall provide AOL with written notice of such other
date at least 90 days prior to such date.
3.3.3 Subject to the restrictions set forth in Section 3.3.8, AOL may sell or
promote, or agree to sell or promote through the Exclusive Services the
products or services of an MP Competitor that are not Exclusive MP
Products and are not marketed under the trademarks and trade names used
by such MP Competitor to sell Energy Products.
3.3.4 Subject to the restrictions set forth in Section 3.3.8, AOL may enter
into any contractual relationship with any MP Competitor, the principal
purpose of which is the provision of connectivity or telecommunication
services (e.g., broadband, data, voice or any combinations thereof) by
such MP Competitor; provided that in the event that AOL is unable to
consummate such contractual arrangement under this Section 3.3.4 due to
the restrictions set forth in Section 3.3.8(b), then AOL shall be
permitted to link to an MP Competitor's site that sells or promotes an
Energy Product, provided that AOL shall use commercially reasonable
best efforts to ensure that the opportunity to purchase such products
is at least *** from the Exclusive Services.
3.3.5 Subject to the restrictions set forth in Section 3.3.8, AOL may enter
into contractual arrangements to allow an incumbent regulated electric
utility or natural gas distribution company to promote within the
geographic areas serviced by such incumbent, the fact that their
customers have the ability to pay for energy services using AOL's
integrated bill payment product; provided that (a) any Content
displayed or used by AOL in this context may not ***; and (b) during
the Blackout Periods described in Section 3.3.2, AOL will not allow
such regulated utilities or distribution companies to *** on the
Exclusive Services. Nothing contained herein shall (i) restrict or be
construed to restrict AOL's ability to receive fees in connection with
its integrated bill payment product or (ii) prohibit, restrain or be
implied to prohibit or restrain AOL from integrating any third party
provider (including any MP Competitor) into AOL's integrated bill
payment product (and the parties acknowledge that the term
"integrating" as used in this subclause (ii) shall not mean promoting
(except as otherwise permitted herein) or allowing for customer
acquisition on any Exclusive Service).
3.3.6 AOL may enter into any contractual relationship with any MP Competitor
to acquire new AOL Members derived from a database of the existing
customers of any MP Competitor, and in that event AOL may promote ***
to any of the new AOL Members so acquired, any of the products and
services of such MP Competitor from whose database such new AOL Members
shall have
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been acquired. In no event, however, shall AOL restrict such newly
acquired AOL Members from viewing any of the Promotions.
3.3.7 Subject to the conditions set forth below in this Section 3.3.7, AOL
may enter into any contractual relationship with any MP Competitor to
acquire new AOL Members who are not in the database of existing
customers of any MP Competitor, and in that event AOL may promote ***
to any of the new AOL Members so acquired, any of the products and
services of such MP Competitor. The conditions that must be fully
satisfied with respect to any such contractual relationships with MP
Competitors are:
(a) Prior to entering into any such relationship AOL
shall ***;
(b) Thereafter AOL may enter into any such proposed
relationship with one or more MP Competitors, ***;
and
(c) Any new AOL Members that are acquired by AOL as a
consequence of such relationships will not be
restricted by AOL from viewing any of the Promotions.
3.3.8 AOL's rights under Sections 3.3.2, 3.3.3, 3.3.4 and 3.3.5 shall be
subject to the following restrictions (except as otherwise provided in
any such Section):
(a) Any Content displayed or used by AOL on the Exclusive
Services that relates to the MP Competitor cannot be
used for ***; and
(b) Promotions for an MP Competitor that are distributed
by AOL on the Exclusive Services cannot ***.
3.3.9 At such time as an entity becomes an MP Competitor, AOL will become
subject to the restrictions and requirements under this Agreement with
respect to each such MP Competitor as of the effective date of such
addition, except if on such effective date AOL has a pre-existing
contractual relationship with such new MP Competitor, then the
following shall apply:
(a) AOL will give MP notice that it has a pre-existing
contractual relationship with such new MP Competitor;
and
(b) To the extent that AOL's pre-existing contractual
relationship with any such new MP Competitor
conflicts with any of the restrictions on MP
Competitors hereunder, then (i) AOL will use
commercially reasonable efforts to (x) *** or (y)
***, or, if that is not possible, to use commercially
reasonably efforts to ***; (ii) AOL will use
commercially reasonable efforts to *** unless
otherwise expressly permitted hereunder (e.g.,
pursuant to Section 3.3.6); and (iii) AOL may
continue to perform its obligations under such
pre-existing contractual relationship in accordance
with its terms, as renewed or extended pursuant to
such terms, except that during the Term of this
Agreement, AOL will not agree to ***.
3.3.10 If MP requests AOL to add an entity as an MP Competitor who does not
satisfy the criteria described in the definition of "MP Competitor",
and AOL declines to do so, and such entity is an Aggregator and poses a
threat to MP's core business, then AOL agrees to use its commercially
reasonable efforts to prohibit the promotion of any Exclusive MP
Product by such entity ***, but otherwise AOL will not have any
additional obligations with respect to such entity hereunder, and in no
event will this provision restrict AOL from entering into a contractual
relationship with such entity.
3.3.11 Notwithstanding anything otherwise contained herein, in the event that
an Aggregator shall satisfy either subsection (i) or (ii) of the
definition of MP Competitor and, but for the provisions of this
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Section 3.3.11, would be deemed an MP Competitor, such Aggregator shall
not be an MP Competitor and (i) such Aggregator shall be permitted to
sell and/or promote Energy Related Products and (ii) the provision of
Sections 3.3.2 and 3.3.8(b) shall not apply to such Aggregator. With
respect to any such Aggregator, AOL shall prohibit such Aggregator from
promoting Energy Products ***, except that in the event that AOL is
unable to consummate a contractual arrangement with such Aggregator due
to the restrictions contained in this sentence, then AOL shall be
permitted to link to such Aggregator's site; provided that AOL shall
use commercially reasonable efforts to ensure that the opportunity to
purchase an Energy Product is ***.
3.4 DEREGULATED MARKETS.
3.4.1 The following will apply only after May 1, 2000: If at any time after
three months after the Market Open Date of a Deregulated Market (or
with respect to any markets that are Deregulated Markets on May 1,
2000, three (3) months after May 1, 2000), MP is not offering the
relevant Deregulated Energy Product in such market, then subject to
Section 3.4.5, AOL may enter into non-exclusive arrangements (each with
a term not to exceed *** (***) years) with any person or entity to sell
or promote such Deregulated Energy Product (i.e., natural gas or
electricity) in such market; provided that prior to entering into the
first of such arrangements, AOL shall provide MP with a written notice
that AOL has ***, and MP does not advise AOL within thirty (30) days
after its receipt of such notice that MP intends to enter into such
market. Thereafter, AOL may enter into an arms' length agreement with
any unaffiliated third party; provided, however, that if AOL fails to
consummate such agreement within the earlier of (i) *** days after MP's
receipt of such notice, or (ii) *** days after AOL's receipt of MP's
response to such notice indicating that MP does not intend to sell or
promote the Deregulated Energy Product in such market at that time,
then AOL's right to enter into such arrangement shall lapse, and AOL
will be required to provide a new notice pursuant to the terms of this
Section 3.4.1. If AOL enters into such arrangement within the permitted
period, AOL may enter into additional non-exclusive arrangements (each
with a term not to exceed *** (***) years) to promote such Deregulated
Energy Product in that Deregulated Market, subject to Section 3.4.5. If
MP advises AOL within thirty (30) days of its receipt of such notice
that it intends to enter such market, AOL may not enter into any such
non-exclusive arrangements, subject to MP satisfying the requirements
set forth in Section 3.4.4.
3.4.2 The following will apply only after May 1, 2000: Without limiting AOL's
rights under (and in addition to) Section 3.4.1, at any time after ***
(***) months after the Market Open Date of a Deregulated Market, if MP
is not offering the Deregulated Energy Product in such market, and if
in such market *** percent (***%) or more of the residential consumers
have chosen an energy provider other than the incumbent operating
utility or an unregulated affiliate thereof (which percentage shall be
determined by reference to an industry accepted, objective publication
of energy statistics for the relevant market), then AOL may deliver to
MP a written notice indicating AOL's intent to enter into non-exclusive
arrangements with other providers of such Deregulated Energy Product.
If MP does not advise AOL within thirty (30) days of its receipt of
such notice that it intends to enter into such market, AOL may enter
into non-exclusive arrangements (each with a term not to exceed ***
(***) years) to promote such other providers of Deregulated Energy
Products in that Deregulated Market, subject to Section 3.4.5. If MP
advises AOL within thirty (30) days of its receipt of such notice that
it intends to enter such market, AOL may not enter into any such
non-exclusive arrangements, subject to MP satisfying the requirements
set forth in Section 3.4.4.
3.4.3 Subsequent to MP's entrance into a particular Deregulated Market, in
the event that (i) MP has publicly announced its withdrawal from that
Deregulated Market, (ii) has ceased to service its Deregulated Energy
Product customers, or (iii) has stopped acquiring new customers for
Deregulated Energy Product in that Deregulated Market, then AOL may
deliver to MP a written notice indicating AOL's intent to enter into
non-exclusive arrangements with other providers of Deregulated Energy
Products in that market. If MP does not advise AOL within thirty (30)
days of its receipt of such notice that it intends to reenter such
market, AOL may enter into non-exclusive
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arrangements (each with a term not to exceed *** (***) years) to
promote such other providers in that Deregulated Market, subject to
Section 3.4.5. If MP advises AOL within thirty (30) days of its receipt
of such notice that it intends to enter such market, AOL may not enter
into any such non-exclusive arrangements, subject to MP satisfying the
requirements set forth in Section 3.4.4.
3.4.4 If MP provides notice to AOL that it intends to enter or reenter into a
Deregulated Market pursuant to Sections 3.4.1, 3.4.2 or 3.4.3, then MP
shall use its commercially reasonable efforts to enter such market
within a reasonable period of time; provided that if MP is unable to
enter into such Deregulated Market within *** days of the date of such
notice, then MP shall provide AOL with a written notice describing the
reasons for such delay and describing MP's commercially reasonable
efforts to enter such markets and its anticipated schedule to enter the
market. In the event MP fails to enter into such market within ***
(***) days following the end of such *** (***) day period, then AOL
shall have the right to enter into non-exclusive arrangements with
other providers of Deregulated Energy Products, each with a term not to
exceed *** (***) years.
3.4.5 At any time after AOL enters into non-exclusive arrangements pursuant
to Sections 3.4.1 to 3.4.4, MP may elect to enter such a Deregulated
Market to sell or offer to sell the Deregulated Energy Product. When MP
enters into such market, thereafter AOL may not enter into any new
arrangements with any other person for such Deregulated Market, nor may
AOL renew or extend any non-exclusive arrangements in such market. AOL
will be entitled, however, to continue to perform its obligations under
any of the non-exclusive arrangements entered into pursuant to Sections
3.4.1 to 3.4.4.
3.4.6 If MP is accepting new customers in a Deregulated Market but has chosen
not to use Impressions to solicit new customers in such Deregulated
Market for nine (9) consecutive months, AOL may require MP to use
Impressions up to the average number of Impressions per AOL Member per
year under this Agreement, in the subsequent twelve (12) month period
to promote the Exclusive MP Products in such Deregulated Market.
3.5 MIGRATION. If AOL intentionally encourages any of the subscribers of
the AOL Service or CompuServe ("Paying AOL Members") to Migrate to a
Targeted Service, then the following provisions shall apply:
3.5.1 If less than *** percent (***%) of the Paying AOL Members have Migrated
to a Targeted Service, and if such Migrated Paying AOL Members
represent more than *** percent (***%) of the subscribers on that
Targeted Service, then AOL shall provide MP with Promotions and
Impressions on the Targeted Service on a non-exclusive basis pursuant
to a revised carriage plan from and after that date (which carriage
plan reallocates remaining Impressions among the Exclusive Services and
the Targeted Service), until the end of this Agreement, in accordance
with the terms of this Agreement, other than Section 3 and other
provisions related to exclusivity.
3.5.2 If more than *** percent (***%) of the Paying AOL Members have Migrated
to a Targeted Service, and if such Migrated Paying AOL Members
represent more than *** percent (***%) of the subscribers on that
Targeted Service, then (i) AOL shall provide MP with Promotions and
Impressions on the Targeted Service pursuant to a revised carriage plan
from and after that date (which carriage plan reallocates remaining
Impressions among the Exclusive Services and the Targeted Service),
until the end of this Agreement, in accordance with the terms of this
Agreement, and (ii) the Targeted Service shall be *** from and after
that date, until the end of this Agreement, in accordance with the
terms of this Agreement; provided, however, if AOL has any contractual
commitments with respect to the Targeted Service that would conflict
with (i) or (ii), then AOL will use its commercially reasonable efforts
to satisfy (i) and (ii) notwithstanding such contractual commitments,
and if AOL cannot satisfy (i) and (ii), AOL will ***.
3.5.3 If more than *** percent (***%) but less than ***percent (***%) of the
Paying AOL Members have Migrated to a Targeted Service, and if such
Migrated Paying AOL Members represent less than
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*** percent (***%) of the subscribers on that Targeted Service, then
(i) AOL shall provide MP with Promotions and Impressions on the
Targeted Service pursuant to a revised carriage plan from and after
that date (which carriage plan reallocates remaining Impressions among
the Exclusive Services and the Target Service), until the end of this
Agreement, in accordance with the terms of this Agreement other than
Section 3 and other provisions relating to exclusivity, and (ii) ***.
3.5.4 If more than *** percent (***%) of the Paying AOL Members have Migrated
to a Targeted Service, then AOL shall provide MP with the first right
to negotiate the extension of the exclusivity hereunder to that
Targeted Service (whereby MP would be required to compensate AOL for
the value of such exclusivity for the Targeted Service as determined as
of that time); provided, however, if AOL has any contractual
commitments with respect to the Targeted Service that would conflict
with the foregoing, then AOL will ***.
3.5.5 If pursuant to the provisions of this Section 3.5, AOL is required to
***, then MP may initiate the dispute resolution procedures under
Section 6 hereto to determine ***.
3.6 EARLY TERMINATION OF EXCLUSIVITY AND AGREEMENT. At any time during the
month of ***, either Party hereto may request the other Party to
conduct good faith discussions regarding the economic terms of this
Agreement from that date (the "Look See Date") to the end of the Term.
From and after the Look See Date, but prior to the first anniversary
thereof, either Party shall have the right to initiate the termination
provisions set forth below by giving the other Party notice of its
intent to proceed under this Section 3.6; provided, however, that prior
to providing such notice, the terminating Party has sought to enter
into such good faith discussions. If either Party elects to terminate
this Agreement under this Section 3.6, then the following will apply:
(a) The exclusivity provisions of Section 3.1 will terminate
effective on the first anniversary of the Look See Date;
(b) Provided that MP has made all required scheduled payments
prior to the Look See Date, AOL will pay MP the sum of $*** on
the first anniversary of the Look See Date;
(c) AOL will continue to provide Impressions and Promotions in
accordance with this Agreement (other than Section 3.1 and
other provisions relating to exclusivity) for *** (***) months
after the first anniversary of the Look See Date;
(d) MP will have no obligation to make any payments pursuant to
Section 4.1 that are scheduled for payment after the first
anniversary of the Look See Date; and
(d) This Agreement will expire *** (***) months after the first
anniversary of the Look See Date.
3.7 MINIMUM NATIONAL COVERAGE. Notwithstanding anything to the contrary in
this Agreement, from and after the first anniversary of the Effective
Date, the provisions of this Section 3.7 shall apply.
3.7.1 In the event that (i) more than two (2) providers of electricity offer
electricity to residential consumers and small business customers in
more Deregulated Markets nationwide than those in which MP is so
offering electricity, or (ii) more than two (2) providers of
electricity to residential consumers and small business customers in
Deregulated Markets offer electricity to a greater percentage of the
population in Deregulated Markets nationwide than that to which MP is
offering electricity, then MP shall have ninety (90) days following its
receipt of notice from AOL of its failure to meet the conditions
described in Sections 3.7.1(i) and (ii) hereof to cure such failure,
or, if MP's cure of such failure requires additional regulatory
approvals, MP shall have one hundred eighty (180) days to cure such
failure following MP's receipt of such notice from AOL. In the event
such failure remains uncured after such ninety-day or one hundred
eighty-day period, as
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applicable, AOL shall have the right to terminate MP's rights
pertaining to exclusivity under this Agreement with respect to
electricity.
3.7.2 In the event that (i) more than two (2) providers of natural gas offer
natural gas to residential consumers and small business customers in
more Deregulated Markets nationwide than those in which MP is so
offering natural gas, or (ii) more than two (2) providers of natural
gas to residential consumers and small business customers in
Deregulated Markets offer natural gas to a greater percentage of the
population in Deregulated Markets nationwide than that to which MP is
offering natural gas, then MP shall have ninety (90) days following its
receipt of notice from AOL of its failure to meet the conditions
described in Sections 3.7.2(i) and (ii) hereof to cure such failure,
or, if MP's cure of such failure requires additional regulatory
approvals, MP shall have one hundred eighty (180) days to cure such
failure following MP's receipt of such notice from AOL. In the event
such failure remains uncured after such ninety-day or one hundred
eighty-day period, as applicable, AOL shall have the right to terminate
MP's rights pertaining to exclusivity under this Agreement with respect
to natural gas.
3.7.3 With respect to Sections 3.7.1 and 3.7.2, three (3) nationally
recognized independent experts in the energy industry shall determine
whether there are more than two (2) electricity or natural gas
providers, as applicable, offering electricity or natural gas as
described in Sections 3.7.1 and/or 3.7.2, respectively. Such experts
shall be identified within ten (10) days of AOL's notice to MP that
such identification is required. Each Party will name one such expert
within five (5) days after the delivery of such notice. The two experts
named by the Parties will select a third expert within five (5) days
thereafter.
4. PAYMENTS.
4.1 PAYMENTS. Subject to the terms and conditions of this Agreement, MP
will pay AOL non-refundable payments in accordance with the following
schedules, provided that this Agreement is in effect on the payment
date:
4.1.1 SCHEDULED PAYMENTS. Except as may be modified pursuant to Section
4.1.2:
(i) *** Dollars ($***) which has previously been paid
pursuant to a Letter of Intent between the Parties
dated as of May 14, 1999;
(ii) *** Dollars ($***) upon execution of this Agreement;
(iii) *** Dollars ($***) on April 30, 2000;
(iv) *** Dollars ($***) on January 1, 2001;
(v) *** Dollars ($***) on July 1, 2001;
(vi) *** Dollars ($***) on January 1, 2002;
(vii) *** Dollars ($***) on July 1, 2002;
(viii) *** Dollars ($***) on January 1, 2003;
(ix) *** Dollars ($***) on July 1, 2003;
(x) *** Dollars ($***) on January 1, 2004;
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(xi) *** Dollars ($***) on July 1, 2004; and
(xii) *** Dollars ($***) on January 1, 2005.
4.1.2 REWARDS POINTS. The Parties hereby acknowledge that on an annual basis
(commencing on January 1, 2000), an amount equal to *** dollars ($***)
of the amounts due pursuant to Section 4.1.1 above, shall be allocated
by AOL hereunder as payment for the purchase of Reward Points by MP as
provided pursuant to Section 1.5 hereof. During any given year, MP
shall have the right to purchase Reward Points in excess of *** Dollars
($***) by paying cash therefor either upon request for such additional
Reward Points or in accordance with AOL's billing procedures therefor
(an "Excess Purchase"). In the event MP makes one or more Excess
Purchases in any given calendar year, the payment (or if applicable,
payments) due from MP immediately following such Excess Purchase shall
be reduced by an amount equal to the amount paid by MP for such Excess
Purchase.
4.2 AOL PURCHASER GOALS. As additional consideration for AOL's services
hereunder, MP will provide AOL with the additional compensation set
forth below upon the achievement of the AOL Purchaser goals set forth
below.
4.2.1 FIRST ONE MILLION AOL PURCHASERS. Subject to the terms of the
Subscription Agreement, a form of which is attached hereto as Exhibit I
and which shall be executed in substantially similar form by the
parties named therein on or around the closing of the Private
Placement, in consideration of AOL's services hereunder, MP will grant
to AOL a number of shares of voting common stock of MP equal to the
Vesting Increment (as defined in Section 1.2 of the Subscription
Agreement) within 15 days after each of the following AOL Purchaser
goals has been met: 100,000th, 200,000th, 300,000th, 400,000th,
500,000th, 600,000th, 700,000th, 800,000th, 900,000th and 1,000,000th
AOL Purchasers. In this connection, AOL has reviewed and approved the
form of Subscription Agreement and will execute and deliver the
Subscription Agreement prior to receiving any such shares, and all such
shares shall be subject to the terms, conditions and restrictions set
forth in the Subscription Agreement. All shares issued by MP pursuant
to this Section 4.2.1 shall be duly authorized and issued, fully paid,
and nonassessable shares of voting common stock of MP. In the event
that MP is merged with another corporation, Section 4.2 of the
Subscription Agreement will apply. In the event that this Agreement
terminates (for any reason, with or without cause by either Party),
prior to the achievement of any one of the foregoing AOL Purchaser
acquisition goals, then AOL shall not be entitled to receive any shares
in connection with such AOL Purchaser acquisition goal or AOL Purchaser
acquisition goals subsequent thereto under this Section 4.2.1.
4.2.2 ADDITIONAL AOL PURCHASERS. For every 100,000 AOL Purchasers in excess
of 1,000,000, MP shall pay AOL Two Million Five Hundred Thousand
Dollars (US$2,500,000). Amounts accrued hereunder during any month
shall be paid within thirty (30) days after the end of such month in
accordance with Section 4.3 hereof.
4.3 LATE PAYMENTS; WIRED PAYMENTS. All amounts owed hereunder by either
Party and that not paid when due and payable will bear interest from
the date such amounts are due and payable at the prime rate as posted
from time to time by The Chase Manhattan Bank in effect at such time.
All payments by MP that are 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: 021000021).
4.4 AUDITING RIGHTS. MP will maintain complete, clear and accurate records
of all AOL Purchasers and other matters related to MP's performance of
its obligations under this Agreement. For the sole purpose of ensuring
compliance with this Agreement, AOL (or its representative) will have
the right to an audit and 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 after twenty (20) business
days prior written notice to MP. AOL shall bear the expense of any
audit
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conducted pursuant to this Section 4.4 unless such audit shows an
error in AOL's favor amounting to a deficiency to AOL in excess of ten
percent (10%) 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.
4.5 TAXES.
4.5.1 The amounts payable to AOL under this Agreement do not include existing
Transaction Taxes, and MP will be responsible for, and indemnify and
hold AOL harmless from, all Transaction Taxes imposed upon (i) the
Promotions provided by AOL to MP under this Agreement and (ii) any MP
Products sold by MP to AOL Users hereunder. AOL shall bill and collect
from MP any Transaction Taxes imposed on the Promotions that MP is
responsible for and report and remit the same to the applicable taxing
authorities, unless applicable law requires such Transaction Taxes and
charges to be reported or remitted by MP. MP shall not be obligated to
pay or reimburse AOL for interest, fines, or other penalties arising
from AOL's negligent failure to timely bill, collect, or pay the
appropriate taxing authorities any such Transaction Taxes due by MP.
4.5.2 AOL and MP agree to cooperate in identifying and evaluating sales and
use tax saving strategies and opportunities with respect to the
activities contemplated by this Agreement, with the understanding that
the implementation of any such strategies and opportunities shall not
affect the Parties' responsibilities for Transaction Taxes and other
charges and their obligations set forth in this Section, or their
responsibility for filing any returns and reports required by law.
Where necessary to minimize Transaction Taxes, AOL shall provide MP
with one or more invoices that itemize AOL's taxable and non-taxable
charges for payments made by MP under this Agreement, including,
without limitation, any supplemental invoices which may be required by
MP for a period of up to six years after the applicable charges are
due. Both Parties agree to cooperate in obtaining any exemption or
reduction in Transaction Taxes upon request by the other. AOL will
cooperate in the pursuit of and/or assign to MP, to the extent
assignable, any claims for refund that either Party becomes aware of
with respect to any Transaction Taxes that MP is responsible for under
the terms of this Agreement.
4.6 REPORTS.
4.6.1 AOL PURCHASERS. MP will provide AOL, in an automated manner, with a
monthly report in an agreed format, detailing the number of AOL
Purchasers obtained in each month, and any other information mutually
agreed upon by the Parties or reasonably required for measuring of AOL
Purchasers obtained through the Affiliated MP Site.
4.6.2 SALES REPORTS. MP will provide AOL in an automated manner with a
monthly report in an agreed format, providing aggregate sales
information by categories ("Sales Reports"), which shall include the
number of visitors accessing the Affiliated MP Site, purchaser names
and screennames (including specifically, the screen names of purchasers
of over $300 in products or services other than Energy Products), SKU
or Product descriptions, average amounts billed to subscribers, total
dollars per product line, any applicable gross transaction revenues and
all items deducted or excluded from gross transaction revenues to
produce transaction revenues (including, without limitation,
chargebacks and credits for returned or canceled goods or services and,
where possible, an explanation of the type of reason therefor, e.g.,
bad credit card information, poor customer service, etc.) and any
applicable advertising revenues. In addition to the aforementioned
report, on the first business day of each week during the Term, MP
shall provide AOL, in electronic format, with the name, screenname,
number of Rewards Points earned, whether a Reward Program member is
existing or new, and other information reasonably requested by AOL for
each AOL Member who qualifies for Rewards Points under each Rewards
Promotion during the preceding week. AOL acknowledges that the Sales
Reports are Confidential Information of MP; provided, however, MP
agrees THAT AOL may use Sales Reports in its internal
17
<PAGE>
business operations, and AOL may use information contained in the Sales
Reports to produce aggregated data that may be publicly released in
aggregate figures, provided that AOL may not release information
relating to energy services offered on any Exclusive Service as a stand
alone category of services.
4.6.3 USAGE REPORTS. AOL shall provide MP with a report containing standard
usage information related to the Promotions and Impressions (e.g., a
schedule of the Impressions delivered by AOL at such time), which is
similar in substance and form to the reports provided by AOL to other
interactive marketing partners similar to MP. MP acknowledges that the
Usage Reports are Confidential Information of AOL. In addition to the
foregoing, upon MP's request, AOL will provide MP with a report of
Impressions and Promotions delivered hereunder, audited by ABC
Interactive, Inc., at MP's expense, provided that if the audited report
shows an underage of Impressions delivered by AOL to be more than ten
percent 10% from the unaudited report, AOL shall bear the reasonable
expenses of such audit.
4.6.4 FRAUDULENT TRANSACTIONS. To the extent permitted by applicable laws, MP
will provide AOL with a prompt report of any fraudulent order,
including the date, screenname or email address and amount associated
with such order, promptly following MP obtaining knowledge that the
order is, in fact, fraudulent.
5. TERM; RENEWAL; TERMINATION.
5.1 TERM.
5.1.1 Unless earlier terminated as set forth herein, the Term of this
Agreement will begin on the Effective Date and will end on the sixth
anniversary hereof (the "Term").
5.1.2 If the Private Placement is not completed by February 28, 2000, then
for so long as the Private Placement has not been completed, either
Party shall have the right to elect to terminate this Agreement upon
written notice to the other Party, with the effective date of such
termination to be the date such notice is delivered to the other Party.
Upon such termination, neither Party shall have any further rights,
obligations or liabilities hereunder, and AOL shall be entitled to
retain all payments made by MP hereunder prior to the effective date of
such termination.
5.2 RENEWAL.
5.2.1 For the six months prior to the expiration of the Term, AOL and MP will
enter into good faith negotiations to consider an ongoing relationship
beyond the Term.
5.2.2 If the Parties fail to agree to extend or renew this Agreement on
mutually acceptable terms pursuant to Section 5.2.1, then this
Agreement will be terminated as of the end of the Term. However, for
two years following such termination, the following will apply:
(a) MP will pay AOL a bounty for each AOL Purchaser
acquired by MP during such two year period equal to
MP's then standard affiliate bounty program rates for
new customers from Interactive Services (which AOL
acknowledges may be less than or greater than $***),
or, in the event no such standard bounty program
exists, $***.
(b) MP will allow AOL to maintain a link from the
Exclusive Services to the Affiliated MP Site for such
two-year period, and will maintain and operate the
Affiliated MP Site in accordance with the provisions
of Sections 2.1, 2.4, 2.7, 4.3, 4.4, 4.5, 4.6.2, 5.3,
6, and Exhibits E and F, and the relationship between
the Parties shall be governed by Exhibit G for such
period.
18
<PAGE>
All other obligations of the Parties under this
Agreement shall no longer be effective or binding on
the Parties (including without limitation, the
exclusivity provisions in Section 3, AOL's obligation
to provide Impressions and Promotions, and MP's cross
promotion obligations). The provisions of this
Section 5.2.2 shall survive the termination of this
Agreement.
5.3 CONTINUED LINKS. Upon expiration or termination of this Agreement for
any reason, each Party may, at its discretion, continue to promote one
or more "pointers" or links from its sites or services to the other
Party's site or services (and MP acknowledges that access to the AOL
Service, CompuServe and certain other AOL properties or services may be
limited to subscribers to those services), and continue to use such
other Party's trade names, trademarks and service marks in connection
therewith (collectively, a "Continued Link"), subject to any reasonable
conditions or terms that the other Party may impose with respect to the
use of its trade names, trademarks and service marks; and provided that
unless this Agreement is terminated by MP due to a breach by AOL, the
terms of Section 5.2.2(a) shall continue to apply if and to the extent
that AOL provides links from an Exclusive Service to an MP Interactive
Site. The provisions of this Section 5.3 will survive the termination
of this Agreement.
5.4 DEFAULTS; 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 this Agreement by the
other Party which after forty five (45) days of written notice thereof
(or such shorter or longer period as may as specified elsewhere in this
Agreement) remains uncured; provided that AOL will not be required to
provide notice to MP in connection with MP's failure to make any
payments to AOL required hereunder, and the cure period with respect to
any scheduled payment will be fifteen (15) days from the date such
payment is due as provided herein. Notwithstanding the foregoing, in
the event of a material breach of a provision that expressly requires a
cure to be completed within a period shorter or longer than forty-five
(45) days, either Party may terminate this Agreement if the breach
remains uncured after such shorter or longer period expires.
5.5 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.
5.6 TERMINATION ON CHANGE OF CONTROL. In the event of a Change of Control
of MP resulting in control of MP by ***, AOL may terminate this
Agreement by providing thirty (30) days prior written notice of its
intent to terminate. Likewise, in the event of a Change of Control of
AOL resulting in AOL being controlled by ***, MP may terminate this
Agreement by providing thirty (30) days prior written notice of it
intent to terminate.
5.7 PRESS RELEASES. Each Party will submit to the other Party, for its
prior written approval, which will not be unreasonably withheld or
delayed, any press release or any other public statement ("Press
Release") regarding the transactions contemplated hereunder.
Notwithstanding the foregoing, either Party may issue Press Releases
and other disclosures as required by law without the consent of the
other Party and in such event, the disclosing Party will provide at
least five (5) business days prior written notice of such disclosure.
The failure by one Party to obtain the prior written consent of the
other Party prior to issuing a Press Release (except as required by
law) shall be deemed to be a material breach of this Agreement.
6. MANAGEMENT COMMITTEE/ARBITRATION.
19
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6.1 MANAGEMENT COMMITTEE. The Parties will act in good faith and use
commercially reasonable efforts to promptly resolve any claim, dispute,
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 promptly through
informal discussions, the Dispute will be submitted by either Party to
the Management Committee for resolution. For ten (10) days following
submission of the Dispute to the Management Committee, the Management
Committee will have the exclusive right to resolve such Dispute. 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 does
not agree to retain a mediator within fifteen (15) days following the
submission of the Dispute to the Management Committee, the Dispute will
be subject to the resolution mechanisms described below. "Management
Committee" will mean a committee made up of a senior executive from
each of the Parties for the purpose of resolving Disputes under this
Section 6.1 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 6.1 and then, only in compliance
with the procedures set forth in this Section 6. Until the Dispute is
resolved pursuant to Section 6, (i) any time periods specified in this
Agreement related to curing a default shall be stayed to the extent
that such cure period relates to a default that is in dispute, and (ii)
both Parties will continue to perform their respective obligations
hereunder without regard to such dispute to the maximum extent
possible. Nothing in this Section 6.1 shall prevent either Party from
seeking any injunctive relief to protect its interests in connection
with claims relating to proprietary rights, including but not limited
to intellectual property and confidentiality.
6.2 ARBITRATION. Except for Disputes relating to issues of proprietary
rights, including but not limited to intellectual property and
confidentiality, any Dispute not resolved by amicable resolution as set
forth in Section 6.1 will be governed exclusively and finally by
arbitration. Such arbitration will be conducted by the American
Arbitration Association ("AAA") in New York, New York, and will be
initiated and conducted in accordance with the Commercial Arbitration
Rules ("Commercial Rules") of the AAA, including the AAA Supplementary
Procedures for Large Complex Commercial Disputes ("Complex
Procedures"), as such rules will be in effect on the date of delivery
of a demand for arbitration ("Demand"), except to the extent that such
rules are inconsistent with the provisions set forth herein.
Notwithstanding the foregoing, the Parties may agree in good faith that
the Complex Procedures will not apply in order to promote the efficient
arbitration of Disputes where the nature of the Dispute, including
without limitation the amount in controversy, does not justify the
application of such procedures.
6.3 SELECTION OF ARBITRATORS. The arbitration panel will consist of three
arbitrators. Each Party will name an arbitrator within ten (10) days
after the delivery of the Demand. The two arbitrators named by the
Parties may have prior relationships with the naming Party, which in a
judicial setting would be considered a conflict of interest. The third
arbitrator, selected by the first two, should be a neutral participant,
with no prior working relationship with either Party. If the two
arbitrators are unable to select a third arbitrator within ten (10)
days, a third neutral arbitrator will be appointed by the AAA from the
panel of commercial arbitrators of any of the AAA Large and Complex
Resolution Programs. If a vacancy in the arbitration panel occurs after
the hearings have commenced, the vacancy shall be filled by the Party
who named such arbitrator, or in the case of the neutral arbitrator, by
the other two arbitrators or the AAA under the procedure described
above. Until such replacement arbitrator is named and accepts the role
of an arbitrator, the remaining arbitrator or arbitrators may not
continue with the hearing and determination of the controversy, unless
the Parties agree otherwise.
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6.4 GOVERNING LAW OF ARBITRABILITY. The Federal Arbitration Act, 9 U.S.C.
Secs. 1-16, and not state law, will be used to determine whether a
Dispute hereunder can be resolved by arbitration, it being the intent
of the Parties to have all Disputes (other than Disputes relating to
issues of proprietary rights, including but not limited to intellectual
property and confidentiality) governed by the procedures set forth in
this Section 6. The arbitrators will allow such discovery as is
appropriate to the purposes of arbitration in accomplishing a fair,
speedy and cost-effective resolution of the Disputes. The arbitrators
will reference the Federal Rules of Civil Procedure then in effect in
setting the scope and timing of discovery. The Federal Rules of
Evidence will apply in toto. The arbitrators may enter a default
decision against any Party who fails to participate in the arbitration
proceedings.
6.5 ARBITRATION AWARDS. The arbitrators will have the authority to award
compensatory damages only. Any award by the arbitrators will be
accompanied by a written opinion setting forth the findings of fact and
conclusions of law relied upon in reaching the decision. The award
rendered by the arbitrators will be final, binding and non-appealable,
and judgment upon such award may be entered by any court of competent
jurisdiction. The Parties agree that the existence, conduct and content
of any arbitration will be kept confidential and no Party will disclose
to any person any information about such arbitration, except as may be
required by law or by any governmental authority or for financial
reporting purposes in each Party's financial statements.
6.6 FEES. Each Party will pay the fees of its own attorneys, expenses of
witnesses and all other expenses and costs in connection with the
presentation of such Party's case (collectively, "Attorneys' Fees").
The remaining costs of the arbitration, including without limitation,
fees of the arbitrators, costs of records or transcripts and
administrative fees (collectively, "Arbitration Costs") will be borne
equally by the Parties.
6.7 NON-ARBITRATABLE DISPUTES. Any Dispute that is not subject to to
arbitration under this Section 6 (collectively, "Non-Arbitration
Claims") will be brought in any court of competent jurisdiction in the
State of Delaware, except for actions seeking injunctive relief that,
because of the specific nature of relief sought, are legally required
to be filed in another jurisdiction. Each Party irrevocably consents to
the exclusive jurisdiction of the courts of the State of Delaware and
the federal courts situated in the State of Delaware, over any and all
Non-Arbitration Claims and any and all actions to enforce such claims
or to recover damages or other relief in connection with such claims,
except for actions seeking injunctive relief that, because of the
specific nature of relief sought, are legally required to be filed in
another jurisdiction.
6.8 EXHIBITS. All of the Exhibits attached hereto are each hereby made a
part of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
Effective Date.
----------------------------------------- --------------------------------------
AMERICA ONLINE, INC. EMW ENERGY SERVICES CORP.
By: /s/ DAVID COLBURN By: /s/ JIMMIE L. WILLIAMS
------------------ -----------------------
Name: David Colburn Name: Jimmie L. Williams
Title: President, Business Affairs Title: Vice President
----------------------------------------- --------------------------------------
----------------------------------------- --------------------------------------
21
<PAGE>
EXHIBITS
A PLACEMENTS/PROMOTIONS/IMPRESSIONS
A-1 REWARDS PROMOTIONS
B DEFINITIONS
C CROSS PROMOTIONS
C-1 AFFILIATE PROGRAM TERMS AND CONDITIONS
D MP PRODUCTS AND OTHER CONTENT
E OPERATIONS
F STANDARD ONLINE COMMERCE TERMS AND CONDITIONS
G STANDARD LEGAL TERMS AND CONDITIONS
H LIST OF MP COMPETITORS
I STOCK SUBSCRIPTION AGREEMENT
<PAGE>
EXHIBIT A
PLACEMENT/PROMOTION
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
AOL SERVICE COPY SIZE YEAR 1 YEAR 2 YEAR 3 YEAR 4 YEAR 5 YEAR 6
IMPRESSIONS* IMPRESSIONS* IMPRESSIONS* IMPRESSIONS* IMPRESSIONS* IMPRESSIONS*
<S> <C> <C> <C> <C> <C> <C> <C>
AOL BANKING PACKAGE (STATE TBD) 234X60 *** *** *** *** *** ***
Welcome Screen w/ Graphic** Text *** *** *** *** *** ***
w/Graphic
Welcome Screen w/out Graphic** Text *** *** *** *** *** ***
ROS: Demo & Geographically Targeted 234x60 *** *** *** *** *** ***
Email: Targeted 175x45 *** *** *** *** *** ***
------------------------------------------------------------------------------------------------------------------------------------
AOL SERVICE TOTAL: *** *** *** *** *** ***
------------------------------------------------------------------------------------------------------------------------------------
DIGITAL CITY
Targeted Promotion within Specific 234x60 *** *** *** *** *** ***
Markets (Markets TBD)***
Targeted Text Promotion within Text *** *** *** *** *** ***
Specific Markets (Markets TBD)***
ROS (Targeted Markets: TBD) 234x60 *** *** *** *** *** ***
Content Integration & Sponsorship**** TBD *** *** *** *** *** ***
------------------------------------------------------------------------------------------------------------------------------------
DIGITAL CITYTOTAL: *** *** *** *** *** ***
------------------------------------------------------------------------------------------------------------------------------------
COMPUSERVE
Geo-Targeted Pop-Ups 200Wx250D *** *** *** *** *** ***
Pixel
Geo-Targeted Direct Emails Text *** *** *** *** *** ***
Geo-Targeted Ad Banners 468x60 *** *** *** *** *** ***
Home & Family Banners 468x60 *** *** *** *** *** ***
Personal Finance Banners 468x60 *** *** *** *** *** ***
------------------------------------------------------------------------------------------------------------------------------------
COMPUSERVETOTAL: *** *** *** *** *** ***
------------------------------------------------------------------------------------------------------------------------------------
AGGREGATE TOTAL IMPRESSIONS: *** *** *** *** *** ***
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
* Specific line item Impressions totals are estimated.
**Welcome Screen MUST link to an AOL Native Screen (and not to a page of the
Affiliated MP Site).
***Impressions are estimated variable based on content.
****Integration of MP content in relevant DCI markets as determined by DCI.
Year 1: Effective Date-3/31/2001; Year 2: 4/1/2001-3/31/2002; Year 3:
4/1/2002-3/31/2003; Year 4: 4/1/2003-3/31/2004; Year 5: 4/1/2004-3/31/2005; Year
6: 4/1/2005-11/30/2005.
A-1
<PAGE>
1. During the Term, subject to the terms and conditions hereof, MP shall
have the right to use the Keyword Search Terms as are mutually agreed
upon by the Parties hereto.
2. "Collar" shall mean ***% of the Impressions Commitment in any of Years
1, 2, 3, 4, 5, or 6 as provided in the chart above.
3. The parties agree that MP shall launch the Affiliated MP Site on or
prior to June 30, 2000, and the date of such launch shall be the "Site
Launch Date". MP shall inform AOL of the Site Launch Date no later than
24 hours after such Site Launch Date shall have occurred. The Parties
hereby acknowledge that, notwithstanding anything else to the contrary
contained in this Agreement, AOL may deliver a number of Impressions
that are less than or equal to, but not exceeding, ***% of the
Impressions Commitment for Year 1 of the Term prior to the Site Launch
Date. Subject to the terms of Section 1.3.1, MP shall determine the
content of Promotions to which AOL shall deliver such Impressions
pursuant to this Paragraph 3 of this Exhibit A and such Promotions will
either be of a non-clickable nature or will link to an area as mutually
agreed upon by the Parties hereto.
4. From time to time, subject to the provisions of Sections 1.2.3 and 1.4
hereof and AOL's then-current guidelines for reallocating promotions,
MP may elect to exchange any Promotions identified above for the same
type of Promotions (e.g., banner advertisements for banner
advertisements) or the location of Promotions (e.g., Welcome Screen
Promotions for Personal Finance promotions) within the same Exclusive
Service or across Exclusive Services. For purposes of exchanging
Promotions, the relative value of new Promotions and Promotions to be
exchanged shall be based upon AOL's then-current rate card for such
Promotions, respectively. All exchanges of Promotions shall be subject
to availability (including, without limitation, availability limited by
AOL's exclusivity and other preferential commitments), as reasonably
determined by AOL. MP may request such adjustments to the Promotions no
more frequently than once each quarter.
A-2
<PAGE>
EXHIBIT A-1
REWARDS PROMOTIONS
1. PROMOTION ON THE AOL SERVICE. AOL shall promote the Rewards
Promotions on the AOL Service as follows: MP shall receive a
promotional, rotating presence on the Rewards Program Main
Screen on the AOL Service; (b) MP shall receive a promotional,
rotating presence on the Rewards Program "Earn Points Now"
sub-screen on the AOL Service; and (c) MP shall receive
promotional placements in other appropriate locations on the
AOL Service as MP and AOL may mutually agree. Notwithstanding
the foregoing, AOL reserves the right to redesign and/or
modify the organization, structure, "look and feel",
navigation and other elements of Rewards Program promotional
areas on the AOL Service. If AOL redesigns or modifies any
such elements of the Rewards Program in a manner that
substantially modifies the nature of the promotion a material
adverse fashion, AOL will work with MP in good faith to
provide MP with comparable promotion.
2. OTHER AOL PROMOTIONS. AOL shall, from time to time during the
Term, promote the MP Rewards Offers through the following
communication channels available to AOL at AOL's sole
discretion: (a) Rewards Program subscriber statements,
including e-mail statements; (b) Award confirmation e-mails;
and (c) Newsletters and promotions sent to AOL Members with an
Rewards Points balance.
A-1-1
<PAGE>
EXHIBIT B
DEFINITIONS
The following definitions will apply to this Agreement:
AAA. As defined in Section 6.2.
ADDITIONAL MP CHANNEL. Any other electronic, interactive 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.
AFFILIATED MP SITE. The specific customized area or web site to be promoted
and distributed by AOL hereunder that is accessed by and accessible to AOL
Users through the AOL Network, through which MP will market the MP Products
in accordance with the terms of this Agreement.
AGGREGATOR. An entity that sells or promotes multiple lines of products
and/or services and is not primarily a provider of energy services (i.e., is
primarily engaged in activities other than the promotion and sale of Energy
Products).
AOL EXCLUSIVE OFFERS. As defined in Section 2.6.
AOL INTERACTIVE SITE. Any Interactive Site that is managed, maintained, owned
or controlled by AOL or its affiliates.
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, CompuServe or
Digital City.
AOL MEMBER. Any authorized user of any of the Exclusive Services, including
any sub-accounts using an Exclusive Service under an authorized master
account.
AOL NETWORK. (i) The AOL Service, (ii) CompuServe, (iii) Digital City, 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,
CompuServe or Digital City).
AOL PURCHASER. Any person or entity who enters the Affiliated MP Site from
the AOL Network, including, without limitation, from any third party area
therein (to the extent entry from such third party area is traceable through
both Parties' commercially reasonable efforts), and either (A) agrees to
receive any MP Energy Product and remains a customer of MP's Energy Products
for three billing cycles, or (B) purchases non-Energy Products in an amount
representing at least $300 in the aggregate. AOL Purchasers are counted only
once per household; subsequent or additional purchases by a person or entity
are not counted as additional AOL Purchasers (except to the extent that
additional purchases are required to achieve the aforementioned threshold of
$300 per month). A move to a new residence or location shall not be counted
as an additional AOL Purchaser if the person or entity transfers an existing
service from its old residence or location to its new residence or location.
AOL SERVICE. The standard narrow-band U.S. version of the America Online-R-
brand service, specifically excluding (a) AOL.com, Netcenter or any other AOL
Interactive Site, (b) the international versions of an America Online-R-
brand service (E.G., AOL Japan), (c) the CompuServe-R- brand service and any
other CompuServe products or services, (d) "Driveway," "ICQ-TM-," "AOL
Search-TM-," "AOL Instant Messenger-TM-," "Digital City," "NetMail-TM-,"
"Electra", "Thrive", "Real Fans", "Love@AOL", "Entertainment Asylum," "AOL
Hometown," "My News," "My Calendar," "You've Got Pictures," 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) 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
B-1
<PAGE>
limitation, Content areas controlled by other parties and member-created
Content areas), (f) 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, (g) any property,
feature, product or service which AOL or its affiliates may acquire
subsequent to the Effective Date that is maintained as a separate service and
is not made part of the standard, narrow-band U.S. version of the AOL brand
service, and (h) 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 or services, including, without limitation, any
co-branded version of the service or any version distributed through any
broadband distribution platform or though any platform or device other than a
desktop personal computer. In the case of a service described in clause (h),
the mere delivery method technology, in and of itself, will in no way cause
such site or service to be excluded from the definition of the applicable
site or service such that, delivery of the site or service to a personal
computer via cable modem, high speed telephone connection (e.g. DSL or ISDN)
or satellite does not, alone thereby cause such site or service to be
excluded from the definition of the applicable site or service, provided
however if such resulting site or service is otherwise materially different
from the primary, narrow band U.S. version of that site or service,
including, without limitation, any third party co-branded version of the site
or service or any version distributed through any broadband distribution
platform or through any platform or device other than a desktop personal
computer, then any such distinctions shall suffice to exclude such site or
service from the applicable definition of the applicable site or service.
Notwithstanding anything to the contrary in the foregoing, AOL's integrated
bill payment product shall be deemed to be part of the AOL Service.
AOL SERVICE MEMBER. As defined in Section 1.5.1.
AOL USER. Any user of the AOL Service, CompuServe, Digital City, or the AOL
Network.
APPLIANCE. As defined in Exhibit D.
ARBITRATION COSTS. As defined in Section 6.7.
ATTORNEY'S FEES. As defined in Section 6.7.
BLACKOUT PERIOD. As defined in Section 3.3.2.
BUNDLED SERVICES. As defined in Exhibit D.
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.
COLLAR. As defined in Exhibit A.
COMPLEX PROCEDURES. As defined in Section 6.2.
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 (including
without limitation, Content areas
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controlled by other parties and member-created Content areas), (e) any yellow
pages, white pages, classifieds or other search, directory or review services
or Content and (f) any co-branded or private label branded version of the
U.S. version of the CompuServe brand service, (g) 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 (h) any property, feature,
product or service which CompuServe or its affiliates may acquire subsequent
to the Effective Date that is maintained as a separate service and is not
made part of, or offered in, the standard, narrow-band U.S. version of the
CompuServe brand service. In the case of a service described in clause (h),
the mere delivery method technology, in and of itself, will in no way cause
such site or service to be excluded from the definition of the applicable
site or service such that, delivery of the site or service to a personal
computer via cable modem, high speed telephone connection (e.g. DSL or ISDN)
or satellite does not, alone thereby cause such site or service to be
excluded from the definition of the applicable site or service.
Notwithstanding anything to the contrary in the foregoing, AOL's integrated
bill payment product shall be deemed to be part of CompuServe.
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, (i) the material terms of this Agreement, (ii) information about
AOL Members, AOL Users and AOL Purchasers, (iii) information about MP's
customers, sales, marketing plans or businesses, (iv) technical processes and
formulas, source codes and product designs, and (v) sales, cost and other
unpublished financial information, product and business plans, projections,
and marketing data of either Party. "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, (d) lawfully obtained from any third party, or (e) is
independently developed by a Party without reference to any disclosed
information.
CONTENT. Text, images, video, audio (including, without limitation, music
used in synchronism or timed relation with visual displays) and other data,
products, services advertisements, promotions, URLs, links, pointers,
technology and software, including any modifications, upgrades, updates,
enhancements and related documentation.
CONTINUED LINK. As defined in Section 5.3.
DEMAND. As defined in Section 6.2.
DEREGULATED ENERGY PRODUCT. Either electricity or natural gas, as the case
may be, that can be sold in a Deregulated Market.
DEREGULATED MARKET. With respect to either natural gas or electricity, any
market in the United States in which legislation is enacted which will permit
an entity other than the regulated utility or distribution company to sell
natural gas or electricity on and after the Market Open Date.
DIGITAL CITY. The standard, narrow-band U.S. version of Digital City's local
content offerings marketed under the Digital City-R- brand name, specifically
excluding (a) the AOL Service, or any other AOL Interactive Site, (b) any
international versions of such local content offerings, (c) the CompuServe-R-
brand service and any other CompuServe products or services (d) "Driveway,"
"ICQ-TM-," "AOL Search-TM-," "AOL Instant Messenger-TM-," "Digital City,"
"NetMail-TM-," "Electra", "Thrive", "Real Fans", "Love@AOL", "Entertainment
Asylum," "AOL Hometown," "My News," "My Calendar," "You've Got Pictures," or
any similar independent product, service or property which may be offered by,
through or with the standard narrow band version of Digital City's local
content offerings, (e) any programming or Content area offered by or through
such local content offerings over which AOL does not exercise complete
operational control (including, without limitation, Content areas controlled
by other parties and member-created Content areas), (f) any yellow pages,
white pages, classifieds or other search, directory or review services or
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Content offered by or through such local content offerings, (g) any property,
feature, product or service which AOL or its affiliates may acquire
subsequent to the Effective Date that is maintained as a separate service and
is not made part of the standard, narrow-band U.S. version of the Digital
City brand service, (h) any other version of a Digital City local content
offering which is materially different from the narrow-band U.S. version of
Digital City's local content offerings marketed under the Digital City-R-
brand name, by virtue of its branding, distribution, functionality, Content
or services, and (i) Digital City-branded offerings in any local area where
such offerings are not owned or operationally controlled by America Online,
Inc. or DCI (e.g., Chicago, Orlando, South Florida, and Hampton Roads). In
the case of a service described in clause (h), the mere delivery method
technology, in and of itself, will in no way cause such site or service to be
excluded from the definition of the applicable site or service such that,
delivery of the site or service to a personal computer via cable modem, high
speed telephone connection (e.g. DSL or ISDN) or satellite does not, alone
thereby cause such site or service to be excluded from the definition of the
applicable site or service.
ENERGY PRODUCT. As defined in Exhibit D.
ENERGY RELATED PRODUCT. As defined in Exhibit D.
EXCLUSIVE MP PRODUCTS. Energy Products and Energy Related Products.
EXCLUSIVE SERVICES. AOL Service, Digital City, and CompuServe, and any other
services that become an Exclusive Service pursuant to Section 3.5.
FINAL SHORTFALL. As defined in Section 1.2.4.
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.
IMPRESSIONS COMMITMENT As defined in Section 1.2.
INFORMATION SERVICES. As defined in Exhibit D.
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 SEARCH TERMS. (a) The Keyword-TM- online search terms made available
on the AOL Service, combining AOL's Keyword-TM- online search modifier with a
term or phrase specifically related to MP (and determined in accordance with
the terms of this Agreement), and (b) the Go Word online search terms made
available on CompuServe, combining CompuServe's Go Word online search
modifier with a term or phrase specifically related to MP and determined in
accordance with the terms of this Agreement).
LICENSED CONTENT. All Content offered through the Affiliated MP Site 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.
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LOOK SEE DATE. As defined in Section 3.6.
MARKET OPEN DATE. With respect to a Deregulated Market, the first date on which
MP is legally able to deliver the Deregulated Energy Product in such Deregulated
Market.
MIGRATE. To move from either the AOL Service or CompuServe to another paid
service on the AOL Network (other than the AOL Service or CompuServe), and in
connection with such move to terminate membership in the service from which such
move was made.
MOVING SERVICES. As defined in Exhibit D.
MP COMPETITOR. As of the Effective Date, an "MP Competitor" shall be any of the
entities listed in Exhibit H attached hereto. From time to time, and subject to
the prior approval of AOL, which approval shall not be unreasonably withheld or
delayed, MP may add entities as additional MP Competitors if they satisfy either
of the following criteria: (i) such entity derives more than 10% of its total
gross revenue from Energy Products, as measured over the four quarters preceding
such measurement, or (ii) such entity has acquired more than 400,000 customers
who have purchased Energy Products in the preceding twelve (12) months.
Additionally, in the event that MP believes that an entity should be an MP
Competitor, but such entity does not satisfy the requirements of (i) or (ii)
above, MP shall have the right to request that such entity be deemed an MP
Competitor; provided that prior to requesting that such entity be deemed an MP
Competitor hereunder, MP shall first demonstrate to AOL's reasonable
satisfaction that such entity (a) poses a significant and substantial
competitive threat to MP's core business, (b) if not treated as an MP
Competitor, a relationship between AOL and such entity would have a materially
adverse impact on MP's ability to generate significant amounts of AOL Purchasers
hereunder, and (c) treating such entity as an MP Competitor hereunder will have
a direct and measurable impact on preventing or changing the occurrence of the
events outlined in subparagraphs (a) and (b) above. Such entity shall not be
added to Exhibit H as an MP Competitor unless AOL agrees in writing.
MP INTERACTIVE SITE. Any Interactive Site (other than the Affiliated MP Site)
which is managed, maintained, owned or controlled by MP or its agents.
MP PRODUCTS. Energy Products, Energy Related Products and Other Related
Products.
OTHER RELATED PRODUCTS. Defined in Exhibit D.
PRESS RELEASE. As defined in Section 5.1.
PRIVATE PLACEMENT. The sale of equity of MP for at least $60 million in one or
more transactions.
PROMO CONTENT. As defined in Section 1.3.1.
PROMOTIONS. The promotions described on Exhibit A, any comparable promotions
delivered by AOL in accordance with Section 1.1, and any additional promotions
of the Affiliated MP Site provided by AOL (including, without limitation,
additional Keyword Search Terms and other navigational tools).
REFUND RATE. $*** per Impression.
REGULATED MARKET. With respect to either electricity or natural gas, any market
that is not a Deregulated Market.
SALES REPORTS. As defined in Section 4.6.2.
SHORTFALL. As defined in Section 1.2.2.
SITE LAUNCH DATE. As defined in paragraph 3 of Exhibit A.
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SUBSCRIPTION AGREEMENT. The Subscription Agreement attached hereto as Exhibit I.
TARGETED SERVICE. A paid subscription service on the AOL Network other than AOL
Service, or CompuServe.
TRANSACTION TAXES. Any sales or use tax, excise tax, or any other tax or fee
imposed on a per-transaction basis.
TERM. As defined in Section 5.1.1.
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EXHIBIT C
CROSS PROMOTIONS
1. ONLINE PROMOTIONS. Subject to the terms of this Section 1 of Exhibit C,
with respect to any MP Interactive Site (other than any MP Interactive Site
which MP has created or is managing in conjunction with or on behalf of an
Interactive Service), in the event that MP promotes or provides a placement for
any Interactive Service other than AOL on any MP Interactive Site, MP agrees to
promote the AOL Network in a manner which is of equal prominence to the manner
in which MP promotes such other Interactive Service. The determination of "equal
prominence" will be made mutually by the Parties twice per year (as agreed upon
by the Parties), will be measured in the aggregate (i.e., MP's promotion of the
AOL Network will be compared with MP's promotion of such other Interactive
Service over a six-month review period), and will be based on the level and
number of promotions, not on the ultimate effectiveness of the promotions
("Equal Prominence"). If after any six-month review period it is determined that
MP has failed to meet its commitment to promote the AOL Network as required
under this Section 1 of Exhibit C, then MP will have 30 days to develop a plan
to cure such failure (subject to AOL's agreement that such plan will cure such
failure) and 90 days to implement such plan. Additionally, MP hereby enters into
AOL's affiliate program for new member acquisitions as outlined at
http://affiliate.aol.com/affiliate and in accordance with the terms and
conditions attached hereto as Exhibit C-1.
2. OFF-LINE PROMOTIONS. Subject to the terms of this Exhibit C, MP agrees
to promote AOL, the AOL Keyword Search Term (or any equivalent navigational tool
on any of the Exclusive Services) or the Affiliated MP Site with Equal
Prominence to the promotion of any other MP Interactive Sites in MP's
television, radio, print and "out of home" (e.g., buses and billboards)
advertisements over which MP has substantial editorial control, and shall
advertise the availability of the Affiliated MP Site through the AOL Network in
such media (by way of site name, related company name, URL or otherwise). If
after any six-month review period it is determined that MP has failed to meet
its commitment to promote the Affiliated MP Site as required under this Section
2 of Exhibit C, then MP will have 30 days to develop a plan to cure such failure
(subject to AOL's agreement that such plan will cure such failure) and 90 days
to implement such plan.
3. OTHER COOPERATION. AOL and MP shall cooperate to develop and implement
direct mailings or other promotions directly to the AOL Members (or segments of
AOL Members), provided that MP pays the costs of such promotions and AOL
controls the mailings and is not required to divulge to MP any information
relating to the AOL Members. AOL and MP shall also cooperate in exploring other
cross-promotional activities mutually beneficial to the Parties. In the event
the Parties pursue such cross-promotional activities, AOL shall offer to MP
commercially reasonable market rates, which in no event will exceed AOL's
then-current rate card.
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EXHIBIT C-1
AFFILIATE NETWORK AGREEMENT
AOL AFFILIATE NETWORK AGREEMENT
EFFECTIVE DATE: 11/1/99
READ THIS CAREFULLY BEFORE SUBMITTING THE APPLICATION (THE "APPLICATION") FOR
PARTICIPATION IN THE AOL AFFILIATE NETWORK PROGRAM (THE "PROGRAM"). This is a
binding agreement (the "AGREEMENT") between the individual submitting the
Application or the entity on whose behalf the Application is being submitted
("YOU" and "YOUR") and America Online, Inc. ("AOL"). By submitting the
Application, you hereby ACCEPT AND AGREE to all of the terms and conditions set
forth in this Agreement.
1. APPLICATION PROCESS. By submitting the Application you are expressing your
desire to participate in the Program through which you may promote certain AOL
products and services and are compensated for the number of qualified
individuals that use such products and services as a direct result of your
promotion. As part of the Application you must submit the principal address of
your web site (the "WEBSITE") upon which you desire to place the AOL Promos (as
defined in Section 2). You represent and warrant that: (i) the information
submitted in the Application is truthful and accurate; (ii) the person
submitting the Application is at least 18 years old; (iii) in the event you are
an entity, the person submitting the Application has the full right, power and
authority to enter into this Agreement on behalf of such entity; and (iv) the
execution of this Agreement by such person, and the performance by you of your
obligations and duties hereunder, do not and will not violate any agreement to
which you are a party or by which you are otherwise bound. You acknowledges that
AOL makes no representations, warranties or agreements related to the subject
matter hereof that are not expressly provided for in this Agreement. AOL will
evaluate the Application and will notify you of AOL's acceptance or rejection of
the Application in a timely manner. AOL may reject the Application if the
Website is deemed in AOL's sole discretion to be unsuitable for the Program.
Unsuitable web sites include, but are not limited to, those that:
1.1 Contain sexually explicit or obscene materials, or materials that are
otherwise deemed offensive;
1.2 Advocate discrimination based on race, sex, religion, nationality,
disability, sexual orientation, or age.
1.3 Promote or engage in illegal activities;
1.4 Violate intellectual property rights of third parties;
1.5 Contain or promote deceptive information;
1.6 Promote gambling; or
1.7 Violate AOL's "PRIVACY POLICY" available at
http://www.aol.com/info/privacy.html, as may be modified from time to time
by AOL in its sole discretion.
2. LINKING WITH, AND USE OF, AOL PROMOS. In the event your Application is
accepted by AOL, you may use (to the extent provided in Article 4 below) the
electronic graphic artwork and corresponding links to AOL products including the
special promotion identifier and all HTML thereto (the "AOL PROMOS") available
at http://AOL.reporting.net (the "REPORTING SITE") as necessary to participate
in the Program. AOL will provide the HTML for such links at the Reporting Site,
including a special promotion identifier that will make possible tracking and
reporting of all Qualified New Members (as defined in Section 5) acquired
through your Website. It is your responsibility to integrate the AOL Promos into
your Website properly in accordance with the instructions available at the
Reporting Site, and AOL shall not be liable to you with respect to your failure
properly to integrate the AOL Promos into your Website, including to the extent
such failure may result in any reductions of amounts that would otherwise be
paid to you under this Agreement. You agree not to modify any AOL Promos in any
way without the express written permission of AOL. You may only display the AOL
Promos on your Website, and if you have multiple web sites other than the
Website, you must submit an Application for each such web site to display the
AOL Promos on
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such web site. Without limiting the foregoing, you shall not promote or
otherwise announce the availability of the AOL Promos on your Website
anywhere other than within your Website, including but not limited to using
the AOL Promos in e-mail and promoting or otherwise announcing the
availability of the AOL Promos on your Website through e-mail.
3. YOUR WEBSITE. You are solely responsible for, and AOL hereby disclaims all
liability for, the development, operation and maintenance of, and all costs
associated with, your Website, any content thereon and any equipment therefor.
You hereby agree that your Website shall not, in any way, copy or resemble the
look and feel of, or create the impression that it is, part of the AOL Service
or any of AOL's or its affiliates' or subsidiaries' web sites. You agree that
your Website shall at all times during the Term of the Agreement comply with the
policies identified in Section 1.7, and shall not engage in any of the
activities listed in Sections 1.1 through 1.6.
4. LIMITED LICENSE TO USE AOL PROMOS. AOL hereby grants to you a nonexclusive,
revocable license to display on your Website the AOL Promos solely as necessary
for, and for the purpose of, promoting the products and/or services associated
with the AOL Promos as set forth at the Reporting Site and identifying you as a
participant in the Program. To the extent, if any, that AOL Promos contain AOL's
trademarks, service marks or trade names, you shall not use such marks in a
manner that might be deemed to create a unitary composite mark. You agree not to
use the AOL Promos in a manner that is, or otherwise include materials on your
Website that are, disparaging of AOL. AOL reserves all proprietary rights in and
to the AOL Promos not expressly granted herein. You agree this license can be
revoked at any time for any or no reason upon notice by AOL to you (regardless
of termination of this Agreement) and you agree upon receipt of such notice
immediately to cease using all AOL Promos.
5. PAYMENTS
5.1 REFERRAL FEES. On a monthly basis, within thirty (30) days after the
end of each calendar month, AOL shall pay you a "FEE" for each Qualified
New Member who registered for a type of plan for the AOL Service set forth
below directly from a link within the AOL Promos on your Website using the
special promotion identifier and thereafter became a Qualified New Member
in such month. "QUALIFIED NEW MEMBER" means any person or entity who
registers for the AOL Service during the Term as a direct result of your
promotion of the AOL Service by linking from one of the AOL Promos on your
Website using your special promotional identifier and who pays the
then-standard fees required for membership to the AOL Service through at
least two (2) consecutive billing cycles (excluding any standard free trial
period). The minimum Fee for the each of the following type(s) of plans for
the AOL Service is as follows:
SERVICE TYPE FEE/QUALIFIED NEW MEMBER
Unlimited Usage AOL Service US $15
AOL may choose to offer you a higher Fee for a particular period of time or
for particular types of AOL Service. AOL will either provide you notice of
such higher Fee to the e-mail address in your Application or will post
notice of such higher Fee on the Reporting Site. You acknowledge that AOL
may offer a Fee to other participants in the Program that is higher than
the Fee you receive. Nothing in the foregoing shall limit AOL's ability to
lower the minimum Fee contained herein in accordance with Article 7.
5.2 MONTHLY BONUS. In addition to the Fees above, within thirty (30) days
after the end of each calendar month, AOL will pay you a bonus for each
calendar month in which the number of Qualified New Members for which AOL
paid a Fee to you pursuant to Section 5.1 for such month exceeds
twenty-four. The amount of such bonus shall be as follows:
<TABLE>
<CAPTION>
QUALIFIED NEW MEMBERS TOTAL BONUS
--------------------- -----------
<S> <C>
25-50 US $75
51-99 US $175
100-249 US $400
-E 250 US $1,125
</TABLE>
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5.3 ANNUAL BONUSES. In addition to the Fees above, within thirty (30) days
after the end of the calendar year, AOL will pay you $20,000 for every
5,000 Qualified New Members obtained through the AOL Promos on your Website
using your special promotion identifier during such calendar year (e.g. AOL
will pay you $40,000 if 14,999 Qualified New Members are acquired during a
calendar year).
5.4 LIABILITY FOR PAYMENT. AOL's sole obligation in regards to remitting
payment to you for the payments described in Sections 5.1 through 5.3 shall
be to mail such payment to the address submitted to AOL in the Application
or in the event your address changes, to the address thereafter submitted
at the Reporting Site. You are solely responsible for assuring your address
of record is current and correct. In the event a payment sent to such
address is returned to AOL for any reason other than an error in such
address on the part of AOL, you shall be responsible for requesting that
such payment is resent to you and for verifying the address to which such
payment is to be sent. AOL shall not be liable for any payment to you if
AOL deems that you have engaged in any fraudulent or criminal activity in
connection with the Program.
6. REPORTING. Through the Reporting Site AOL shall provide you with monthly
reports setting forth the number of impressions that your Website generated of
the AOL Promos, clickthroughs to an AOL web site that were generated from AOL
Promos on your Website, and Qualified New Members obtained by AOL through your
Website in the preceding month. AOL shall also provide monthly reports detailing
the monthly volume bonuses that are due to you. Also, on a calendar year basis,
AOL will provide a report detailing any annual bonus that is due to you. The
form, content and timing of the foregoing reports may vary from time to time in
AOL's sole discretion.
7. MODIFICATION OF THIS AGREEMENT. AOL may modify any terms and conditions in
this Agreement, including any amounts payable as Fees and bonuses under Article
5, at any time in its sole discretion by posting a notice or a new Agreement on
the Reporting Site, but such new Agreement shall be effective no sooner than
five (5) days after such notice or new Agreement is posted on the Reporting
Site. YOUR SOLE REMEDY AND RECOURSE IN THE EVENT ANY SUCH MODIFICATION IS
UNACCEPTABLE TO YOU IS TO TERMINATE THIS AGREEMENT, PROVIDED THAT AOL SHALL PAY
TO YOU ALL AMOUNTS DUE TO YOU PRIOR TO YOUR TERMINATION IN ACCORDANCE WITH
SECTION 11.1. Notwithstanding the five (5) day notice period for termination
provided in Article 9, such termination by you in the event of a modification
shall be effective immediately upon receipt by AOL of notice thereof. Your
continued participation in the Program after such five (5) day period has passed
shall constitute acceptance of the modifications.
8. PRESS RELEASES; PUBLICITY. All press releases and other publicity regarding
the content of this AOL Affiliate Network Agreement shall be governed by Section
5.7 of the Interactive Marketing Agreement.
9. TERM AND TERMINATION. This Agreement shall be effective on the date AOL
accepts the Application and shall continue until either party terminates this
Agreement as set forth herein (the "TERM"). Either party may terminate this
Agreement at any time for any or no reason upon five (5) days notice, (i) in the
case of termination by AOL, to you at either, at AOL's option, the e-mail
address contained in the Application or by posting such notice on the Reporting
Site, and (ii) in the case of termination by you, to AOL at the following email
address: [email protected].
10. LIMITATION OF LIABILITY; DISCLAIMER; INDEMNIFICATION.
10.1 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 IN CONNECTION WITH THIS AGREEMENT, EVEN IF EITHER PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (COLLECTIVELY,
"DISCLAIMED DAMAGES"); PROVIDED THAT YOU SHALL REMAIN LIABLE TO AOL TO THE
EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT
TO INDEMNIFICATION PURSUANT TO SECTION 10.3. IN NO EVENT SHALL THE
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LIABILITY OF AOL IN CONNECTION WITH THIS AGREEMENT FOR DAMAGES NOT EXCLUDED
IN THE IMMEDIATELY PRECEDING SENTENCE EXCEED THE AMOUNT PAID OR PAYABLE BY
AOL TO YOU UNDER THIS AGREEMENT.
10.2 NO ADDITIONAL WARRANTIES. YOUR WEBSITE (EXCEPT AS PROVIDED IN SECTION
1.1), ALL OF AOL'S AND ITS AFFILIATE'S WEB SITES, THE AOL PROMOS, THE AOL
SOFTWARE AND AOL SERVICE (COLLECTIVELY, "SUBJECT MATTER") ARE PROVIDED "AS
IS" AND "AS AVAILABLE." 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 SUBJECT
MATTER, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR
COURSE OF PERFORMANCE.
10.3 INDEMNIFICATION. You agree to defend, indemnify and hold harmless AOL,
its subsidiaries and affiliates, and their respective officers, directors,
agents, distributors, franchisees and employees (the "INDEMNIFIED PARTIES")
against any loss, damage, expense, or cost, including reasonable attorneys
fees (including allocated costs for in-house legal services) arising out of
any claim, demand, action, suit, investigation, arbitration or other
proceeding by a third party ("LIABILITIES") based on (i) your material
breach of any covenant, duty, representation, or warranty of this
Agreement, (ii) materials contained on your Website (including any
allegation that such materials infringe a third party's proprietary
rights), (iii) or otherwise related to your Website and the content
thereon.
11. MISCELLANEOUS.
11.1 SURVIVAL. Article 10 and Section 11.2, 11.4 shall survive the
expiration or termination of this Agreement. Additionally, to the extent
this Agreement is not terminated as a result of fraud relating to the
Program by you or otherwise as a result of your breach of this Agreement,
AOL's obligation to pay Fees and other bonuses under Article 5 shall
survive for so long as is necessary to account for Fees and other bonuses
generated from Qualified New Members properly registered prior to the date
of termination.
11.2 APPLICABLE LAW; JURISDICTION; DISPUTE RESOLUTION. 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. Any disputes occurring under this Agreement will be subject to
the dispute resolution procedures set forth in Section 6 of the Interactive
Marketing Agreement.
11.3 SOLICITATION OF AOL MEMBERS. You will not send unsolicited, commercial
e-mail (i.e., "spam") through or into AOL's products or services, absent a
Prior Business Relationship. For purposes of this Agreement, a "PRIOR
BUSINESS RELATIONSHIP" will mean that the AOL Member to whom commercial
e-mail is being sent has voluntarily either (i) engaged in a transaction
with you other than registering to receive the AOL Service through an AOL
Promo provided on your Website or (ii) provided information to you through
a contest, registration, or other communication, which included clear
notice to the AOL Member that the information provided could result in
commercial e-mail being sent to that AOL Member by you or its agents. Any
commercial e-mail or other online communications to AOL Members that are
otherwise permitted hereunder, shall (a) include a prominent and easy means
to "opt-out" of receiving any future commercial communications from you,
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).
11.4 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.
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11.5 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.
11.6 ASSIGNMENT. You shall not assign this Agreement or any right, interest
or benefit under this Agreement without the prior written consent of AOL.
11.7 INJUNCTIVE RELIEF; REMEDIES. You acknowledge a violation of this
Agreement could cause irreparable harm to AOL for which monetary damages
may be difficult to ascertain or an inadequate remedy. You therefore agree
that AOL will have the right, in addition to its other rights and remedies,
to seek and obtain injunctive relief for any violation of this Agreement.
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.
11.8 ACKNOWLEDGMENT. You acknowledge that you have read this Agreement
and agreed to all the terms and conditions. You understand that AOL
may at any time (directly or indirectly) solicit customer referrals
on terms that may differ from those contained in this Agreement, and
AOL and its affiliates and subsidiaries may operate web sites that
compete with your Website.
11.9 INTERPRETATION. In the event that any of the terms of this AOL
Affiliate Network Agreement conflict, directly or indirectly, with,
or create any ambiguities with respect to any of the terms of the
Interactive Marketing Agreement, the terms of the Interactive
Marketing Agreement shall control. This AOL Affiliate Network
Agreement may be terminated pursuant to Article 9 hereof,
independently of the Interactive Marketing Agreement.
12. OTHER DEFINITIONS.
12.1 "AOL User": as defined in the Interactive Marketing Agreement.
12.2 "AOL Network": as defined in the Interactive Marketing Agreement.
12.3 "AOL Service": as defined in the Interactive Marketing Agreement.
12.4 "AOL Software" means the proprietary software used to connect to and
use the U.S. version of the America Online(R) brand service.
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EXHIBIT D
MP PRODUCTS AND OTHER CONTENT
ENERGY PRODUCTS, Electricity and natural gas for residential customers, and for
small commercial customers who purchase less than $5,000,000 per year in
electricity and natural gas1, whether sold individually or as part of a service
that incorporates other products and services. In addition to standard
electricity and natural gas provided over the existing delivery infrastructure
(pipes and wires), Energy Products are, as of the Effective Date, any of the
following:
a) Electricity, and natural gas that are promoted as being from
environmentally sound or renewable resources;
b) electricity and natural gas that are sold as a part of a financing
package such as a home mortgage or prepaid energy;
c) offers that may involve delivery of electricity or natural gas
over a delivery infrastructure other than the existing delivery
infrastructure (e.g., sales of electricity from microturbines,
fuel cells, solar panels, etc.);
d) equipment that produces electricity or natural gas such as
microturbines, fuel cells, and solar panels; and
e) propane, butane, aerosol, heating oil and kerosene.
MP may periodically add additional products and services in the above
list with prior approval of AOL, which shall not be unreasonably withheld
or delayed.
ENERGY RELATED PRODUCTS. Products and services that are directly related to the
consumption or use of electricity and/or natural gas; specifically as of the
Effective Date, Energy Related Products are any of the following:
a) services that review energy consumption in the home and/or make
advice regarding efficiency improvements (e.g., energy audits);
b) energy efficient improvements designed to reduce the consumption
of electricity or natural gas in the home such as the installation
of insulation, tune ups of heating venting and air conditioning
(HVAC) systems, the installation of energy efficient window
systems or solar heating systems;
c) maintenance contracts for the equipment and appliances in the home
that consume significant amounts of energy (e.g., HVAC systems,
water heaters, refrigerators, washers and dryers, etc.);
d) equipment associated with the delivery of electricity and natural
gas (e.g., a surge protection for the home);
e) equipment related to the measurement and control of energy into
the home or to any appliances within the home (e.g., a real time
electricity meter); and
f) financing arrangements related to the sale of products and
services in a) through e) above.
MP may periodically add additional products and services in the above
list with prior approval of AOL, which shall not be unreasonably withheld
or delayed.
OTHER RELATED PRODUCTS. Products and services (i) that are indirectly related to
the consumption or use of electricity and/or natural gas and (ii) that are a
natural adjunct to Energy Products and Energy Related Products that are offered
by MP; specifically as of the Effective Date, Other Related Products are any of
the following:
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(1) AOL acknowledges that MP's current charter has limits on the size of
small commercial customers to whom MP may sell electricity or natural gas.
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a) the sale of appliances that use relatively large amounts of energy
("Appliances"), e.g., HVAC systems, air conditioners, heaters,
washer, dryers, refrigerators, freezers, water heaters,
dishwashers, ranges, ovens, stoves, microwave ovens, Jacuzzi, pool
heating equipment;
b) information services provided over the platform of a real time two
way wireless meter such as back up home security, provided that
these are limited to those information services not in competition
with information services offered under an AOL brand name
("Information Services"); and
c) a service in which MP communicates to other providers (telecom,
cable, newspapers) that a MP customer is moving and would like to
turn (on/off) service in the household they are moving (to/from)
("Moving Services").
MP may periodically add additional products and services in the above
list with prior approval of AOL, which shall not be unreasonably withheld
or delayed.
BUNDLED PRODUCTS. MP may bundle any of the MP Products with other MP Products
(i.e., the Energy Products, the Energy Related Products and the Other Related
Products) for sale or promotion. If MP wants to bundle any other products or
services with any of the MP Products, it may do so only with the prior approval
of AOL, and that in that context AOL may require additional compensation (e.g.,
revenue share) for such additional products.
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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 five (5) in the energy industry
nationally, as determined by three recognized experts in the energy
industry agreed upon by the parties, based upon ease of use, customer
service and overall user experience.
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 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 Members seeking to reach the Affiliated MP Site
from the AOL Network, and (ii) no single line under material control by
MP 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 architecture and 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 Members attempt
to access such site. At a minimum, MP will ensure that the Affiliated
MP Site's data transfers initiate within fewer than fifteen (15)
seconds 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 use commercially reasonable efforts to 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 technology. AOL, at its own expense, may conduct
focus group testing of the graphical user interface to assess MP's
compliance herewith.
5. TECHNICAL PROBLEMS. MP agrees to use commercially reasonable efforts to
address material technical problems (over which MP exercises control)
affecting use by AOL Members 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. MP will utilize 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.
8. SECURITY. MP will utilize Internet standard encryption technologies
(e.g., Secure Socket Layer - SSL) to provide a secure environment for
conducting transactions and/or transferring private member information
(e.g. credit card numbers, banking/financial information, and member
address information) to and from the Affiliated MP Site. MP will
facilitate one initial and subsequent periodic reviews, up to two times
per year, of the Affiliated MP Site by AOL in order to evaluate the
security
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risks of such site. MP will promptly remedy any security risks or
breaches of security as reasonably identified by AOL's Operation Security
Team.
9. TECHNICAL PERFORMANCE.
i. MP will design the Affiliated MP Site to support the AOL-client
embedded versions of the Microsoft Internet Explorer 3.XX and 4.XX
browsers (Windows and Macintosh) and the Netscape Browser 4.XX and
use commercially reasonable efforts to support all other AOL
browsers listed at: "http://webmaster.info.aol.com."
ii. To the extent MP creates customized pages on the Affiliated MP
Site for AOL Members, MP will develop and employ a methodology to
detect AOL Members (e.g., examine the HTTP User-Agent field in
order to identify the "AOL Member-Agents" listed at:
"http://webmaster. info.aol.com)."
iii. MP will periodically review the technical information made
available by AOL at http://webmaster.info.aol.com.
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 or preventing the caching of information in AOL's proxy
system as outlined in the document provided at the following URL:
http://webmaster.info.aol.com. MP is responsible for the
manipulation of these parameters in web-based objects so as to
allow them to be cached or not as cached, as outlined in
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 (i) test the New Functionality
to confirm its compatibility with AOL Service client software, and
(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.
vi. Prior to a general release of a major new version of AOL Service
client software or adding material new functionality or features
to the AOL Service client software (collectively "New Client
Software") that will materially affect the Affiliated MP Site, AOL
will use commercially reasonable efforts to provide MP with
written notice of the new functionality and features of the New
Client Software and provide MP with access to any recommended
changes and copies of the New Client Software, to the extent that
such recommendations or New Client Software is generally available
to other AOL marketing partners.
vii. Should any New Functionality be released through the Affiliated MP
Site without notification to AOL, AOL will not be responsible for
any adverse member experience until such time that compatibility
tests can be performed and the New Functionality qualified for the
AOL Service.
10. 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 marketing 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 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 any MP Products or any MP Interactive Site
through the AOL Network absent AOL's prior written approval which will
not be unreasonably withheld or delayed. 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" and are not
inconsistent with the terms of this Agreement), for any of the Exclusive
Services or the terms of this Agreement or advertising standards
generally applicable to all of AOL's advertising and commerce partners,
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. 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 Search Terms, or any other
promotions or navigational tools), AOL shall have the right to direct
such AOL User to the Affiliated MP Site, or any other MP Interactive Site
determined by AOL in its reasonable discretion.
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 AOL Look and Feel, including any
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. AOL Look and Feel specifically excludes
MP's ownership rights in any MP trademarks or MP's copyrighted material
within the Affiliated MP Site.
7. MANAGEMENT OF THE AFFILIATED MP SITE. MP will manage, review, delete,
edit, create, update and otherwise manage all Content available on or
through the Affiliated MP Site, in a timely and professional manner and
in accordance with the terms of this Agreement. MP will ensure that the
Affiliated MP Site is current, accurate and well-organized at all times.
MP represents and warrants to AOL that the MP Products and other Licensed
Content : (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 for the AOL Service and
any other AOL property through which the Affiliated MP Site will be
promoted or any other standard, written policy similar to TOS; and (iii)
will not violate any applicable
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law or regulation, including those relating to contests, sweepstakes
or similar promotions. Additionally, MP represents and warrants to AOL
that it owns or has a valid license to all rights to any Licensed
Content used in AOL "slideshow" or other formats embodying elements
such as graphics, animation and sound, without violating the rights of
any other person or entity. MP also represents and warrants to AOL
that a reasonable basis exists for all Product performance or
comparison claims appearing through 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 Products (e.g., statements that MP is an
"official" or "preferred" provider of products or services for AOL),
but MP may state that MP is an exclusive energy provider on any
Exclusive Service. 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.
8. DUTY TO INFORM. MP will promptly inform AOL of any information related to
the Affiliated MP Site of which MP has actual knowledge which is
reasonably likely to lead to a material claim, demand, or liability of or
against AOL and/or its affiliates by any third party.
9. CUSTOMER SERVICE. It is the sole responsibility of MP to provide customer
service to persons or entities purchasing Products through the AOL
Network ("Customers"). MP will bear full responsibility for all customer
service, including without limitation, order processing, billing,
fulfillment, shipment, collection and other customer service associated
with any Products offered, sold or licensed through 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 generally respond to such emails on a
timely basis. MP will ensure that all orders of Products from the
Affiliated MP Site are received, processed, fulfilled and delivered on a
timely and professional basis. MP shall post on the Affiliated MP Site
its money-back policy or other guarantee policy, if any, with regard to
the MP Products and remain in compliance therewith throughout the term of
this Agreement. MP will bear all responsibility for compliance with
federal, state and local laws in the event that Products are out of stock
or are no longer available at the time an order is received. MP will also
comply with the requirements of any federal, state or local consumer
protection or disclosure law. Payment for Products will be collected by
MP directly from customers.
10. PRODUCTION AND DEVELOPMENT WORK. In the event that MP requests AOL's
production or development 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, (iii) production to
modify work performed by a third party provider or (iv) any other type of
production or development 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 or development work, (ii) the proposed fee or fee structure
for the requested production, development or 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 or development work, work
produced by such third party provider must generally conform to AOL's
standards and 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. With respect to any
routine production, maintenance or related services which AOL reasonably
determines are necessary for AOL to perform in order to support the
proper functioning and integration of the Affiliated MP Site ("Routine
Services"), or with respect to any development work requested by MP, MP
will pay the then-standard fees charged by AOL for such Routine Services
if approved in advance by MP.
11. 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
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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.
12. NAVIGATION TOOLS. Any Keyword Search Terms 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 registered or applied for trademark of MP (e.g. "AOL
keyword: XYZ Company Name"). AOL reserves the right to revoke at any
time MP's use of any Keyword Search Terms which do not incorporate
registered trademarks of MP. MP acknowledges that its utilization of a
Keyword Search Term will not create in it, nor will it represent it
has, any right, title or interest in or to such Keyword Search Term,
other than the right, title and interest MP holds in MP's registered
or applied for trademarks independent of the Keyword Search Term.
Without limiting the generality of the foregoing, MP will not: (a)
attempt to register or otherwise obtain trademark or copyright
protection in the Keyword Search Term that includes an AOL registered
trademark; or (b) use the Keyword Search Term 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 for the
Affiliated MP Site on the AOL Service, such bookmarks will be subject
to AOL's control at all times. Upon the termination of this Agreement,
MP's rights to any Keyword Search Terms to be made available on the
AOL Service will terminate.
13. MERCHANT CERTIFICATION PROGRAM. MP will participate, in any generally
applicable "Certified Merchant" program operated by AOL or its
authorized agents or contractors. Such program may require merchant
participants on an ongoing basis to meet certain reasonable, generally
applicable standards relating to provision of electronic commerce
through the AOL Network (including, as a minimum, use of 40-bit SSL
encryption and if requested by AOL, 128-bit encryption) and may also
require the payment of certain reasonable certification fees to the
applicable entity operating the program. Each Certified Merchant in
good standing will be entitled to place on its affiliated Interactive
Site an AOL designed and approved button promoting the merchant's
status as an AOL Certified Merchant.
14. KEYWORD SEARCH TERMS. To the extent this Agreement sets forth any
mechanism by which the Affiliated MP site will be promoted in connection
with specified search terms within any AOL product or service, MP
hereby represents and warrants that MP has all rights necessary for MP
to use these terms. Notwithstanding the foregoing, AOL shall have the
right to suspend the use of any search term if AOL has reason to
believe that the continued use of such term may subject AOL to
material liability or other consequences.
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EXHIBIT G
STANDARD LEGAL TERMS & CONDITIONS
1. PROMOTIONAL MATERIALS. Each Party will submit to the other Party, for its
prior written approval, which will not be unreasonably withheld or
delayed, any marketing, advertising, or other promotional materials,
excluding Press Releases, related to the Affiliated MP Site and/or
referencing the other Party and/or its trade names, trademarks, and
service marks (the "Promotional 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 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 in Promotional Materials, 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 Promotional Materials. Once approved, the Promotional
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 Promotional Materials may be depleted. Notwithstanding the
foregoing, either party may issue press releases and other disclosures in
accordance with Section 5.7 of the Agreement.
2. LICENSE. MP hereby grants AOL a non-exclusive worldwide license to
market, license, distribute, reproduce, display, perform, transmit and
promote the Licensed Content (or any portion thereof) through such areas
or features of the AOL Network as AOL deems appropriate. MP acknowledges
and agrees that the foregoing license permits AOL to distribute portions
of the Licensed Content in synchronization or timed relation with visual
displays prepared by MP or AOL (e.g., as part of an AOL "slideshow"). In
addition, AOL Users will have the right to access and use the Affiliated
MP 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; CompuServe(R), Digital Cities and any other trade names,
trademarks and service marks of AOL and its affiliates which AOL provides
to MP for use in connection with this Agreement. AOL and its affiliates
will be entitled to use the trade names, trademarks, and service marks of
MP which MP provides to AOL 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 Promotional 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 required
government approvals pertaining to use of the other Party's 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
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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.
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 will possess all material
authorizations, approvals, consents, licenses, permits, certificates or
other rights and permissions necessary to sell any Products sold by MP
through the Affiliated MP Site prior to any such sale.
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 hold all Confidential Information of the
other Party in the strictest confidence and will not disclose any such
Confidential Information to any person other than its employees, agents,
representatives, accountants or advisers who have a need to know or
access to such Confidential Information, and then only to the extent
necessary to perform such person's obligations to the Party holding such
Confidential Information; provided that prior to any such disclosure such
Party shall inform such employees, agents, representatives, accountants
and/or advisers of the confidential nature of such information and the
obligations hereunder; and provided further that such the Party shall be
and remain liable for any breaches of this Section 8 by any of its
employees, agents, representatives, accountants and/or advisers. The
foregoing confidential obligations and undertakings shall continue from
the effective date of this Agreement until three years following
expiration or termination of this Agreement. Notwithstanding the
foregoing, either Party may issue a press release or other disclosure
containing Confidential Information without the consent of the other
Party pursuant to Section 4.6.2 of the Agreement, or except to the extent
such disclosure is required by law, rule, regulation or government or
court order. In which later event, the disclosing Party will provide, if
practicable, at least five (5) business days 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.
9.1 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,
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 9.3. EXCEPT AS PROVIDED IN
SECTION
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9.3, (I) LIABILITY ARISING UNDER THIS AGREEMENT WILL BE LIMITED
TO DIRECT 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 $49,000,000; EXCEPT IN THE CASE
OF A WILLFUL BREACH, IN WHICH CASE THE MAXIMUM LIABILITY OF ONE
PARTY TO THE OTHER PARTY SHALL BE THE SUM OF (A) $49,000,000,
(B) THE FAIR MARKET VALUE OF THE EQUITY EARNED BY AOL UNDER
SECTION 4.2 AND HELD BY AOL ON THE DATE SUCH LIABILITY AROSE
(WHERE SUCH FAIR MARKET VALUE IS BASED ON THE TRAILING 30 DAY
AVERAGE OF THE CLOSING PRICE OF SUCH EQUITY IF MP'S SHARES ARE
PUBLICLY TRADED, OR BASED ON AN APPRAISED VALUE OF SUCH SHARES
IF NOT PUBLICLY TRADED AS DETERMINED BY AN INDEPENDENT
APPRAISER MUTUALLY CHOSEN BY AOL AND MP, (C) THE VALUE OF
CONSIDERATION RECEIVED BY AOL FOR ANY EQUITY EARNED BY AOL
UNDER SECTION 4.2 AND SOLD BY AOL PRIOR TO THE DATE SUCH
LIABILITY AROSE, AND (D) THE AMOUNT OF ANY OTHER CONSIDERATION
RECEIVED BY AOL HEREUNDER; PROVIDED THAT EACH PARTY WILL REMAIN
LIABLE FOR THE AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED
TO THE OTHER PARTY PURSUANT TO THE AGREEMENT.
9.2 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 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.
9.3 INDEMNITY. Each 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.
9.4 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 (other than privileged information). 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 control the defense of)
such Action. 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.
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9.5 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 9 will be enforceable independent of and severable from
any other enforceable or unenforceable provision of this
Agreement.
10. SOLICITATION OF AOL USERS. During the term of this Agreement and for a
two (2) year period thereafter, MP will not directly 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")
or other online communications 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 or other online communication 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 or other online
communication being sent to that AOL User by MP or its agents. Any
commercial e-mail or other online 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 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).
11. AOL USER COMMUNICATIONS. To the extent that MP is permitted to
communicate with AOL Users under Section 10 of this Exhibit G, in any
such communications to AOL Users on or off the Affiliated MP Site
(including, without limitation, e-mail solicitations), MP will not
knowingly take actions with intent to cause AOL User to take the
following actions: (i) using an Interactive Site other than the
Affiliated MP Site for the purchase of Products, (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.
12. COLLECTION AND USE OF USER INFORMATION. MP shall ensure that its
collection, use and disclosure of information obtained from AOL Users
under this Agreement ("User Information") complies with (i) all
applicable laws and regulations and (ii) AOL's standard privacy policies,
available on the AOL Service at the keyword term "Privacy" (or, 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 User Information
collected under this Agreement to market another Interactive Service
12. 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.
13. 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.
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14. 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 on the AOL Network (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 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 (fax no.
703-265-1206) and the Deputy General Counsel (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, except as otherwise specified herein, the notice
address will be the address for MP set forth in the first paragraph of
this Agreement, with the other relevant notice information, including the
recipient for notice and, as applicable, such recipient's fax number or
AOL e-mail address, to be as reasonably identified by AOL.
15. LAUNCH DATES. In the event that any terms contained herein relate to or
depend on the commercial launch date of the Affiliated MP Site
contemplated by this Agreement (the "Launch Date"), then it is the
intention of the Parties to record such Launch Date in a written
instrument signed by both Parties promptly following such Launch Date;
provided that, in the absence of such a written instrument, the Launch
Date will be as reasonably determined by AOL based on the information
available to AOL.
16. 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.
17. RETURN OF CONFIDENTIAL 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 specified the other Party.
18. SURVIVAL. Sections 1.2.4, 1.5, 4.3, 4.4, 4.5, 4.6.2, 5.2.2, 5.3, 5.7, and
6 of the body of the Agreement, Sections 8 through 28 of this Exhibit,
and any payment obligations accrued prior to termination or expiration
will survive the completion, expiration, termination or cancellation of
this Agreement.
19. 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. 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.
20. 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 an executive of at least the same standing to the executive who
signed the Agreement.
21. 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.
22. ASSIGNMENT. Neither Party may assign this Agreement or any right,
interest or benefit under this Agreement without the prior written
consent of the other Party, which consent will not be unreasonably
withheld or delayed; provided that either party may assign its interest
in this Agreement to any purchaser or successor (by way of merger or
consolidation) of substantially all of such party's business without the
other party's approval, provided that, in the case of any such assignment
by MP, MP shall be released from any obligations under the Agreement from
and after the effective date of assignment only if such purchaser or
successor has capitalization adequate to
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satisfy MP's obligations hereunder, in AOL's reasonable judgment. 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.
23. 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.
24. 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.
25. 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.
26. 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.
27. 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.
28. 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
MP Competitors
<TABLE>
<CAPTION>
ENTITY NAME MARKETING AFFILIATE
<S> <C>
1 Pacific Gas & Electric PG&E Energy Services
2 Southern California Edison Edison Source
3 Florida Power & Light FPL Energy Services
4 Commonwealth Edison
5 Consolidated Edison Co. - NY
6 Texas Utilities Electric
7 Detroit Edison
8 Virginia Electric & Power
9 Public Service Electric & Gas PSEG Energy
Technologies
10 Georgia Power (Southern
Company)
11 Consumers Energy
12 Niagara Mohawk Power
13 Houston Lighting & Power Reliant Energy
14 PECO Energy Exelon Energy
15 Duke Energy Duke Energy
16 Florida Power
17 Alabama Power Company
18 PP&L Inc. PP&L Plus
19 San Diego Gas & Electric
20 Connecticut Light & Power
21 Baltimore Gas & Electric
22 Northern States Power
23 Public Service Company of
Colorado
24 Union Electric
25 Ohio Edison
26 Jersey Central Power & Light
27 Wisconsin Electric Power
28 Massachusetts Electric
29 Carolina Power & Light
30 Puget Sound Energy
31 NY State Electric & Gas
32 Arizona Public Service Co.
33 Cleveland Electric Illuminating
Co.
34 Portland General Electric
35 PSI Energy Inc.
36 Ohio Power
37 West Penn Power Allegheny Energy
Supply
38 Boston Edison
39 Illinois Power
40 Columbus Southern Power
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EXECUTION COPY
41 Cincinnati Gas & Electric
42 Entergy Louisiana
43 Central Power & Light
44 Pacificorp
45 Oklahoma Gas & Electric
46 Entergy Arkansas Inc.
47 Duquesne Light
48 Pennsylvania Electric
49 MidAmerican Energy
50 Central Maine Power Co.
51 Nevada Power
52 Tampa Electric
53 South Carolina Electric & Gas
54 Dayton Power & Light
55 Atlantic City Electric / Conectiv Conectiv Energy
56 Potomac Electric Power
57 Metropolitan Edison
58 Public Service Company of OK
59 Pacificorp
60 Appalachian Power
61 Duke Energy Duke Energy
62 Indiana Michigan Power
63 Indianapolis Power & Light
64 Northern Indiana Public Service
Co.
65 Kentucky Utilities
66 Public Service Company of NH
67 Appalachian Power
68 Ameren CIPS
69 Wisconsin Power & Light
70 Wisconsin Public Service
71 Entergy Mississippi
72 Louisville Gas & Electric
73 Public Service Company of NM
74 Rochester Gas & Electric
75 Gulf Power
76 Western Resources Inc.
77 Tucson Electric Power Company
78 Nicor Gas Co.
79 Consumers Energy Co.
80 Atlanta Gas Light Co. Georgia Natural Gas
Services
81 Columbia Gas of Ohio, Inc. Columbia Energy
Services
82 Brooklyn Union Gas Co.
83 Michigan Consolidated Gas Co.
84 Western Resources, Inc.
85 MidAmerican Energy Co.
86 Baltimore Gas & Electric Co.
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87 Peoples Natural Gas
88 Niagara Mohawk Power Corp.
89 KeySpan Energy
90 Columbia Gas of Pennsylvania,
Inc.
91 AES Power Direct
92 Equitable Energy Ohio
93 Essential.com
94 FirstEnergy Trading Services,
Inc.
95 Greenmountain.com
96 Shell Energy
97 Utiliticorp Energy Solutions
98 Utility.com
99 TransCanada Pipeline
100 Commonwealth Energy
101 Metromedia Energy
</TABLE>
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EXHIBIT I
Subscription Agreement
(attached hereto)
Exhibit G - (Page 1)
