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EXHIBIT 10.8
Redacted Version
CONFIDENTIAL
INTERACTIVE SERVICES AGREEMENT
This Interactive Services Agreement (this "Agreement"), effective as of
April 4, 2000 (the "Effective Date"), is made and entered into by and between
America Online, Inc. ("AOL"), a Delaware corporation, with its principal offices
at 22000 AOL Way, Dulles, Virginia 20166, and NewsReal, Inc., d/b/a/ YellowBrix,
Inc. ("YellowBrix"), a Delaware corporation, with its principal offices at 66
Canal Center Plaza, Suite 700, Alexandria, Virginia, 22314 (each a "Party" and
collectively the "Parties").
INTRODUCTION
AOL and YellowBrix each desires to enter into an interactive services
agreement whereby YellowBrix will design, develop and manage, and will provide
AOL and the AOL Network access to, the Customized Site and Customized
Programming, and whereby AOL will promote YellowBrix, the Customized Site and
the Customized Programming throughout the AOL Network subject to the terms and
conditions set forth in this Agreement. To the extent this Agreement requires
performance by a subsidiary of AOL, AOL, in its capacity as stockholder of such
subsidiary, shall cause such subsidiary to perform in accordance with this
Agreement. Defined terms used but not otherwise defined in this Agreement shall
be as defined on Exhibit B attached hereto.
TERMS
1. DISTRIBUTION; PROGRAMMING
1.1 PROMOTION AND DISTRIBUTION. Beginning on the date(s) indicated in
Exhibit A-1, AOL shall provide YellowBrix with the promotions set
forth on Exhibit A-1. The promotions described on Exhibit A-1 and
any other promotions provided by AOL to YellowBrix shall be
referred to as the "Promotions." Except to the extent expressly
described herein, the exact form, placement and nature of the
Promotions shall be determined by AOL in its reasonable editorial
discretion. The Promotions shall link to the Customized Site
and/or Customized Programming, as provided on Exhibit A-l or as
determined by AOL in its reasonable editorial discretion.
1.2 PROGRAMMING AND CONTENT. The Customized Site and Customized
Programming shall consist of the Content described on the
programming plan attached as Exhibit A-2 (the "Programming
Plan"). The inclusion of any additional Content (other than
advertisements, links or promotions permitted under Section 5)
within the Customized Site and/or Customized Programming
(including, without limitation, any features, functionality or
technology) not expressly described on Exhibit A shall be subject
to AOL's prior written approval, which approval shall not be
unreasonably withheld.
1.3 LICENSE. Except as provided herein, YellowBrix hereby grants AOL
a worldwide license to use, market, cache, distribute, reproduce
(with respect to headlines only ("Headlines"), as such headlines
are described in the Programming Plan set forth in Exhibit A-2),
display, adapt (without modifying text), communicate, perform,
transmit, and promote the Customized Site, the Customized
Programming and the Licensed Content (or any portion thereof)
through the AOL Network as AOL may determine in its sole
discretion, including without limitation the right to integrate
Content from the Customized Site and/or Customized Programming
by linking to specific areas thereon, provided that the link to
any such Content on the AOL Network shall conform to the
specifications of a YellowBrix Presence, and AOL shall have the
right to use and change the Licensed Content using the YellowBrix
Tools, as described in Section 1.4.2 below. AOL shall give notice
(the "AOL Notice") to YellowBrix in advance of any use,
marketing, caching,
"[*]"=omitted, confidential material, which material has been
seperately filed with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
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distribution, reproduction, display, adaptation, communication,
performance, transmission or promotion (the "Action") of the
Licensed Content (other than the Headlines) that is not in or for
the Customized Site, and YellowBrix shall, within ten (10) calendar
days after receiving the AOL Notice, give AOL a notice in writing
(the "YellowBrix Notice") identifying in good faith any part of
such Action that would violate any YellowBrix agreement with a
third party content provider ("Third Party Agreements"). The
YellowBrix Notice will contain a brief description of the nature of
the violation, and YellowBrix will, upon AOL's request, provide AOL
with a copy of the relevant Third Party Agreement. If AOL does not
receive the YellowBrix Notice within ten (10) calendar days after
receiving the AOL Notice, then AOL may take the Action described in
the AOL Notice. AOL agrees not to take an Action with respect to
the Licensed Content (except for the Headlines) solely to the
extent that such action would violate the Third Party Agreements as
notified by YellowBrix. Without limiting the indemnification
provision set forth in part VI of Exhibit E of this Agreement,
YellowBrix shall be responsible for and will indemnify AOL for any
liabilities resulting from the breach of the Third Party
Agreements, provided that such liabilities are not caused by AOL's
taking any Action prohibited in the YellowBrix Notice.
1.4 MANAGEMENT.
1.4.1 YellowBrix Management Obligations. YellowBrix shall design,
create, edit, manage, review, update (on a daily basis or as
otherwise specified herein), and maintain the Customized Site,
Customized Programming and the Licensed Content in a timely
and professional manner and in accordance with the terms of
this Agreement and shall keep the Licensed Content current and
well-organized at all times. Except as specifically provided
for herein, AOL shall have no obligations of any kind with
respect to the Customized Site or Customized Programming.
YellowBrix shall be responsible for any hosting or
communication costs associated with the Customized Site and
Customized Programming, including, without limitation, the
costs associated with (i) any mutually agreed-upon direct
connections between the AOL Network and the Customized Site or
Customized Programming or (ii) a mirrored version of the
Customized Site.
1.4.2 Content Management Tools. YellowBrix will develop the
Customized Site for integration on Netscape Netcenter,
including, but not limited to, adapting (i) news and other
feeds to the specifications of the personalization technology
underlying the pages on Netscape Netcenter, and (ii) the
personalization controls to function with the cookie
technology or other technology that AOL utilizes or develops
to control the page state for the end user. YellowBrix will,
as soon as practicable after the Effective Date, provide AOL
with tools for managing the Licensed Content, including the
flow of headlines and stories (the "YellowBrix Tools"). The
YellowBrix Tools will allow AOL to, without limitation, [*].
YellowBrix will, from time to time during the Term, provide
AOL with updated YellowBrix Tools, to the extent such
YellowBrix Tools have been released in updated form.
YellowBrix hereby grants AOL a license to use and store the
YellowBrix Tools (or any portion thereof) for the purpose of
managing the Licensed Content as provided for in this
paragraph.
1.4.3 Quality of Content. YellowBrix shall ensure that the Licensed
Content and the functionality of the tools and applications
provided by YellowBrix within or for the Customized Site and
Customized Programming is equal to or better than the
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Content and functionalities licensed to and distributed by
YellowBrix through any other YellowBrix Interactive Site in
all material respects, including without limitation, quality,
breadth, depth, timeliness, functionality, features, prices of
products and services and terms and conditions, unless
otherwise required by this Agreement (e.g., Content that
YellowBrix would be required to include to comply with this
sentence violates another provision of this Agreement).
Without limiting the foregoing, the Parties acknowledge that
the Content included in the Customized Site and Customized
Programming shall be modified from time to time by YellowBrix,
provided that AOL shall approve such modifications (such
approval not to be unreasonably withheld). YellowBrix will
review, delete, edit, create, update and otherwise manage all
Content available on or through the Customized Site in
accordance with the terms of this Agreement or any amendments
hereto.
1.4.4 Registration. AOL Members shall not be subject to a
registration process (or any similar process) in order to
access and use the Customized Programming or the top level of
the Customized Site, but the Customized Site may require
registration or similar processes for the specific features or
functionality expressly described on Exhibit A and other types
of features and functionality generally consistent with those
set forth on Exhibit A. Such registration processes shall be
integrated with Netscape's "Universal Registration" system or
such other registration system identified by AOL, and shall
comply with Netscape's then-current privacy policy, each as
set forth on Exhibit C.
1.4.5 Compliance. In the event YellowBrix fails to comply with any
material term of this Agreement, including without limitation
YellowBrix's obligations under this Section 1.4, its
promotional obligations under Section 2, the customization and
integrity requirements of Section 5, or its obligations to
provide the Content set forth herein and on the Programming
Plan, AOL will have the right (in addition to any other
remedies available to AOL hereunder), upon notice to
YellowBrix, to decrease the promotion it provides to
YellowBrix hereunder and/or to decrease or cease any other
contractual obligation of AOL hereunder until such time as
YellowBrix corrects its non-compliance, in which event AOL
will be relieved of the proportionate amount of any
promotional commitment made to YellowBrix by AOL hereunder
corresponding to such decrease in promotion.
1.5 CARRIAGE FEE AND WARRANTS.
1.5.1 CASH PAYMENT. YellowBrix shall pay AOL $ [*] as follows:
$ [*] on the Effective Date and $ [*] on or before
each of the following dates: [*].
1.5.2 WARRANTS. In connection with the obligations of the parties
hereunder, and subject to the provisions hereof, YellowBrix
shall enter into, concurrently with this Agreement, the Common
Stock Subscription Warrant Agreement (the "Warrant Agreement")
substantially in the form of Exhibit D attached hereto.
1.6 IMPRESSIONS COMMITMENT. As set forth in further detail in Exhibit
A-1, AOL shall provide YellowBrix with at least [*] Impressions
from placement of YellowBrix Presences on the AOL Network (the
"Impressions Commitment"). In the event that the Impressions
Commitment is not met (or will not, in AOL's reasonable judgment,
be met) during the Term, then as YellowBrix's sole remedy, AOL
shall provide the undelivered Impressions by, at AOL's option, (a)
extending the Term for up to six (6) months without additional
carriage fees payable by YellowBrix, or
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(b) providing YellowBrix from time to time with the remaining
Impressions in the form of promotional space within the AOL
Represented Advertising of comparable value to the undelivered
Impressions (as reasonably determined by AOL), or (c) some
combination thereof.
1.7 SITE AND CONTENT PREPARATION. YellowBrix shall achieve Site and
Content Preparation no later than April 28, 2000 for Phase I, and no
later than July 26, 2000 for Phase II (each a "Launch Date", and
each as described in the programming plan attached as Exhibit A-2).
"Site and Content Preparation" shall mean that YellowBrix shall have
completed all necessary production work for the Customized Site, all
Customized Programming and any other related areas or screens
(including programming all Content thereon); customized and
configured the Customized Site, and all Customized Programming in
accordance with this Agreement; and completed all other necessary
work (including, without limitation, undergone all AOL site testing
set forth on Exhibit F) to prepare the Customized Site, all
Customized Programming and any other related areas or screens to
launch on the AOL Network as contemplated hereunder. In the event
YellowBrix has not achieved Site and Content Preparation by the
relevant Launch Date, and provided that AOL has not been the primary
reason for any delays in achieving such Launch Date, then in
addition to any other remedies available, the Impressions Commitment
set forth in Section 1.6 shall be reduced on a pro rata basis based
on the number of days after the relevant Launch Date that YellowBrix
achieves Site and Content Preparation divided by [*]. In the event
YellowBrix has not achieved Site and Content Preparation within
seven days after the relevant Launch Date, and if AOL has not been
the primary reason for the original or further delays in achieving
such Launch Date, then in addition to any other remedies available,
AOL shall have the right to terminate this Agreement immediately
upon giving YellowBrix written notice thereof. If YellowBrix is
delayed in achieving Site and Content Preparation primarily due to a
failure by AOL to perform its obligations under this Agreement and
YellowBrix notifies AOL in writing of such failure and the resulting
delay, then the Launch Dates and the seven day period referenced in
this Section shall each be extended by the amount of time of
YellowBrix's delay solely attributable to such failure by AOL.
2. CROSS-PROMOTION
2.1 COOPERATION. Each Party shall cooperate with and reasonably assist
the other Party in supplying material for marketing and promotional
activities.
2.2 INTERACTIVE SITE.
2.2.1 On the first screen of each YellowBrix Interactive Site,
YellowBrix shall use commercially reasonable efforts to ensure
(to the extent that such action is within its reasonable
control or not prohibited by contractual restrictions) the
inclusion of a prominent actionable graphical promotional
button (at least 90 x 30 pixels or 70 x 70 pixels in size)
appearing above the fold promoting the AOL Service (or other
AOL product or service designated by AOL subject to
YellowBrix's approval, which shall not be unreasonably
withheld) (the "AOL Promo"). AOL will provide the creative
content to be used in the AOL Promo.
2.2.2 On the first screen of each YellowBrix Interactive Site,
YellowBrix will also use its commercially reasonable efforts
to ensure (to the extent that such action is within its
reasonable control or not prohibited by contractual
restrictions) the display of the then-current version of the
"Netscape Now button as provided by Netscape or the equivalent
successor button or the words "Download Netscape Now" (or
successor text reasonably designated by AOL) (the "Netscape
Now
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button/text" and, collectively with the AOL Promo, the "Site
Promos") prominently above the fold. When an end user clicks on the
Netscape Now button/text, the end user's internet client software or
online service will access the applicable HTML page located at a URL
supplied by AOL. On any page on which it is displayed, the Netscape
Now button/text will be displayed in the same format (i.,e., button,
text, or graphic) and equal to or greater in size and prominence
than the button, text or graphic for any other internet client
software, online service, software provider, "push" content delivery
system, or other online service. YellowBrix will use its best
efforts to have promptly remedied any misplacement or malfunctioning
of the Netscape Now button/text on its pages. AOL will fully
cooperate with YellowBrix to remedy any such misplacement or
malfunctioning outside its reasonable control.
2.2.3 AOL hereby grants YellowBrix a non-exclusive,
non-transferable, non-assignable (except in accordance with
this Agreement), non-sublicensable license to use, reproduce
and display the Site Promos in connection with fulfilling the
foregoing obligations. YellowBrix's use of the Site Promos
will be in accordance with AOL's reasonable policies regarding
advertising and trademark usage as established from time to
time by AOL, including the guidelines of the Netscape Now
Program published in Netscape Netcenter. AOL may immediately
suspend YellowBrix's use of the Site Promos if AOL determines
that such use violates quality standards. The use of the Site
Promos in connection with this Agreement will not create any
right to the Site Promos or associated trademarks and all
goodwill associated with the Site Promos and associated
trademarks will inure to the benefit of AOL. YellowBrix agrees
not to register or use any trademark that is similar to the
Site Promos. YellowBrix further agrees that it will not use
the Site Promos in a manner that could mislead end users or
reflect adversely on AOL or its products and services.
2.2.4 YellowBrix shall post (or update, as the case may be) the
creative content supplied by AOL within the spaces for any
Site Promo within five (5) days of its receipt of such content
from AOL. In the event that AOL elects to serve either or both
Site Promos to the YellowBrix Interactive Site from an ad
server controlled by AOL or its agent, YellowBrix shall take
all reasonable operational steps necessary to facilitate such
ad serving arrangement, including, without limitation,
inserting HTML code designated by AOL on the pages of the
YellowBrix Interactive Site on which such Site Promo will
appear.
2.2.5 In addition, YellowBrix will participate in the AOL Affiliate
Network marketing program, pursuant to which YellowBrix shall
receive the standard partner bounties under the AOL Affiliate
Network marketing program in connection with AOL Member
acquisition through the AOL Promo. The terms and conditions of
the AOL Affiliate Network marketing program are as set forth
at http://affiliate.aol.com/affiliate/welcome.html. YellowBrix
will also participate in the Netscape Affiliate browser
distribution program, pursuant to which YellowBrix shall
receive the standard bounties under the Netscape Affiliate
browser distribution program in connection with the sale of
Netscape browser software through the Netscape Promo. The
terms and conditions of the Netscape Affiliate browser
distribution program are as set forth at
http://home.netscape.com/affiliate/welcome.html.
2.2.6 In addition, within each YellowBrix Interactive Site, to the
extent YellowBrix offers or promotes any products or services
similar to the AOL Tools listed in Section 5.2(c)), other than
chat and message boards, YellowBrix shall provide equal or
greater promotions for such AOL-designated products.
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2.3 PREFERRED ACCESS PROVIDER. YellowBrix shall not promote any other
Interactive Service as a preferred means of accessing YellowBrix's
Content, or otherwise promote any other Interactive Service more
prominently than it promotes AOL, unless YellowBrix has entered into
an agreement with an Interactive Service for co-promotion and such
Interactive Service has paid YellowBrix bona fide value for the
relevant promotion.
3. REPORTING; PAYMENT.
3.1 AOL USAGE REPORTING. AOL shall make available to YellowBrix a
monthly report specifying for the prior month aggregate usage and
Impressions with respect to YellowBrix's presence on the AOL
Network, which are similar in substance and form to the reports
provided by AOL to other content partners similar to YellowBrix.
3.2 CUSTOMIZED SITE REPORTING. YellowBrix will supply AOL with monthly
reports which reflect total impressions by AOL Members to the
Customized Site during the prior month, the number of and dollar
value associated with the transactions involving AOL Members and any
registration information obtained from AOL Members at the Customized
Site during the period in question. YellowBrix represents that all
URLs related to the Customized Site are listed on Exhibit A-2 and
YellowBrix shall provide AOL with an update of such list promptly
upon any change thereto. In addition, YellowBrix shall comply with
the reporting requirements for Netscape Netcenter set forth on
Exhibit G.
3.3 PROMOTIONAL COMMITMENTS. YellowBrix shall provide to AOL a
quarterly report documenting its compliance with any promotional
commitments it has undertaken pursuant to this Agreement, which
report shall include the type of promotion, date of the promotion,
duration and circulation of the promotion and any other mutually
agreed upon information.
3.4 PAYMENT SCHEDULE. Except as otherwise specified herein, each Party
agrees to pay the other Party all amounts received and owed to such
other Party as described herein on a quarterly basis within
[*] days of the end of the quarter in which such amounts were
collected by such Party. The first quarter for which payment is to
be made shall (i) begin on the first day of the month following the
month of execution of this Agreement and (ii) include the portion
of the month of execution following the Effective Date (unless this
Agreement was executed on the first day of a month, in which case
the quarter shall be deemed to begin on the first day of such
month).
3.5 METHOD OF PAYMENTS. All payments by YellowBrix hereunder shall be
paid in immediately available, non-refundable U.S. funds wired to
the "America Online" account, Account Number 323070752 at the Chase
Manhattan Bank, 1 Chase Manhattan Plaza, New York, New York 10081
(ABA: 021000021), or such other account of which AOL shall give
YellowBrix written notice. Notwithstanding the foregoing, any
Transaction Revenues to be paid by YellowBrix to AOL may be paid by
wire or by check mailed to the address specified by AOL. All
payments by AOL hereunder shall be paid by check mailed to the
address set forth in the preamble to this Agreement, to the
attention of the Chief Financial Officer. If payments due to be paid
by AOL to YellowBrix are overdue at the end of the Term (or, if any
Extension Term, then the Extension Term), such payments shall be
made by AOL by wire transfer to the "BizWatch" account, Account
Number 5 135718132 at the BB&T Bank, 1421 Prince Street, Alexandria,
Virginia 22314 (ABA: 051 404 260), or such other account of which
YellowBrix shall give AOL written notice.
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4. ADVERTISING AND MERCHANDISING
4.1 ADVERTISING SALES. Subject to Section 4.2, AOL will own all
advertising inventory within the Customized Site and will have the
exclusive right to license and/or sell all Advertisements in the
Customized Site. YellowBrix may not incorporate or link to any
Advertisement or other commercial elements without AOL's prior
written approval.
4.2 SHARING OF ADVERTISING REVENUES. AOL shall own the rights to
Advertising Revenues generated through the Customized Site, as set
forth in Section 4.1. AOL will pay to YellowBrix [*] percent
([*]%) (or such greater percentage as AOL shall determine in its
sole discretion) of Advertising Revenues received by AOL for such
Advertisements in the Customized Site as described herein.
4.3 INTERACTIVE COMMERCE. Any merchandising permitted hereunder through
the Customized Site and/or Customized Programming shall be subject
to (i) the then-current requirements of AOL's merchant certification
program as set forth at AOL Keyword: Merchants under the "Anchor and
Gold Tenants" section, and (ii) approval by AOL of all products,
goods and services to be offered through the Customized Site or the
Customized Programming, which approval will not be unreasonably
withheld. YellowBrix will take all reasonable steps necessary to
conform us promotion and sale of Products through the Customized
Site and Customized Programming to the then-existing technologies
identified by AOL which are optimized for the AOL Service. All
promotion and sale of Products shall conform to any "quick checkout"
tool which AOL may implement to facilitate purchase of Products by
AOL Members through the Customized Site.
4.4 SHARING OF TRANSACTION REVENUES. During the Term, YellowBrix shall
pay AOL [*] percent ([*]%) of Net Transactions Revenues, as such
term is defined in Exhibit B.
5. CUSTOMIZED PROGRAMMING AND CUSTOMIZED SITE
5.1 PRODUCTION; PERFORMANCE. YellowBrix shall optimize all Customized
Programming and the Customized Site for distribution hereunder
according to AOL specifications and guidelines (including, without
limitation, any HTML publishing guidelines) and the Operating
Standards set forth on Exhibit F attached hereto.
5.2 CUSTOMIZATION. YellowBrix shall customize all Customized Programming
and the Customized Site for AOL Members as follows:
(a) YellowBrix shall customize and co-brand the Customized
Site for distribution over the AOL Properties listed in
Exhibit A-1 by displaying on each page of the Customized Site
framing, branding for and links to the applicable AOL
Property, and other navigational and promotional spaces, each
as described for each such AOL Property on the programming
plan set forth on Exhibit A-2 and/or Exhibit H. In addition,
on each page of the Customized Site linked to from a permanent
placement on a main department screen (or a higher level
screen) of Netscape Netcenter, YellowBrix shall display a
C-frame (i.e., side navigation/menu bars, headers and
footers), branding for and links to such Netscape Netcenter,
and other navigational and promotional spaces, each in
accordance with AOL's standards for Netscape Netcenter.
YellowBrix shall make any changes to the customization and/or
co-branding of the Customized Site to conform to the standard
requirements of any AOL Property or otherwise requested by AOL
during the Term; provided that any such change shall not
increase the portion of the Customized Site that is covered by
such framing by more than 10% over the portion covered by the
framing shown on Exhibit
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H for such AOL Property or the standard C-frame for such AOL
Property as of the Effective Date, as applicable. YellowBrix
shall provide continuous navigational ability for AOL Members
to return to an agreed-upon point on the applicable AOL
property (for which AOL shall supply the proper address) from
the Customized Site or Customized Programming (e.g., the point
on the applicable AOL Property from which such site is
linked), which, at AOL's option, may be satisfied through the
use of a hybrid browser format.
(b) YellowBrix shall ensure that AOL Members accessing the
Customized Programming or linking to the Customized Site do
not receive advertisements, promotions or links (i) for any
entity reasonably construed to be in competition with AOL or
the applicable AOL Property, (ii) in a category in which AOL
or the applicable AOL Property has an exclusive or other
preferential relationship, or (iii) otherwise in violation of
the applicable AOL Property's then-standard advertising
policies. In addition, YellowBrix shall ensure that no
promotions, advertisements or links for any Internet browser
(other than Netscape browsers) appear within any Customized
Programming displayed to AOL Members accessing Netscape
Netcenter or within the version of the Customized Site that is
customized and co-branded for Netscape Netcenter.
(c) Within the Customized Site, YellowBrix shall use and/or
feature solely AOL's tools and technology for the following
utilities and functionality: instant messaging, chat,
personalization technology, calendaring, web page community
services, message boards, user groups and lists, and
commerce/content aggregation services, excluding the "product
matching" tools provided by YellowBrix ("AOL Tools"). If any
such AOL Tool is not made available for use on the Customized
Site within a reasonable time upon YellowBrix's request,
YellowBrix shall be permitted to utilize on the Customized
Site similar tools and technology provided by a third party,
provided that such tools and technology are not branded by
such third party and no links or promotions for such third
party appear on the Customized Site and, provided, further
that YellowBrix will convert such tools and technology over to
the corresponding AOL Tool once such AOL Tool is made
available. In addition, except as provided for herein, the
Customized Site shall not (x) provide or promote any email
service or (y) without AOL's prior written consent and unless
otherwise provided for in this Agreement (including the
Programming Plan in Exhibit A-2), use or feature the tools or
technology of any Interactive Service other than AOL. The
Parties will apply commercially reasonable efforts to agree
upon the terms of the integration, use and promotion of the
AOL Tools within sixty (60) days after the date of execution
of this Agreement
(d) YellowBrix shall host all pages of the Customized Site and
Customized Programming under a domain name co-branded with
Netscape Netcenter (i.e., yellowbrix.netscape.com) and traffic
to pages hosted on any such domain name shall be deemed to be
AOL traffic. Upon the expiration or earlier termination of
this Agreement, unless the Parties otherwise agree, YellowBrix
shall (i) discontinue hosting the Customized Site under the
co-branded domain name, and (ii) for a period of [*] years
thereafter, host a jump page under each such co-branded domain
name. The design of such jump page shall be mutually agreed to
by the Parties. In addition, such jump page shall be subject
to all terms and conditions of this Agreement applicable to
Customized Programming, shall be co-branded with each Party's
brands and shall contain prominent navigation to both the
Generally Available Site (or, upon AOL's prior written
approval, which approval shall not be unreasonably withheld,
such other site as YellowBrix may designate and which site is
not reasonably construed to be in competition with AOL) and an
area(s) of the AOL
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Network, or other Content area(s), selected by AOL and related
in subject matter to the Content contained on the Customized
Site.
5.3 INTEGRITY OF AOL NETWORK. The Parties will work together on mutually
acceptable links (including links back to the AOL Network) within
the Customized Site in order to create a robust and engaging AOL
member experience and the Customized Site may include reasonable
editorial links that are contextually related to the Content
described on the Programming Plan subject to the terms of this
Agreement, including Section 5.2 (b) and the following:
(a) YellowBrix shall take reasonable efforts to ensure that AOL
traffic is generally either kept within the Customized Site or
channeled back into the AOL Network. If AOL notifies
YellowBrix in writing that, in AOL's reasonable judgment,
links from the Customized Site cause an excessive amount of
AOL traffic to be diverted outside of the Customized Site and
the AOL Network in a manner that has a detrimental effect on
the traffic flow of the AOL audience, then YellowBrix shall
immediately reduce the number of links out of the Customized
Site. The attribution required in YellowBrix Third Party
Agreements, if any, shall consist only of the name and/or logo
of the content provider, will contain no other marketing or
promotional Content, and will not be considered to cause an
excessive amount of diverted traffic under this clause,
provided that any logo in the attribution will be no larger
than 75 x 30 pixels in size. In the event that YellowBrix
cannot or does not so limit diverted traffic from the
Customized Site, AOL reserves the right to terminate any links
from the AOL Network to the Customized Site.
(b) YellowBrix shall ensure that the Customized Site does not
contain any permanent or semi-permanent links for third party
Content, except as expressly described in the Programming
Plan. In addition, YellowBrix shall ensure that the Customized
Site does not contain any rotational links (including, without
limitation, banner advertisements) for aggregated Content
within the same Content category or AOL Property channel as
YellowBrix's Content, except as expressly described in the
Programming Plan.
(c) Any links within the Customized Site to other Content shall be
directed to Content within the AOL Network or within the
customized sites of other AOL interactive Content providers to
the extent such Content is available within such areas.
(d) Any Advertisements purchased by YellowBrix within the sites of
other AOL interactive Content providers or interactive
marketing partners shall link to the Customized Site.
5.4 LINKS WITHIN CUSTOMIZED PROGRAMMING. The Customized Programming
shall not contain any links or pointers to any other area on or
outside of the AOL Network without AOL's prior written consent,
except as expressly described in the Programming Plan or in Section
5.3(a) above.
5.5 REVIEW. YellowBrix shall allow appropriate AOL personnel to have
reasonable access to all Customized Programming and the Customized
Site from time to time for the purpose of reviewing such sites to
determine compliance with the provisions of this Section 5.
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6. TERM, TERMINATION, PRESS RELEASES.
6.1. TERM. Unless earlier terminated as set forth herein, the initial
term of this Agreement shall commence on the Effective Date and
expire eighteen (18) months after the Effective Date. AOL shall,
upon reaching the Impressions Commitment provided for in Section
1.6 above, have the right to extend this Agreement for an
additional one (1) year period (the "Extension Term"), with such
Extension Term commencing on the later of (a) the expiration of
the initial term of this Agreement, or (b) the date the
Impressions Commitment is reached. The Extension Term shall be on
the same terms and conditions contained herein, provided that,
during any Extension Term, YellowBrix shall make payments in the
amount of $ [*] on or before each of the dates that is [*] months
after the commencement of the Extension Term, and AOL shall
provide YellowBrix with an Impressions Commitment of at least [*].
Notwithstanding the foregoing, during any Extension Term, no
Transaction Revenues will be paid by YellowBrix to AOL pursuant
to Section 4.4. AOL shall exercise its option to extend this
Agreement by providing YellowBrix with written notice of such
election no later than sixty (60) days prior to the expiration
of the initial term, or, if AOL elects to extend this Agreement
by six (6) months pursuant to Section 1.6 above, then sixty (60)
days prior to the expiration of such six (6) month period.
6.2 TERMINATION FOR BREACH. Either Party may terminate this Agreement
at any time in the event of a material breach by the other Party
of this Agreement or the Warrant Agreement, which breach remains
uncured after thirty (30) days written notice thereof; provided,
however, that AOL will not be required to provide notice to
YellowBrix in connection with YellowBrix's failure to make any
payment required under Section 1.5.1 of this Agreement, and the
cure period with respect to any scheduled payment shall be
fifteen (15) days from the date such payment is due. In the event
of the termination of this Agreement pursuant to this Section 6.2
as the result of a material breach by AOL, AOL shall refund to
YellowBrix the pro rata portion of any guaranteed payments paid by
YellowBrix for Impressions (pursuant to Section 1.5.1 above) not
yet delivered as of such date of termination, and no further
guaranteed payments shall be due thereafter.
6.3 TERMINATION FOR BANKRUPTCY/INSOLVENCY OR CHANGES IN BUSINESS.
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.
6.4 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, rule,
regulation or court order or as reasonably advised by legal
counsel 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 to obtain the
prior written approval of the other Party shall be deemed a
material breach of this Agreement. Because it would be difficult
to precisely ascertain the extent of the injury caused to the
non-breaching Party, in the event of such material breach, the
non-breaching Party may elect either to (a) terminate this
Agreement immediately upon notice to the other Party, or (b)
elect, as liquidated damages, to modify the Impressions commitment
hereunder by [*] percent ([*]%) (i.e., either an increase in the
* Confidential Treatment Requested
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Impressions commitment if AOL has violated this provision or a
decrease in the Impressions commitment if YellowBrix has violated
this provision). The Parties agree that the liquidated damages set
forth in the preceding sentence are a reasonable approximation of
the injury that would be suffered by the non-breaching Party.
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7. TERMS AND CONDITIONS. The terms and conditions set forth on the
Exhibits attached hereto are 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. NEWSREAL, INC.
By: /s/ ERIC L. KELLER By: /s/ JEFFREY P. MASSA
---------------------------- ----------------------------
Print Name: Eric L. Keller Print Name: Jeffrey P. Massa
-------------------- --------------------
Title: SVP Title: CTO
------------------------- -------------------------
Date: Date:
-------------------------- --------------------------
Tax ID/EIN#: 541869419
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