The Terms and Conditions below outline the terms under which ICP provides content for use on the AOL Services.
1. ONLINE TERMS
1.1 AOL Network Distribution. The distribution, placements or promotions described in this Agreement or otherwise provided to ICP by AOL shall be used by ICP solely for its own benefit, and ICP shall not resell, trade, exchange, barter or otherwise offer the same to any third party.
1.2 Management of the ICP Content and the Linked Site. AOL shall be entitled to require reasonable changes to the ICP Content (including, without limitation, to its features or functionality) and (where applicable) the Linked Site to the extent such Content will, in AOL's good faith judgement, materially and adversely affect any operational aspect of the AOL Network. Except as specifically provided for in this Agreement, AOL shall have no obligations of any kind with respect to the ICP Content and (where applicable) the Linked Site and ICP shall not state or imply that AOL recommends or endorses the ICP Content or the Products. ICP shall be responsible for any hosting or communication costs associated with the Linked Site, where applicable.
1.3 AOL Accounts. To the extent AOL has granted ICP any complimentary or overhead accounts on the applicable AOL Service, ICP will be responsible for the actions taken under or through such accounts, which actions are subject to the applicable member agreement and any applicable conditions or terms of service and for any surcharges, including, without limitation, all premium charges, transaction charges, telephone charges and any applicable communication surcharges incurred by any account issued to ICP, but ICP will not be liable for charges incurred by any account relating to AOL's standard monthly usage fees and standard hourly charges, which charges AOL will bear. Upon the termination of this Agreement, all accounts, related screen names and any associated usage credits or similar rights, will automatically terminate. AOL will have no liability for loss of any data or content related to the proper termination of any such account.
1.4 Navigational Tools. Any Keyword offered to ICP by this Agreement shall link to the ICP Content or (where applicable) the Linked Site, and shall be subject to availability for use by ICP. AOL reserves the right at any time to immediately revoke ICP's use of any Keyword that is not a registered trademark of ICP. ICP acknowledges that its use of a Keyword will not create in it, nor will it represent it has, any right, title or interest in or to such Keyword, other than the right, title and interest ICP holds in ICP's registered trademark independent of the Keyword. Without limiting the generality of the foregoing, ICP will not: (a) attempt to register or otherwise obtain trademark protection in the Keyword in so far as it relates to the use of such trade mark over the AOL Network; or (b) use the Keyword, except for the purposes expressly permitted under this Agreement. To the extent AOL allows Users to "bookmark" the URL or other locator for the ICP Content or Linked Site, such bookmarks will be subject to AOL's control at all times. Upon the termination or expiry of this Agreement, ICP's rights to any Keyword and book-marking will terminate. If this Agreement includes any other mechanism by which the ICP Content or the Linked Site will be promoted in connection with specified search terms within any AOL Service, ICP hereby undertakes that it has all consents, authorisations, approvals, licenses, permits or other rights necessary to use such specified search terms. Notwithstanding the foregoing, AOL shall have the right to suspend or revoke the use of any search term if AOL has reason to believe continued use may subject AOL to liability or other adverse consequences.
1.5 Changes to AOL Network. AOL reserves the right to redesign or modify the organisation, structure, "look and feel," navigation, Content and other elements of the AOL Network at any time and without notice, including without limitation, by adding or deleting channels, sub-channels and/or screens and/or by outsourcing to a third party the programming responsibility for any channel, sub-channel, screen or portion thereof.
2. LICENCES AND RIGHTS OWNERSHIP
2.1 Trademark Licence. Solely to the extent necessary for the design and implementation and use on the AOL Services of the ICP Content and (where applicable) the Linked Site, and subject to the other provisions contained herein, (a) ICP will be entitled to use the trade names, trademarks, and service marks of the AOL Services; and (b) AOL and the AOL Affiliates will be entitled to use the trade names, trademarks, and service marks of ICP, (collectively the "Marks") provided that each Party: (i) does not create a unitary composite mark involving a Mark of the other Party; (ii) displays symbols and notices clearly and sufficiently indicating the trademark status and ownership of the other Party's Marks in accordance with applicable trademark law and practice; and (iii) complies with all written guidelines provided to it by the other Party related to use of the other Party's Marks. Each Party acknowledges that its use of the other Party's Marks will not create in it, nor will it represent it has, any right, title, or interest in or to such Marks other than the licences expressly granted herein. Each Party agrees to supply the other Party, upon request, with a reasonable number of samples of any materials publicly disseminated by such Party that use the other Party's Marks. Each Party agrees to promptly notify the other Party of any unauthorised use of the other Party's Marks of which it has actual knowledge. Each Party will have the sole right and discretion to bring proceedings alleging infringement of its Marks; provided, however, that each Party agrees to provide the other Party with its reasonable co-operation and assistance with respect to any such infringement proceedings.
2.2 Rights Ownership. AOL acknowledges and agrees that ICP (or its licensors) shall own the Intellectual Property Rights in the ICP Content, other than in any Content supplied by AOL and integrated therein (e.g., AOL Marks and other branding) and in the AOL Look and Feel as applied to the ICP Content. ICP acknowledges and agrees that this Agreement shall not operate to assign to ICP any Intellectual Property Rights or other rights, title and interest in and to the (a) AOL Look and Feel, or (b) advertising and promotional spaces within the AOL Network, including without limitation AOL frames and any other visible elements of AOL's client software appearing around the ICP Content and the Linked Site when a User is viewing the ICP Content or the Linked Site.
3. WARRANTIES AND UNDERTAKINGS
3.1 General. Each Party warrants to the other Party that: (i) it has the full corporate right, power and authority to enter into this Agreement, to grant the licences granted hereunder and to perform the acts required of it hereunder; and (ii) the execution of this Agreement by it, and the performance by it of its obligations and duties hereunder, do not and will not breach any agreement to which it is a party or by which it is otherwise bound.
3.2 Undertakings. Where it is permitted under this Agreement to sell Products on the ICP Content or on the Linked Site, ICP undertakes that it possesses all authorisations, approvals, consents, licenses, permits, certificates or other rights and permissions necessary to sell the Products. ICP further undertakes that the ICP Content and, where applicable, the Linked Site, Promotional Materials, the Products and any contest or similar promotion operated by ICP alone or in conjunction with AOL do not and will not (i) breach any applicable law, regulation or code of conduct (including without limitation by being misleading or inaccurate) and including breach of laws relating to contests and similar promotions and the provisions of the Advertising Standards Authority or the Direct Marketing Association; (ii) breach any third party right (including without limitation by being defamatory or infringing any Intellectual Property Right); or (iii) contain or originate any contaminated file, virus, worm or Trojan horse.
3.3 Exclusion. Except as expressly set forth in this Agreement and to the extent permitted by law, neither Party makes any and each Party hereby specifically excludes all terms, conditions, representations or warranties, express or implied whether by statute, common law or otherwise. Without limiting the generality of the foregoing, AOL specifically disclaims any such term, condition, representation or warranty regarding availability of the AOL Network or any benefit the ICP may derive from AOL's use of the ICP Content or the Linked Site on the AOL Services.
Each Party acknowledges that Confidential Information may be disclosed to the other Party during the course of this Agreement. Each Party agrees that it will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, during the term of this Agreement, and for a period of two years following expiration or termination of this Agreement, to prevent the disclosure of Confidential Information of the other Party, other than to its employees or agents who must have access to such Confidential Information to perform such Party's obligations hereunder.
5. LIMITATION OF LIABILITY AND INDEMNIFICATION
5.1 Liability. Subject to clause 5.2, neither Party shall be liable to the other for indirect or consequential loss or damage (including without limitation loss of business, profits or revenues), incurred in connection with this Agreement, whether arising in contract, tort (including negligence) or otherwise howsoever. Nothing in this Agreement shall exclude or limit either Party's liability in respect of death or personal injury arising from that party's negligence or liability for fraudulent misrepresentation.
5.2 Indemnity. ICP hereby agrees to indemnify, defend and hold harmless AOL and the AOL Affiliates from and against all losses, damages, costs, claims and expenses arising out of any breach of warranty or undertaking in clause 3.2, or out of any material breach by ICP of any other representation, warranty or undertaking set out in this Agreement (each referred to as a "Claim"). AOL will notify the ICP of any Claim and take reasonable account of the ICP's directions with regard to that Claim. ICP acknowledges that this Agreement has been concluded by AOL for the benefit of itself and the AOL Affiliates.
5.3 Limitation of Liability. Subject to clause 5.2, each Party's aggregate liability for loss, damages or expense whether arising in contract, tort (including negligence) or otherwise howsoever shall in no event exceed £250,000 in respect of liability arising in each consecutive period of 12 months of this Agreement in respect of each event or series of connected events.
6. RELATIONSHIP WITH AOL USERS
6.2 User Communications. ICP shall ensure that all e-mails and other communications directed to Users ("User Communications") comply with clause 6.1. ICP shall not send or permit the sending of any User Communication through or into the AOL Network except where (i) ICP has a Prior Business Relationship with the recipient; (ii) ICP includes in the communication a prominent and easy means to "opt-out" of receiving any future communications from ICP; and (iii) the communication does not contain any advertisements or promotion for any other Interactive Service. "Prior Business Relationship" means that the User to whom a User Communication is sent has, prior to the sending of such User Communication, voluntarily (i) engaged in a transaction with ICP or (ii) supplied information to ICP through a contest, registration, or other communication on the Linked Site; provided in each case that ICP has given prior clear notice to the User that supplying information could result in a User Communication being sent. No User Communication shall (x) target Users separately from ICP's aggregated list of customers; (y) identify Users as members of AOL; or (z) refer to AOL, AOL Affiliates or any of their trade marks unless such reference is editorial or is expressly permitted by AOL. All User Communications are subject to AOL's e-mail filtering or other technology aimed at the distribution of bulk e-mail.
7.1 Change in Control. ICP shall immediately notify AOL in writing if there is any change in Control of ICP. AOL may, after receipt of such notice or otherwise becoming aware of such change in Control, terminate this Agreement by not less than 30 days prior written notice to ICP. "Control" in this clause 7.1 shall mean in respect of any entity, (a) direct or indirect control of at least fifty percent (50%) of the voting rights required to elect a majority of its directors, (b) the power directly or indirectly (i) to elect a majority of its directors or (ii) to cause the direction of its management, whether through share ownership, contract or otherwise, or (c) the direct or indirect ownership or control of all or substantially all of its assets reasonably required for the performance of the Agreement.
7.2 Termination. 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. 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, or (v) an event occurs or a declaration is made in respect of the other party which is the equivalent in an applicable jurisdiction of (i), (ii), (iii) or (iv) above.
8.1 Independent Contractors. The Parties to this Agreement are independent contractors and neither Party is an agent, representative or partner of the other Party.
8.2 Notice. Any notice or other communication required to be given under this Agreement shall be in writing and shall be considered given: (i) on the delivery date where delivered by hand or courier; (ii) on the second working day after the posting date where sent by first class pre-paid post; or (iii) on the delivery date where sent by fax (subject to retention by the sending party of confirmation of successful transmission). In the case of AOL, such notice or communication will be provided to both the Senior Vice President for Business Affairs and General Counsel, each at the address of AOL set forth in the first paragraph of this Agreement (or such replacement address as AOL may notify to ICP from time to time), with fax number +44 (0) 20 7348 8016. In the case of ICP, the notice address shall be the address for ICP set forth in this Agreement.
8.3 No Waiver. The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such Party's right to assert or rely upon any such provision or right in that or any other instance; rather, the same shall be and remain in full force and effect.
8.4 Survival. Clauses 4, 5, 6 and 8 of these Standard Terms will survive the completion, expiration, termination or cancellation of this Agreement. Any termination of this Agreement shall be without prejudice to any rights and payment obligations accrued in favour of either party prior to or upon the date of such termination.
8.5 Entire Agreement. This Agreement, and the documents referred to in it, constitute the entire agreement and understanding of the parties and supersede any previous agreement between the parties relating to the subject matter of this Agreement. Each Party acknowledges and agrees that in entering into this Agreement, and the documents referred to in it, (i) it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement, and (ii) the only remedy available to it in respect of matters arising out of this Agreement shall be for breach of contract under the terms of this Agreement. Nothing in this paragraph shall, however, operate to limit or exclude any liability for fraud.
8.6 Amendment. No change, amendment or modification of this Agreement shall be valid unless made in writing and signed on behalf of each Party.
8.7 Assignment. ICP shall not assign this Agreement or any right, interest or obligation under this Agreement without the prior written consent of AOL. AOL may assign the Agreement or any right, interest or obligation under it to any AOL Affiliate or to any successor of AOL by way of merger, consolidation or the acquisition of all or substantially all of the business and assets of AOL relating to the Agreement.
8.8 Construction; Severability. In the event that (i) any provision of this Agreement conflicts with the law under which this Agreement is to be construed, such term will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with such law or (ii) if any provision of this Agreement is held invalid by any other court with jurisdiction over the Parties to this Agreement such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with the applicable law in respect of that jurisdiction only. The remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect.
8.9 Applicable Law; Jurisdiction. This Agreement shall be interpreted, construed and enforced in all respects in accordance with the laws of England and the Parties accept the exclusive jurisdiction of the courts of England.
8.10 Third Party Rights. Except as provided for in the Agreement, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term or provision of this Agreement, but this does not affect any right or remedy of a third party which exists or is available apart from that Act. The parties agree that the AOL Affiliates shall not be required to give their consent to any amendment or variation of the Agreement.
8.11 Force Majeure. Neither Party shall be liable for, or be considered in breach of this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions which are beyond such Party's reasonable control and which such Party is unable to overcome by the exercise of reasonable diligence.
8.12 Headings. The headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.