CONFIDENTIAL
ANCHOR TENANT AGREEMENT
This Anchor Tenant Agreement (this "AGREEMENT"), effective as of
November 16, 1999 (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 Bolt Media, Inc.
("INTERACTIVE CONTENT PROVIDER", "ICP" or "BOLT"), a Delaware corporation, with
its principal offices at 304 Hudson Street, New York, New York 10013 (each a
"Party" and collectively the "Parties").
INTRODUCTION
AOL and ICP each desires that AOL provide access to the ICP Internet
Site and ICP Programming through the AOL Network, subject to the terms and
conditions set forth in 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 a mutually agreed
upon date(s) after the Effective Date, AOL shall provide ICP
with the promotions set forth on Exhibit A-1 in accordance
with the specifications set forth therein. The promotions
described on Exhibit A-1 and any other promotions provided by
AOL to ICP 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.
1.2 CONTENT. The ICP Internet Site and ICP Programming shall
consist of the Content described on the programming plan
attached as Exhibit A-2 (the "PROGRAMMING PLAN"). ICP shall
inform AOL of relevant search terms and terminology associated
with popular areas and functionality within the ICP Internet
Site and ICP Programming for AOL's promotional and Content
integration purposes. The inclusion of any additional Content
within the ICP Internet Site and/or ICP Programming
(including, without limitation, any features, functionality or
technology) that is not in keeping with the Programming Plan
and the relevant AOL policies set forth or otherwise
referenced herein shall be subject to AOL's prior written
approval.
1.3 LICENSE. ICP hereby grants to AOL for the Term a non-exclusive
worldwide license to use, market, license, store, distribute,
reproduce, display, adapt, communicate, perform, translate,
transmit, and promote the ICP Internet Site, the ICP
Programming and the Licensed Content (or any portion thereof)
through the AOL Network as AOL may determine in its reasonable
discretion in accordance with this Agreement, including
without limitation the right to integrate Content from the ICP
Internet Site and/or ICP 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 an ICP
Presence.
1.4 MANAGEMENT. ICP shall design, create, edit, manage, review,
update (on a daily basis or as otherwise specified herein),
and maintain the ICP Internet Site, ICP 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, accurate and well-organized at all
times. ICP shall ensure that the Licensed Content within the
ICP Internet Site and ICP Programming is equal to or better
than the Content distributed by ICP through any other ICP
Interactive Site in all material respects, including without
limitation, quality, breadth, depth, timeliness,
functionality, features, prices of products and services and
terms and conditions, except to the extent inclusion of
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such Content would otherwise violate this Agreement, provided
that any changes to the ICP Internet Site, ICP Programming or
the Licensed Content that are made to comply with this Section
shall be subject to AOL's review and approval and the terms of
this Agreement. Notwithstanding the foregoing or any term of
this Agreement, such obligations to produce Content that is
"equal to or better" than that of other ICP Interactive Sites
[*] where such variations in the quality of ICP's Content are
caused solely by the limitations of [*] AOL Member bandwidth,
or any other feature of the applicable AOL Property;
provided, however that upon the [*] set forth above, ICP will
be obligated to include within the ICP Internet Site, ICP
Programming and Licensed Content such previously excluded
Content that is "equal to or better" than that of other ICP
Interactive Sites. Except as specifically provided for herein,
AOL shall have no obligations of any kind with respect to the
ICP Internet Site or ICP Programming. ICP shall be responsible
for any hosting or communication costs associated with the ICP
Internet Site and ICP Programming, including, without
limitation, the costs associated with (i) any agreed-upon
direct connections between the AOL Network and the ICP
Internet Site or ICP Programming or (ii) a mirrored version of
the ICP Internet Site. AOL Members shall not be subject to a
registration process (or any similar process) in order to
access the ICP Internet Site, ICP Programming or the Licensed
Content. [*]. In the event ICP fails to comply with any
material term of this Agreement, including without limitation
ICP's obligations under this Section 1.4 and Exhibit A-3, and
ICP's promotional obligations under Section 2, AOL will have
the right (in addition to any other remedies available to AOL
hereunder), provided such failure to comply continues for
more than [*] following notification by AOL, to decrease the
promotion it provides to ICP hereunder and/or to decrease or
cease any other contractual obligation of AOL hereunder until
such time as ICP corrects its non-compliance, in which event
AOL will be relieved of the proportionate amount of any
promotional commitment made to ICP by AOL hereunder
corresponding to such decrease in promotion.
1.5 CARRIAGE FEE. ICP shall pay AOL [*] as follows:
1.5.1 CASH PAYMENT. ICP shall pay AOL [*] as follows:
ICP shall pay AOL [*] on the Effective Date and [*]
on or before each of the dates that are three (3)
months, six (6) months, nine (9) months, twelve (12)
months, fifteen (15) months and eighteen (18) months
respectively, after the Effective Date.
1.5.2 IN-KIND PROGRAMMING. ICP shall provide AOL with
the equivalent of [*] made up of [*] (the "ICP
In-Kind Commitments"). Without limiting any other
rights or remedies available to AOL, AOL's
distribution and Impressions commitments specified
in Sections 1.1 and 1.6 herein are and will be
contingent upon provision by ICP of the ICP In-Kind
Commitments [*].
1.6 IMPRESSIONS TARGET. AOL shall provide ICP with at least [*]
Impressions during the Term from placement of ICP Presences on
the AOL Network (the "IMPRESSIONS TARGET") substantially as
follows: (a) at least [*] Impressions on the AOL Service, (b)
at least [*] Impressions within Shop@AOL and (c) at least [*]
Impressions elsewhere on the AOL Network as set forth in the
carriage plan on Exhibit A. Any shortfall in Impressions from
(a) above may be made up by over-delivery of Impressions in
(c) above. AOL shall use commercially reasonable efforts to
deliver the Impressions in equal amounts throughout the Term,
subject to fluctuations in AOL Network usage.
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In the event that the Impressions Target is not met (or will
not, in AOL's reasonable judgment, be met) during the Term,
then as ICP's sole remedy, upon mutual agreement of the
Parties either (a) the Term shall be extended for up to six
(6) months without additional carriage fees payable by ICP,
(b) AOL shall provide ICP with the remaining Impressions in
the form of advertising space within the AOL Network of
comparable value to the undelivered Impressions (as reasonably
determined by AOL) within contextually relevant areas of the
AOL Network (e.g., the AOL Service music channel), or (c) some
combination thereof.
1.7 MEMBER BENEFITS. ICP will generally promote through the ICP
Internet Site any special or promotional offers made available
by or on behalf of ICP through any ICP Interactive Site. In
addition, ICP shall make reasonable efforts to promote through
the ICP Internet Site special offers exclusively available to
AOL Members ("AOL Exclusive Offers"). ICP shall feature at
least one AOL Exclusive Offer for AOL Members (except as
otherwise mutually agreed upon by the Parties) each month. ICP
shall provide benefits to AOL Members, such as price
discounts, product enhancement, unique service benefits,
promotional offers, member of the day recognition and such
other contests services and discounts as ICP may, in its sole
discretion, decided to deliver from time to time. ICP will
provide AOL with reasonable prior notice of AOL Exclusive
Offers and other special offers and AOL shall make reasonable
efforts to market the availability of such offers.
1.8 SITE AND CONTENT PREPARATION. ICP shall achieve Site and
Content Preparation within [*] days after the Effective Date.
"SITE AND CONTENT PREPARATION" shall mean that ICP shall have
completed all necessary production work (including completion
of all necessary training for AOL's proprietary "Rainman"
publishing tool for the management of the message boards and
chat rooms) for the ICP Internet Site, all ICP Programming and
any other related areas or screens (including programming all
Content thereon); customized and configured the ICP Internet
Site, and all ICP 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 ICP Internet Site, all ICP
Programming and any other related areas or screens to launch
on the AOL Network as contemplated hereunder. In the event ICP
has not achieved Site and Content Preparation for the (a) ICP
Internet Site within [*] days after the Effective Date and (b)
ICP Programming for message boards and chat within [*] days
after the Effective Date (provided that ICP uses reasonable
efforts to achieve Site and Content Preparation for this
section (b) within [*] days after the Effective Date), then in
addition to any other remedies available, the Impressions
Target set forth in Section 1.6 shall be reduced on a pro rata
basis based on the number of days after such [*] and [*] day
periods that ICP achieves Site and Content Preparation divided
by [*]. In the event ICP has not achieved Site and Content
Preparation within [*] days after the Effective Date, then in
addition to any other remedies available, AOL shall have the
right to terminate this Agreement by giving ICP written notice
thereof. If ICP is delayed in achieving Site and Content
Preparation due to any delay by in performing its obligations
or exercising its approval rights under this Agreement, then
the [*] day and [*] day periods referenced in this Section
shall each be extended by the amount of time of ICP's delay
solely attributable to such delay by AOL.
1.9 EXCLUSIVITY. During the Term, ICP shall not enter into any
arrangements (written or otherwise) substantially similar in
nature to this Agreement with any third party Interactive
Service. During the Term and for the twelve (12) month period
after the expiration or other termination of the Term, ICP
shall not become an Internet service provider.
1.10 TEEN POLICIES: The Parties agree that the entire ICP Internet
Site and all ICP Programming is designated as Content targeted
to Young Teens (children ages 13 - 15) and/or Mature Teens (16
- 17). ICP shall ensure that all Content distributed on or
through the ICP Internet Site and all ICP Programming complies
with any relevant AOL policy (e.g., Young Teens, Mature Teens)
including any viewruling obligations.
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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 PRIMARY SITE. ICP shall include a prominent, actionable
promotional button (at least 90 x 30 pixels or 70 x 70 pixels
in size) appearing on the first screen of the Primary Site
(the "AOL PROMO"), to promote the following AOL products or
services: [*] (to the extent the Parties agree to an
arrangement therein) and [*], or other such products and
services as may be mutually agreed upon by the Parties. AOL
shall provide the creative content to be used in the AOL Promo
subject to the approval of ICP, which approval shall not be
unreasonably withheld or delayed. ICP shall post (or update,
as the case may be) the creative content supplied by AOL
within the spaces for the AOL Promo within five days of its
receipt of such content from AOL. Without limiting any other
reporting obligations of the Parties contained herein, ICP
shall provide AOL with monthly written reports specifying the
number of impressions to the pages containing the AOL Promo
during the prior month. In the event that AOL elects to serve
the AOL Promo to the Primary Site from an ad server controlled
by AOL or its agent, ICP 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 Primary Site on which the AOL Promo
will appear. In addition, within each ICP Interactive Site,
ICP shall provide prominent promotion for the keywords
associated with the ICP Internet Site.
2.2.1 AOL COMPONENT PRODUCTS. To the extent ICP offers or
promotes any products or services similar to AOL's
component products and services (including the AOL
Tools listed in Section 5.2(c)) ([*] (a) specific
products and services which ICP has written
agreements to promote on the Primary Site as of the
Effective Date and (b) ICP-only branded products and
services), ICP shall provide equal or greater
promotions for such AOL-designated products.
Notwithstanding the generality of the foregoing, ICP
will promote a co-branded version of AOL Instant
Messenger ("AIM") as ICP's exclusive instant
messaging service on the Primary Site and, during
registration and within member profiles on the
Primary Site, ICP shall include a default option for
users to provide their AOL screen names and/or AIM
screen names. In the event that AOL develops or
acquires any additional component products or
services during the Term or any extension thereof,
ICP shall [*] to provide the promotion set forth in
this Section 2.2.1 for such newly developed or
acquired AOL products or services.
2.3 OTHER MEDIA. [*] ICP's written contractual arrangements with
third parties as of the Effective Date prohibiting ICP from
fulfilling its obligations under this Section 2.3, in [*] of
ICP's television, radio, print and "out of home" (e.g., buses
and billboards, point of purchase and other "place-based"
promotions) advertisements and in any publications, programs,
features or other forms of media over which ICP exercises at
least partial editorial control, ICP will include specific
references or mentions (orally where possible) of the
availability of the ICP Internet Site through the AOL
Network. Such references or mentions shall be at least as
prominent as any references that ICP makes to any ICP
Interactive Site (by way of site name, related company name,
URL or otherwise). Without limiting the generality of the
foregoing, ICP's listing of the "URL" for any ICP Interactive
Site will be accompanied by an equally prominent listing of
the "keyword" term on AOL for the ICP Internet Site, which
listing shall conform to the keyword guidelines attached
hereto as Exhibit F. All such references or mentions of AOL,
and the use of AOL's trademarks, trade names and service
marks in connection therewith, shall be in accordance with
Section II of Exhibit C.
2.4 PREFERRED ACCESS PROVIDER. When promoting AOL, ICP shall
promote AOL as the preferred access provider through which a
user can access the ICP Internet Site (and ICP shall not
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implement or authorize any other promotions on behalf of any
third parties which are inconsistent with the foregoing).
3. REPORTING; PAYMENT.
3.1 AOL USAGE REPORTING. AOL shall make available to ICP a monthly
report specifying for the prior month (changing to weekly if
such reports become generally available during the Term)
aggregate usage and Impressions with respect to ICP's presence
on the AOL Network, which are similar in substance and form to
the reports provided by AOL to similarly situated AOL content
partners.
3.2 ICP INTERNET SITE REPORTING. ICP will supply AOL with monthly
reports that reflect total impressions by AOL Members to the
ICP Internet Site during the prior month, the aggregate number
of and aggregate dollar value associated with all transactions
involving AOL Members and any registration information
obtained from AOL Members at the ICP Internet Site during the
period in question. ICP represents that all URLs related to
the ICP Internet Site are listed on Exhibit A-2 and ICP shall
provide AOL with an update of such list promptly upon any
change thereto.
3.3 PROMOTIONAL COMMITMENTS. ICP shall provide to AOL a monthly
report documenting its compliance with any promotional
commitments it has undertaken pursuant to this Agreement
substantially in the form attached as Exhibit D hereto, and
ICP shall provide AOL with impressions data with respect to
the promotions on the Primary Site specified in Section 2.
3.4 ADVERTISING. ICP shall provide monthly aggregate information
to AOL regarding (i) AOL Advertisements (as defined below)
sold by ICP or its agents and (ii) all advertising or
promotional activity on the ICP Internet Site. ICP shall
indicate the name and products of such advertisers.
3.5 WIRED PAYMENTS. All payments by ICP hereunder shall be paid in
full in U.S. funds wired to the "America Online" account,
[*] at the Chase Manhattan Bank, 1 Chase Manhattan Plaza, New
York, New York 10081 [*], or such other account of which AOL
shall give ICP written notice.
4. ADVERTISING AND MERCHANDISING
4.1 AOL NETWORK ADVERTISING INVENTORY. AOL owns all right, title
and interest in and to the advertising and promotional spaces
within the AOL Network including, without limitation, the AOL
Frames and shall have the right to all revenues generated
therefrom. The specific advertising inventory within any such
AOL forms or pages shall be as reasonably determined by AOL.
ICP owns all right, title and interest in and to the
advertising and promotional spaces within the Primary Site,
the ICP Internet Site and any other linked ICP Interactive
Site and shall have the right to all revenues generated
therefrom.
4.2 ICP SALE OF ADVERTISEMENTS. ICP shall have the [*] right
[*] to license or sell Advertisements in or through the ICP
Internet Site ("AOL ADVERTISEMENTS"), subject to such
AOL-standard restrictions as AOL may disclose in writing to
ICP and shall have the right to all revenues therefrom.
4.3 INTERACTIVE COMMERCE. Any merchandising permitted hereunder by
ICP shall be subject to the terms and conditions of the
Shopping Channel Promotional Agreement attached hereto as
Exhibit G and shall only be conducted through the Merchant
Site (as defined in Exhibit G).
5. CUSTOMIZED ICP PROGRAMMING AND ICP INTERNET SITE
5.1 PRODUCTION; PERFORMANCE. ICP shall optimize all ICP
Programming and the ICP Internet Site for distribution
hereunder according to AOL specifications and guidelines
(including, without
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limitation, any HTML publishing guidelines) and the Operating
Standards set forth on Exhibit E attached hereto.
5.2 CUSTOMIZATION. ICP shall customize all ICP Programming and the
ICP Internet Site for AOL Members as follows:
(a) The ICP Internet Site shall be a [ * ] ICP shall
customize and co-brand the ICP Internet Site and ICP
Programming for distribution over the AOL Properties
listed in Exhibit A-1 using AOL's design guideline
templates and co-branding requirements, including by (x)
[ * ] and (y) [ * ] In addition, ICP shall comply with any
customization and co-branding requirements set forth on
Exhibit A. ICP shall make reasonable changes to the
customization and/or co-branding of the ICP Internet Site
and ICP Programming to conform to the standard
requirements of any AOL Property or otherwise reasonably
requested by AOL during the Term.
(b) ICP shall ensure that AOL Members accessing the ICP
Programming or linking to the ICP Internet 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 each case solely to the extent
that ICP has been [*] conflicts and policies in writing
by AOL. ICP shall ensure that all Advertisements sold by
ICP or its agents comply with all applicable federal,
state and local laws and regulations.
(c) Within the ICP Internet Site and ICP Programming, ICP
shall use (and AOL shall provide and grant to ICP, free of
charge, all rights necessary to use) AOL's tools and
technology ("AOL TOOLS") for all community and
communications utilities and functionality (including,
without limitation, chat, message boards, web page
community services such as AOL Hometown, IP telephony,
email, address book, web-based greeting cards and instant
messaging); any registration or similar processes
permitted hereunder; navigation services (e.g., search and
directory products, classified listings, white pages and
yellow pages); personalization services (e.g., Suitcase,
hosting, data exchange, personalized news service,
personal finance services and calendaring);
commerce/content aggregation services (e.g., Shop@AOL and
local content); audio and video streaming technology and
content; and such other tools as may be necessary to
provide a level of service and functionality comparable to
the Primary Site or as may be mutually agreed upon by the
Parties.
(d) ICP may host all pages of the ICP Internet Site under
the following co-branded domain name: aol.bolt.com.
5.3 LINKS ON ICP INTERNET SITE. The Parties will work together on
mutually acceptable links (including links back to AOL) within
the ICP Internet Site and ICP Programming in order to create a
robust and engaging AOL member experience and the ICP Internet
Site and ICP Programming that are customized for the AOL
Service shall not contain any pointers or links to any other
area on or outside the AOL Network without AOL's prior written
consent, other than standard advertising that otherwise
complies with this Agreement.
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5.4 REVIEW. ICP shall allow appropriate AOL personnel to have
reasonable access to all ICP Programming and the ICP Internet
Site from time to time for the purpose of reviewing such sites
to determine compliance with the provisions of this Section 5.
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 twenty six (26) months from the Effective
Date. AOL shall have the right to extend this Agreement for
one additional six-month period (the "EXTENSION TERM") solely
with respect to the ICP Programming set forth in Exhibit
A-2(c) and A-2(d). During the Extension Term, AOL shall pay
ICP [ * ]% of Advertising Revenues (as defined in Exhibit B)
and AOL may terminate the Agreement at any time upon [*] days
prior written notice to ICP. During the Extension Term, (i)
all references in the Agreement to the ICP Internet Site shall
be deleted, (ii) ICP shall continue to receive "Powered by
Bolt" promotion on all Bolt-monitored message boards and chats
and (iii) the following Sections of the Agreement shall
survive: 1.2, 1.3, 1.10, 4.1, 5.2(b), 5.2(c), 6.1, 7, the
third bullet under Exhibit A-1I, A-2 "Overview", A-2(c),
A-2(d), A-3, Exhibit B and Exhibit C.
AOL shall exercise its renewal option under this Section 6.1
by providing ICP with written notice of such election no later
than thirty (30) days prior to the expiration of the initial
term. Upon the expiration or earlier termination of this
Agreement, AOL may, at its discretion, continue to promote one
or more "pointers" or links from the AOL Network to an ICP
Interactive Site and continue to use ICP's trade names, trade
marks and service marks in connection therewith (collectively,
a "Continued Link"). The provisions of this Section 6.1
related to a Continued Link shall survive the completion,
expiration, termination or cancellation of this Agreement.
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 which remains uncured after thirty (30) days
written notice thereof; provided, however, that AOL will not
be required to provide notice to ICP in connection with ICP's
failure to make any payment required under Section 1.5, and
the cure period with respect to any scheduled payment shall be
fifteen (15) days from the date such payment is due.
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 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 fifteen percent (15%)
(i.e., either an increase in the Impressions commitment if AOL
has violated this provision or a decrease in the Impressions
commitment if ICP 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. BOLT MEDIA, INC.
By: /s/ Jonathan R. Edsor By: /s/ Daniel Pelson
---------------------------- -----------------------------
Print Name: Jonathan R. Edsor Print Name: Daniel Pelson
Title: Executive Director, Business Affairs Title: CEO
Date: 11/30/99 Date: 12/1/99
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EXHIBIT A
EXHIBIT A-1: CARRIAGE PLAN
I. AOL SERVICE
- Permanent branded placements on the AOL Teens channel and
Teens Real Life department main screens.
- "Powered by Bolt" artwork in the Teens "Chat & Boards" area
- "Powered by Bolt" promotion on all Bolt-monitored message
board and chat areas
- Featured content placement throughout Teen channel and other
mutually agreed channels / departments based on AOL editorial
decision
II. SHOP@AOL (AOL SERVICE, NETSCAPE, AOL.COM AND COMPUSERVE)
PLACEMENT WITHIN SHOPPING CHANNEL
LEVEL OF PROMOTION
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Apparel / Boys - Teens
Anchor
Apparel / Girls - Teens
Gold
Sports & Outdoors / Shoes & Apparel
Silver
Audio Systems
Silver
III. MEDIA PLAN
Online media schedule targeted to 18-24 year old AOL members in
entertainment, music and mail sections of ICQ, Netcenter and
Spinner/Winamp.
EXHIBIT A-2: PROGRAMMING PLAN
OVERVIEW
Bolt will manage and monitor AOL Teens Channel message board areas and provide
content written exclusively by teens. Bolt will create a "clean" version of the
Primary Site that adheres to AOL teen content policies, and incorporate AOL user
submissions into content development process. Bolt will feature "best" content
as determined by Bolt's editorial decisions. Bolt will enable AOL to provide a
stronger sense of community programming "by teens for teens." Bolt will also
provide the back-end monitoring for expanded Teens Channel chat areas.
PROGRAMMING REQUIREMENTS
(a) Bolt will create a customized version of the Primary Site (per the
co-branding, teen policies, etc. referenced in the Agreement) in HTML
located at aol.bolt.com.
(b) Bolt will provide the following specific content (updated on a regular
basis)
- A minimum of [ * ] pieces of community-driven content per week
such as teen reviews (CDs, concerts, movies, video games,
etc.), and member-written articles on teen lifestyle (style
trends, dating, sports, money, teen-interest news features,
school life, etc.)
- A minimum of [ * ] original feature per month (such as the
Bolt Virtual Corsage).
(c) Bolt will monitor approximately [ * ] AOL Teens Channel message boards,
each for a minimum of twelve (12) hours per day
- Bolt will remove posts that violate TOS, reveal personal
information, or are generally off-topic within twenty four
(24) hours (see Exhibit A-3)
- AOL will provide Bolt with guidelines for use in determining
(i) what content should be removed; and (ii) a monitor's
options / processes / tools for removing content and/or
silencing
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members. (see Exhibit A-3)
- Basic requirements of Bolt's staff are outlined in Exhibit
A-3.
(d) Bolt will monitor / host a minimum of [*] chat rooms for the AOL Teens
Channel according to the following schedule:
- On Saturdays and Sundays, chat rooms must be staffed from 9AM
to 1AM EST
- On Weekdays from September to May, chat rooms must be staffed
from 3PM to 1AM EST.
- On Weekdays from June to August, chat rooms must be staffed
from 9AM to 1AM EST
(e) In general, the ICP Internet Site will live as a separate community
from that found on the Primary Site, but will feature the same content
features that are produced for the Primary Site and, within ninety (90)
days after the Effective Date, will feature a percentage of AOL
Member-generated content based on the number of submissions by AOL
Members as follows:
- If AOL Members make [*] submissions per day, then [*]% of the
content on the ICP Internet Site will be AOL Member-generated
content.
- If AOL Members make [*] submissions per day, then [*]% of the
content on the ICP Internet Site will be AOL Member-generated
content.
- If AOL Members make [*] submissions per day, then [*]% of the
content on the ICP Internet Site will be AOL Member-generated
content.
- If AOL Members make [*] submissions per day, then [*]% of the
content on the ICP Internet Site will be AOL Member-generated
content.
(f) Registration
- User registration is a required part of Bolt's content
development process. AOL will permit Bolt to solicit content
from AOL Members and will grant a license for Bolt to use and
post that content on the Bolt.com and ICP Internet sites.
- AOL members will be identified on the aol.bolt.com site solely
by their:
- AOL Screen name
- Gender
- Birthday
- Zip Code
- Email Address
- IM Address
- AOL will integrate user profiles with Bolt.com to ensure AOL
Members do not have to re-register to participate in the
content development process at the users discretion.
EXHIBIT A-3: MESSAGE BOARD AND CHAT ROOM MANAGEMENT REQUIREMENTS:
MANAGEMENT TERMS AND REQUIREMENTS: Any Content submitted by ICP or its agents
within message boards or any comparable vehicles will be subject to the license
grant relating to submissions to "public areas" set forth in the AOL Terms of
Service. ICP acknowledges that it has no rights or interest in AOL Member
submissions to message boards within the AOL Network and that AOL owns all
right, title and interest in and to the message boards and Content therein
during and after the Term. AOL will grant Bolt the license to solicit content
from AOL members which will be posted on the ICP Internet Site and the Primary
Site.
All content posted on pages within the ICP Internet sites will be the property
of Bolt.com, and Bolt will give AOL a perpetual license to this content. ICP
shall manage the message boards in accordance with a mutually agreed upon
programming plan, AOL's Terms of Service and AOL's then current policies
relating to message boards and member communications. In managing the message
boards, ICP agrees to refrain from editing or altering any opinion expressed by
an AOL Member, except in cases when ICP (i) has a good faith belief that the
Content in question violates an applicable law, regulation, third party right or
portion of AOL's Terms of Service or (ii) obtains AOL's prior approval.
ICP shall retain adequate personnel to manage the message boards for at least
twelve (12) hours per day (preferably afternoons and evenings) who (A) are at
least 18 years of age, (B) are paid employees of ICP, (C) have passed a
background check through an authorized organization (AOL may provided a
recommendation if necessary) and (D)
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have been adequately trained in, among other things, how to comply with AOL's
monitoring and hosting standards for areas targeted toward young teens at no
cost to ICP, and, at AOL's option, shall have undergone training acceptable to
AOL at no cost to ICP (except for ICP's travel and lodging costs associated with
such training). If at any time AOL notifies ICP that AOL is not satisfied that
ICP is upholding AOL's standards or commercially reasonable policies and
standards as determined by AOL in managing the message boards or managing the
message boards and chat rooms in accordance with the Programming Plan, and ICP
does not rectify the problems within thirty (30) days after receiving such
notice, AOL may terminate ICP's management of the message boards and chat rooms
and any Promotions associated therewith.
CHAT ROOMS: On average, Bolt will provide one host per two (2) chat rooms.
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EXHIBIT B -- DEFINITIONS
DEFINITIONS. The following definitions shall apply to this Agreement:
ADVERTISEMENTS. Promotions, advertisements, links, pointers and similar services
or rights.
ADVERTISING REVENUES. Aggregate amounts collected by AOL or AOL's agents, as the
case may be, arising from the license or sale of Advertisements during the
Alternative Extension Term through the message boards and chat areas set forth
on the "carriage plan" in Exhibit A, less applicable Advertising Sales
Commissions.
ADVERTISING SALES COMMISSION. Actual amounts paid as commission to third party
agencies in connection with sale of an Advertisement during the Alternative
Extension Term through the message boards and chat areas set forth on the
"carriage plan" in Exhibit A, or [ * ]% in the event that AOL sells the
Advertisement directly and will not be deducting third party agency fees.
AFFILIATE. Any agent, distributor or franchisee of AOL, or an entity that,
directly or indirectly, controls, is controlled by, or is under common control
with AOL, including any entity in which AOL holds, directly or indirectly, at
least a nineteen percent (19%) equity interest.
AOL INSTANT MESSENGER. The AOL-branded service, currently available through the
Internet, that enables end-users of such service to exchange, in real-time,
private, personalized messages with, and to monitor the online status of, other
end-users of such service and AOL Members.
AOL SERVICE. The standard narrow-band U.S. version of the America Online(R)
brand service, specifically excluding (a) AOL.com(SM) and any other AOL
Interactive Site, (b) the international versions of an America Online service
(e.g., AOL Japan), (c) the CompuServe(R) brand service and any other CompuServe
products or services, (d) Netscape Netcenter(TM) and any other Netscape(R)
products or services, (e) "ICQ(SM)," "AOL NetFiND(SM)," "AOL Instant
Messenger(SM)," "Digital City(SM)," "AOL NetMail(SM)," "Real Fans(SM)",
"Love@AOL(SM)", "Entertainment Asylum(SM)," "AOL Hometown(SM)" 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, (f) any
programming or content area offered by or through the U.S. version of the
America Online(R) brand service over which AOL does not exercise complete
operational control (including, without limitation, Content areas controlled by
other parties and member-created Content areas), (g) any yellow pages, white
pages, classifieds or other search, directory or review services or Content
offered by or through the U.S. version of the America Online(R) brand service,
(h) any property, feature, product or service which AOL or its affiliates may
acquire subsequent to the Effective Date and (i) any other version of an America
Online service which is materially different from the standard narrow-band U.S.
version of the America Online brand service, by virtue of its branding,
distribution, functionality, Content or services, including, without limitation,
any co-branded version of the service and any version distributed through any
broadband distribution platform or through any platform or device other than a
desktop personal computer.
AOL PROPERTY. Any product, service or property owned, operated, marketed,
distributed, or authorized to be distributed by or through AOL or its
Affiliates, including, without limitation, the AOL Service, Netscape and
AOL.com.
AOL LOOK AND FEEL. The elements of graphics, design, organization, presentation,
layout, user interface, navigation, trade dress and stylistic convention
(including the digital implementations thereof) within the AOL Network and the
total appearance and impression substantially formed by the combination,
coordination and interaction of these elements.
AOL MEMBER(S). Any user of the AOL Network, including authorized users
(including any sub-accounts under an authorized master account) of the AOL
Service and/or the CompuServe Service.
AOL NETWORK. (i) The AOL Service, Netscape, AOL.com, the CompuServe Service and
(ii) any other product, service or property owned, operated, distributed or
authorized to be distributed by or through AOL or its Affiliates worldwide (and
including those products, services and properties that are excluded from the
definitions of the AOL Service, AOL.com or any other AOL Property). It is
understood and agreed that the rights of ICP relate solely to particular AOL
Properties as expressly set forth in this Agreement and not generally to the AOL
Network.
BOLT LOOK AND FEEL. The elements of graphics, design, organization,
presentation, layout, user interface, navigation, trade dress and stylistic
convention (including the digital implementations thereof) within the ICP
Interactive Site and the Primary Site.
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 1934,
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.
COMPUSERVE SERVICE. The standard HTML version of the narrow-band U.S. version of
the CompuServe brand service, specifically excluding (a) any international
versions of such service (e.g., NiftyServe), (b) any web-based service including
"compuserve.com", "cserve.com" and "cs.com", or any similar product or service
offered by or through the U.S. version of the CompuServe brand service, (c)
Content areas owned, maintained or controlled by CompuServe affiliates or any
similar "sub-service," (d) any programming or Content area offered by or through
the U.S. version of the CompuServe brand service over which CompuServe does not
exercise complete or substantially complete operational control (e.g.,
third-party Content areas), (e) any yellow pages, white pages, classifieds or
other search, directory or review services or Content (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 or functionality materially
different from the Content, distribution, services 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, (h) any property,
feature, product or service which CompuServe or its affiliates may acquire
subsequent to the Effective Date, (i) the America Online brand service and any
independent product or service which may be offered by, through or with the U.S.
version of the America Online brand service and (j) the HMI versions of the
CompuServe brand service.
CONFIDENTIAL INFORMATION. Any information relating to or disclosed in the course
of this Agreement, which is, or should be reasonably understood to be,
confidential or proprietary to the disclosing Party, including, but not limited
to, the material terms of this Agreement, information about AOL Members,
technical processes and formulas, source codes, product designs, sales, cost and
other unpublished financial information, product and business plans, projections
and marketing data. "Confidential Information" shall not include information (a)
already lawfully known to or independently developed by the receiving Party, (b)
disclosed in published materials, (c) generally known to the public, or (d)
lawfully obtained from any third party.
CONTENT. Text, images, video, audio (including, without limitation, music used
in time relation with text, images, or video), and other data, products,
services, advertisements, promotions, URLs, keywords and other navigational
elements, links, pointers, technology and software. For the avoidance of doubt
this definition shall not apply with respect to any Content of the ICP Internet
Site that is not Licensed Content and is distributed in the same form or a
substantially similar form on the Primary Site or any other ICP Interactive Site
and the limitations and policies applicable to Content hereunder shall not
govern use or exploitation thereof other than in connection with the ICP
Internet Site.
KEYWORD(TM) SEARCH TERMS. (a) The Keyword online search terms made available on
the AOL Service, combining AOL's Keyword online search modifier with a term or
phrase specifically related to ICP (and determined in accordance with the terms
of this Agreement) and (b) the Go Word online search terms made available on the
CompuServe Service, combining CompuServe's Go Word online search modifier with a
term or phrase specifically related to ICP (and determined in accordance with
the terms of this Agreement).
ICP COMPETITORS. [ * ]
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[ * ]
ICP INTERACTIVE SITE. Any interactive site or area (other than ICP Programming),
including any mirrored site or area, which is managed, maintained or owned by
ICP or its agents or to which ICP provides and/or licenses information, content
or other materials, including, by way of example and without limitation, (i) an
ICP 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 proposed Active Desktop or interactive
television service such as WebTV.
ICP INTERNET SITE. The version(s) of the Primary Site that is customized for
distribution through the AOL Network in accordance with this Agreement.
ICP PRESENCE. Any (a) ICP trademark or logo, (b) headline or picture from ICP
Content, (c) teaser, icon, or link to the ICP Internet Site or ICP Programming
and/or (d) other Content which originates from, describes or promotes ICP or
ICP's Content.
ICP PROGRAMMING. Any (a) area within the AOL Network or outside the AOL Network
but exclusively available to AOL Members, which area is developed, programmed,
and/or managed by ICP, in whole or in part, pursuant to this Agreement and all
Content thereon (including, without limitation, message boards, chat and other
AOL Member-supplied content areas contained therein) including, without
limitation, any co-branded site or page, but excluding the ICP Internet Site and
(b) Content provided to AOL by ICP pursuant to this Agreement for distribution
on or through the AOL Network other than on the ICP Internet Site.
IMPRESSION. User exposure to an ICP Presence, as such exposure may be reasonably
determined and measured by AOL in accordance with its standard methodologies and
protocols.
INTERACTIVE SERVICE. An entity offering one or more of the following: (i) online
or Internet connectivity services (e.g., an Internet service provider); (ii) an
interactive site or service featuring a broad selection of aggregated third
party interactive content (or navigation thereto) (e.g., an online service or
search and directory service) and/or marketing a broad selection of products
and/or services across multiple interactive commerce categories; (iii) a
persistent desktop client; or (iv) communications software capable of serving as
the principal means through which a user creates, sends or receives electronic
mail or real time or "instant" online messages (whether by telephone, computer
or other means).
LICENSED CONTENT. All Content offered through the ICP Internet Site pursuant to
this Agreement or otherwise provided by or on behalf of ICP or its agents in
connection herewith (e.g., offline promotional content or online Content for
distribution through the AOL Network), including without limitation all ICP
Programming.
NETSCAPE NETCENTER. Netscape Communications Corporation's primary Internet-based
Interactive Site marketed under the "Netscape Netcenter(SM)" brand, specifically
excluding (a) the AOL Service and the CompuServe Service, (b) AOL.com and
CompuServe.com, (c) any international versions of such site, (d) "ICQ," "AOL
Netfind," "AOL Instant Messenger," "AOL NetMail," "AOL Hometown," "My News,"
"Digital City," or any similar independent product or service offered by or
through such site or any other AOL Interactive Site, (e) any programming or
Content area offered by or through such site over which AOL does not exercise
complete operational control (including, without limitation, Content areas
controlled by other parties and member-created Content areas), (f) any
programming or Content area offered by or through the U.S. version of the
America Online brand service which was operated, maintained or controlled by the
former AOL Studios division (e.g., Electra), (g) any yellow pages, white pages,
classifieds or other search, directory or review services or Content offered by
or through such site or any other AOL Interactive Site, (h) any property,
feature, product or service which AOL or its affiliates may acquire subsequent
to the Effective Date and (i) any other version of an AOL or Netscape
Communications Corporation Interactive Site which is materially different from
Netscape Communications Corporation's primary Internet-based Interactive Site
marketed under the "Netscape Netcenter(TM)" brand, by virtue of its branding,
distribution, functionality, Content or services, including, without limitation,
any co-branded versions and any version distributed through any broadband
distribution platform or through any platform or device other than a desktop
personal computer (e.g. Custom NetCenters built specifically for third parties).
PAGE VIEW. The unit of measurement that represent the number of requests for a
page of content. A page of content is, but is not limited to, a static page such
as an HTML document or a dynamically generated page such as from a CGI script.
Pages containing framesets shall not be counted as Page Views and only the pages
within the frameset containing principle content shall be counted as Page Views.
PRIMARY SITE. The Internet site and Content, currently located at URL:http://
www.bolt.com and all related URLs, which are managed, maintained or owned by ICP
or its agents or to which ICP licenses information, content or other materials.
PRODUCT. Any product, good or service which ICP (or others acting on its behalf
or as distributors) offers, sells, provides, distributes or licenses to AOL
Members directly or indirectly through (i) the ICP Internet Site (including
through any Interactive Site linked thereto) or ICP Programming, (ii) any other
electronic means directed at AOL Members (e.g., e-mail offers), or (iii) an
"offline" means (e.g., toll-free number) for receiving orders related to
specific offers within the ICP Internet Site or ICP Programming requiring
purchasers to reference a specific promotional identifier or tracking code,
including, without limitation, products sold through surcharged downloads (to
the extent expressly permitted hereunder).
TERM. The period beginning on the Effective Date and ending upon the expiration
or earlier termination of this Agreement.
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EXHIBIT C -- STANDARD LEGAL TERMS AND CONDITIONS
I. AOL NETWORK
CONTENT. ICP represents and warrants that all Content contained within the ICP
Internet Site and ICP Programming and all Licensed Content (i) does and will
conform to AOL's applicable Terms of Service, the terms of this Agreement and
any other standard, written policy of AOL and any applicable AOL Property
(including without limitation AOL's kids policies to the extent applicable),
provided that ICP has been provided with written notice of all such standards
and policies, (ii) does not and will not infringe on or violate any copyright,
trademark, U.S. patent, rights of publicity, moral rights or any other third
party right, including without limitation, any music performance or other music
related rights, and (iii) does not and will not contain any Content which
violates any applicable law or regulation ((i), (ii) and (iii) collectively, the
"Rules"). Notwithstanding the foregoing or any other term hereof, ICP makes no
representation or warranty with respect to Content that has been provided by
AOL, an AOL affiliate, an AOL member or any other end-user of ICP's Interactive
Services. In the event that AOL notifies ICP in writing that any such Content,
as reasonably determined by AOL, does not comply or adhere to the Rules, then
ICP shall use its best efforts to block access by AOL Members to such Content.
In the event that ICP cannot, through its best efforts, block access by AOL
Members to such Content in question, then ICP shall provide AOL prompt written
notice of such fact. AOL may then, at its option, either (i) restrict access
from the AOL Network to the Content in question using technology available to
AOL or (ii) in the event access cannot be restricted, direct ICP to remove any
such Content. ICP will cooperate with AOL's reasonable requests to the extent
AOL elects to implement any such access restrictions.
AOL NETWORK DISTRIBUTION. ICP shall not authorize or permit any third party to
distribute any Content of ICP through the AOL Network absent AOL's prior written
approval. The distribution, placements and/or promotions described in this
Agreement or otherwise provided to ICP by AOL shall be used by ICP solely for
its own benefit, will link to and promote solely the Licensed Content within the
ICP Internet Site or ICP Programming expressly described on Exhibit A and will
not be resold, traded, exchanged, bartered, brokered or otherwise offered or
transferred to any third party or contain any branding other than ICP's
branding. Further, the Content of all such distribution, placements and
promotions shall be subject to AOL's policies relating to advertising and
promotion, including those relating to AOL's exclusivity commitments and other
contractual preferences to third parties.
CHANGES TO AOL PROPERTIES. 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, including without limitation, by adding or deleting
channels, subchannels and/or screens and/or by outsourcing to a third party the
programming responsibility for any channel, subchannel, screen or portion
thereof. If such redesign or modification substantially modifies the nature of
the distribution provided under this Agreement in a material adverse fashion, or
if AOL is otherwise unable to deliver any particular Promotion, AOL will work
with ICP in good faith to provide ICP, as its sole remedy, with comparable
distribution.
CONTESTS. ICP shall ensure that any contest, sweepstakes or similar promotion
conducted or promoted through the ICP Internet Site and/or ICP Programming (a
"Contest") complies with all applicable laws and regulations. ICP shall provide
AOL with (i) at least thirty (30) days prior written notice of any Contest and
(ii) upon AOL's request, an opinion from ICP's counsel confirming that the
Contest complies with all applicable federal, state and local laws and
regulations.
DISCLAIMERS. ICP agrees to include within the ICP Internet and ICP Programming a
disclaimer (the specific form and substance to be mutually agreed u
