Preview of our top selling Marketing Agreement
Tel-save / AOL- Marketing & Distribution Agreement
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TELECOMMUNICATIONS MARKETING AGREEMENT
by and among
TEL-SAVE, INC.
TEL-SAVE HOLDINGS, INC.
AMERICA ONLINE, INC.
February 22, 1997
TELECOMMUNICATIONS MARKETING AGREEMENT
This TELECOMMUNICATIONS MARKETING AGREEMENT, dated as of February 22, 1997, is made by and among: (i) America Online, Inc., a Delaware corporation ("AOL"), on the one hand, and (ii) Tel-Save, Inc., a Pennsylvania corporation ("TS"), and Tel-Save Holdings, Inc., a Delaware corporation ("Holdings"), on the other hand (each, a "party" and, collectively, the "parties"), with respect to the following:
WHEREAS, AOL is in the business of providing online services to consumers in the United States;
WHEREAS, TS is in the business of providing telecommunications services and is a wholly owned subsidiary of Holdings;
WHEREAS, AOL and TS wish to enter into this Agreement whereby AOL will market telecommunications services to customers of AOL's online service under one or more brand names to be owned by it and TS will provide such services on the terms and subject to the conditions herein set forth; and
WHEREAS, Holdings has agreed to guarantee all of the obligations of TS hereunder.
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
A. Definitions.
For purposes of this Agreement and in addition to the terms defined elsewhere in this Agreement, the following terms shall have the meanings set forth below:
1. "Actual Services Costs" for any calendar quarter means the aggregate of the respective costs set forth in, and calculated in accordance with, Schedule A hereto in respect of the provision of Services during such calendar quarter.
2. "Additional Warrant" shall have the meaning set forth in Section X.B.2 hereof.
3. "Ad Values" at any time shall mean * * *
4. "affiliate" means, with respect to a specified person, any other person that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such specified person, provided that, for purposes of this Agreement, "affiliate" shall not include natural persons.
5. "Agreement" means this Telecommunications Marketing Agreement.
6. "AOL" has the meaning set forth in the preamble to this Agreement.
7. "AOL Marks" means the service marks to be owned by AOL under which the Services will be marketed, which are presently contemplated by the parties to include a reference to AOL's name and shall be as mutually agreed to in writing by the parties hereto.
8. "AOL Performance List" has the meaning set forth in Section II.B.1.
9. "AOL Service" means AOL's online service provided to subscribers (including, without limitation, individuals and businesses) in the United States under the America Online(R) brand name, including, without limitation, electronic mail, conferencing, news, sports, weather and stock quotes, accessed by consumers through computers using AOL's proprietary software, as it exists on the date hereof and any online service provided by AOL or any of its affiliates that is a successor thereto or substitute therefor.
10. "Applicable Profit Percentage" for any calendar quarter means the percentage of Pre-Tax Profit for such calendar quarter equal to:
(a) for each quarter in which * * *, 50%; and
(b) for each quarter in which * * *, 50% plus
an additional 2% for each * * *;
provided that in no event will the Applicable Profit Percentage exceed 70%.
11. "AT&T" means AT&T Corporation.
12. "Checklist Items" are the items set forth in the list attached as Schedule B hereto.
13. "Commercial Launch Date" means the date upon which AOL makes the Services generally available to subscribers of the AOL Service (i.e., to at least * * * % of the subscribers to the AOL Service).
14. "Commercial Mobile Radio Services" means the services defined as such, from time to time, by the Federal Communications Commission, including related features, functions and services.
15. "Dedicated CIC" means the carrier identification code (CIC) to be made available by TS for use in respect of the Services as provided herein.
16. "Effective Date" has the meaning set forth in Section IX.A.1. hereof.
17. "End User" means, during the Term, any customer of the Services or any part thereof and, after the Term, any such customer as of the last day of the Term so long as such customer continues as a customer of such Services.
18. "Extension Period" shall have the meaning set forth in Section X.B.1 hereof.
19. "Gross Revenues" for any calendar quarter shall mean * * *.
20. "Holdings" has the meaning set forth in the first paragraph of this Agreement.
21. "Initial Launch Period" means the period beginning at the end of the Test Launch Period and ending on the Commercial Launch Date.
22. "Initial Payment" has the meaning set forth in Section V.A.1.
23. "Internet Telephony" means voice service provided or initiated over one or more data networks where the end user initiates a voice call to, or receives a voice call from, another party over one or more data networks using a modem or CODEC or over a data network interfacing with the public switched telephone network using a modem or CODEC.
24. "Introductory Period" means the * * * period starting a mutually agreed number of days prior to the anticipated Commercial Launch Date. The parties currently anticipate that the Commercial Launch Date will be no later than * * * , subject to adjustment from time to time upon the mutual consent of the parties or as otherwise provided herein.
25. "Local Telecommunications Services" means the provision of telephone exchange service or exchange access, including related features, functions and services.
26. "Long Distance Telecommunications Services" means intrastate telephone toll service, interstate telephone service and international telephone service, including private line service, and including related features, functions and services, as well as:
Calling Card calls, meaning those calls billed to the customer account
which has been established to allow for the use of an authorization
code for direct dialed calls using any toll free number, 0+ access, or
operator assisted calls using a service provider's calling card
authorization platform for billing to the customer account at a later
Operator Handled calls, meaning all calls where an operator or
automated mechanized system provides the end user with the ability to
place collect calls,