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EXHIBIT 10.5





[*] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS WITH ASTERISKS, HASs BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.



FORM OF

AOL LICENSE AGREEMENT



THIS AOL LICENSE AGREEMENT (this "Agreement"), dated as of ________, 2000, entered into by and between America Online, Inc., a Delaware corporation ("AOL" or "Licensor"), and America Online Latin America, Inc., a Delaware corporation (the "Company"), having its principal offices at 6600 N. Andrews Avenue, Suite 500, Ft. Lauderdale, FL, USA 33309.



WITNESSETH:

----------



WHEREAS, AOL and Licensee have entered into an Online Services Agreement (the "AOL OLS Agreement"), pursuant to which AOL agreed, among other undertakings, to provide certain services to the Company and its subsidiaries necessary for the conduct by the Company of its Business (as defined herein).



WHEREAS, pursuant to the Restated Certificate of Incorporation of the Company (as the same may be amended and restated from time to time, the "Certificate of Incorporation"), the Company is to operate and/or market and support the Business in the Territory (as defined herein) through certain operating entities wholly owned, directly or indirectly, by Licensee (individually, an "Operating Entity," and collectively, the "Operating Entities").



WHEREAS, on the date hereof, AOL executed a guarantee (the "AOL Guarantee") for the benefit of the Company and its Operating Entities, pursuant to which AOL has guaranteed, inter alia, the obligations of Licensor under this Agreement.



NOW, THEREFORE, in consideration of the mutual agreements set forth below, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:



AGREEMENT:

---------



1. DEFINITIONS; CONSTRUCTION. Capitalized terms used but not defined in the body of this Agreement shall have the meaning given to such terms in Attachment

---------- A. Other capitalized terms without definition shall have the meanings given in - - the Certificate of Incorporation. Unless the context clearly indicates otherwise, any term defined or used in the singular will include the plural. Use of the term "include" or "including" will be construed to mean "include without limitation" or "including without limitation", as applicable.



2. GRANT OF RIGHTS.



2.1 License Grant. Subject to the terms and conditions of this Agreement

------------- and the Certificate of Incorporation, Licensor hereby grants to Licensee an exclusive (with respect to PC Access Services, TV Access Services and Wireless Access Services and a non-exclusive (except as provided in Section 2.9 below) with respect to Internet Portal Services), but subject to





termination of exclusivity pursuant to Section 5 below, non-transferable (except as expressly provided herein) right and license within the Territory to:



(a) implement, transmit, display, copy, perform and use the Licensed Products for the sole purpose of, and as necessary for, enabling Licensee to Launch, operate, provide, manage and administer Licensee Interactive Services in the Territory as contemplated herein,



(b) sublicense the Client Product to Subscribers pursuant and subject to the terms and conditions set forth in the subscriber agreements which are part of the AOL Standard Forms to be used by Licensee pursuant to Section 3.3 below,



(c) access, display and grant to Subscribers (with respect to PC Access Services, TV Access Services and Wireless Access Services) and to users of Licensee's Internet Portal Services, the right to access Content through Licensee Interactive Services, including AOL Services Content and other Content, but excluding Restricted Content,



(d) market and distribute the Client Product to potential Subscribers in the Territory directly and through authorized third parties that so market and distribute on Licensee's behalf,



(e) use Licensor's Confidential Information and Licensed Products only to the extent necessary (i) to allow Licensee to Launch, provide, manage, administer and market Licensee Interactive Services in the Territory, (ii) to allow Licensee to develop, create, procure, market, transmit, maintain, enhance, manage and administer Content for use in connection with Licensee Interactive Services, and (iii) to allow Content providers to develop, create, transmit, procure, market, maintain, enhance, manage and administer Content pursuant and subject to the terms and conditions set forth in the Content provider agreements which are part of the AOL Standard Forms to be used by Licensee pursuant to Section 3.3 below,



(f) use Licensor's training and technical support for the sole purpose of enabling Licensee to Launch, operate, provide and manage, and administer Licensee Interactive Services as contemplated herein, and



(g) translate and modify online forms included within the Licensed Products as reasonably necessary to conform such forms to the local languages, laws and business practices of the Territory.



All of the foregoing rights are granted solely in connection with the Launch, operation, provision, management and administration of Licensee Interactive Services during the Term.



2.2 Third Party Products. Subject to the terms and conditions of this

-------------------- Agreement, Licensor grants to Licensee the same license rights in respect of Third Party Products that Licensor has granted in respect of the Licensed Products in Section 2.1, but only to the extent that Licensor is permitted to grant such license rights to Licensee and subject to the payment of applicable third-party royalties or fees, if any, as specified in this Section 2.2. All of the foregoing rights are granted solely in connection with the Launch, operation, provision, management and administration of Licensee Interactive Services during the Term. Licensor shall sublicense to Licensee all of such license rights to Third Party Products to the extent Licensor





has such rights as of the Effective Date and thereafter during the Term to the extent Licensor has such rights and to the extent that Licensor has licensed, offered to license or otherwise made available such Third Party Products to other JV Affiliates consistent with AOL's Uniform Policies. Licensor shall use commercially reasonable efforts to obtain from third parties the best overall terms for such licenses, which may include royalty bearing licenses as provided in this Section 2.2, to permit Licensee to use all other Third Party Products. Licensee shall reasonably assist Licensor in obtaining such licenses and shall execute any required license agreements if so requested by Licensor. In the event Licensor's efforts to obtain from a third party appropriate licenses to permit Licensee to use a Third Party Product are unsuccessful, Licensor shall use commercially reasonable efforts, at Licensee's expense but in Licensor's reasonable discretion, either (a) to obtain from another third party license rights to reasonably similar software that may be substituted for the unavailable Third Party Product or (b) to develop a commercially reasonable workaround for the unavailable Third Party Product during the period of its unavailability. Licensee acknowledges and agrees that prior to the exercise of any of the rights specified in this Section 2.2, the exercise of which require that Licensee obtain license rights directly from the owners of Third Party Products, Licensee shall, with Licensor's commercially reasonable assistance, first have obtained all necessary license rights from the owners of Third Party Products to use such products. For the avoidance of doubt, Licensor's obligation to assist Licensee in obtaining such license rights shall not oblige Licensor to pay any royalties, fees or other consideration for such rights, or otherwise to provide financial assistance of any sort to Licensee. Notwithstanding any other provision of this Agreement, Licensee shall have no obligation to license or use any Third Party Product for which Licensee is required to pay any expense, royalty or fee if other JV Affiliates are not required to use such Third Party Product pursuant to AOL's Uniform Policies consistently applied to all JV Affiliates. Licensee must, however, accept any license and pay any royalties required for use of Third Party Products which are Requested Developments or New AOL Developments. The foregoing shall be applicable only with respect to PC Access Services until such time as the Company and Licensee shall obtain the right to offer such TV Access Services and Wireless Access Services in the Territory in accordance with the provisions of the Certificate of Incorporation. If and when the Company and Licensee shall obtain the right to offer such TV Access Services and Wireless Access Services in the Territory, AOL and Licensor shall provide such Requested Developments and New AOL Developments to Licensee in respect of such TV Access Services and Wireless Access Services in the Territory on the same basis as it has theretofore provided them in respect of PC Access Services.



(a) Licensee Payments for Third Party Products. Subject to Section

------------------------------------------ 2.2(b), Licensee shall pay Third Party Product fees and royalties under the following circumstances: (i) the licensor of a Third Party Product demands a payment to expand the scope of the existing license grant to permit Licensee to use the Third Party Product, e.g., to expand existing geographic or usage restrictions; or (ii) (x) AOL's license agreement with the licensor of the Third Party Product contains a per host computer charge, per client charge, usage charge or other charge or fee based upon the nature of the use thereof, and (y) AOL has dedicated one or more host computers to Licensee, regardless of the physical location of such computers, or Licensee's use of such Third Party Products otherwise gives rise to such per client, usage or other charge or fee. Licensor shall exercise commercially reasonable efforts to obtain for Licensee such Third Party Products at fees and royalty rates that are the lowest that can be obtained and at least as





favorable as similar fees and royalty rates paid by JV Affiliates on the Effective Date or thereafter during the Term (taking into account as appropriate the level of usage and other factors that reasonably impact royalties and fees). Licensee shall also pay all costs and expenses associated with (A) translating or otherwise modifying the Third Party Product for use in the Territory; (B) modifying the Third Party Product to enable such software to be exported to the Territory; and (C) complying with any import or export control regulations of the relevant jurisdiction(s) to enable the Third Party Product to be imported into or exported to the Territory. Licensor represents that in the year preceding the Effective Date, the total of all royalties, fees and other costs and expenses attributable to existing Third Party Products for any JV Affiliate AOL Service in any country did not exceed fifty thousand dollars ($50,000).



(b) Spun-off Licensed Products. In the event AOL and/or its Wholly-

-------------------------- Owned Affiliates should cease to own any component of the Licensed Products, such component (i) shall, if it is a Core AOL Technology, be deemed a Licensed Product for the Term and shall not be deemed to be a Third Party Product, and (ii) shall, if (x) it is a Peripheral AOL Technology, (y) AOL and/or such Wholly-Owned Affiliate cease to own such Peripheral AOL Technology for a bona fide business purpose (including achieving wider promulgation of technology in the marketplace, attracting qualified developers, or achieving enhanced technical capability, support, maintenance, development or training in respect of such Peripheral AOL Technology), and (z) the treatment of such Peripheral AOL Technology as a Third-Party Product would not cause Licensee, at any time during the Term, to pay greater fees or royalties (taking into account as appropriate the level of usage and other factors that reasonably impact royalties and fees) than AOL or any of its Affiliates or JV Affiliates providing AOL Services, then such Peripheral AOL Technology shall be deemed a Licensed Product for eighteen (18) months (or such longer period as is consistent with subsection (z) above) after such Licensed Product component is no longer owned by AOL and/or its Wholly-Owned Affiliates and shall thereafter be deemed a Third Party Product . Under such circumstances, if AOL and/or any of its Wholly-Owned Affiliates elect(s) to use the technology of a third party in lieu of any component of the Peripheral AOL Technology in providing AOL-US Service, such component shall be deemed a Licensed Product for eighteen (18) months (or such longer period as is consistent with subsection (z) above) after AOL elects to use such technology and shall thereafter be deemed a Third Party Product for the purposes of this Agreement, subject to subsection (z) above.



2.3 Documentation. Subject to the terms and conditions of this Agreement,

------------- Licensor hereby grants to Licensee an exclusive (with respect to PC Access Services, TV Access Services and Wireless Access Services) and a non-exclusive (except as provided in Section 2.9 below, with respect to Internet Portal Services), but subject to the termination of exclusivity pursuant to Section 5 below, non-transferable (except as provided herein) license in the Territory to use, translate into the local language(s) of the Territory, display and reproduce the Documentation relating to the Licensed Products only within the Territory and to the extent necessary to Launch, operate, provide, manage and administer the Licensee Interactive Services; provided, however that Licensee shall have no right to, and Licensee agrees not to, adapt, alter, modify or create derivative works of the Documentation other than the translation(s) contemplated above. Licensor shall provide Licensee with the Documentation set forth in Attachment B with respect to PC Access Services, and appropriate

------------ documentation as Licensor and Licensee mutually deem necessary or desirable upon the addition of TV Access Services and/or Wireless Access Services





to the Licensee Interactive Services being provided by Licensee. Licensor reserves the right to amend Attachment B from time to time to permit Licensor to make such reasonable changes as are necessary for Licensor to provide such Documentation on a consistent worldwide basis. Licensor shall provide Licensee with prior notice of such amendments to Attachment B. All of the foregoing rights granted to Licensee are granted solely in connection with the Launch, operation, provision, management and administration of Licensee Interactive Services during the Term. Notwithstanding the foregoing, the Content provider's guide or the remote managed gateways guide may also be distributed to Content providers to Licensee Interactive Services provided that Licensee has entered into an agreement with each such Content provider substantially consistent with the Content provider agreements which are part of the AOL Standard Forms to be used by Licensee pursuant to Section 3.3 below, as the same may be modified from time to time. Licensor shall own all right, title, and interest in the Documentation and all translations of the Documentation. Licensee shall place on all such copies of the Documentation an internationally recognized copyright notice and other proprietary rights legends specified by Licensor. All translated Documentation will be considered works made for hire commissioned by Licensor such that copyright ownership of such translations shall immediately vest in Licensor. If any such Documentation may not be considered works made for hire under applicable law, Licensee hereby irrevocably assigns to Licensor without further consideration all of Licensee's right, title and interest in and to such Documentation, including U.S. and foreign copyrights. Licensee shall distribute such translations only within the Territory and in connection with the Licensed Products to the extent provided above.



2.4 AOL Services Content. Without limiting the scope of the license set

-------------------- forth in Section 2.1, Licensor shall provide to Licensee and Licensee's Subscribers to its PC Access Services, free of charge, access to substantially all of the AOL-US Services Content and substantially all of the other AOL Services Content. In addition, Licensor shall provide to Licensee and to users of Licensee's Internet Portal Services access to AOL-US Services Content and other AOL Services Content in substantially the same manner they are made available to users of AOL's US-based Internet Services Portal. As and when the Company and Licensee shall obtain the right to offer TV Access Services and Wireless Access Services in the Territory in accordance with the provisions of the Certificate of Incorporation, Licensor shall provide to Licensee and Licensee's Subscribers to such Services access to the AOL-US Services Content and the other AOL Services Content in substantially the same manner such Content is made available to users of AOL-branded TV Access Services and AOL-branded Wireless Access Services in the U.S. With respect to any other AOL Services Content, Licensor shall exercise commercially reasonable efforts to obtain the rights to provide to Licensee and Licensee's Subscribers access to such other AOL Services Content on commercially reasonable terms that are as favorable as access to such Content is made available to any other JV Affiliate. Licensee may, in the reasonable discretion of the Board of Directors, which the Board of Directors may exercise for Licensee or on behalf of an Operating Entity, prominently display its Interconnection pursuant to Section 2.5 of the AOL OLS Agreement to the AOL-US Service and the other AOL Services and minimize the number of click throughs from the main menus of the Licensee Interactive Services necessary to access the main menus of the AOL-US Services and other AOL Services, in order to facilitate Subscribers' access to the Content on such AOL Services. In addition, upon the request of Licensee, Licensor shall provide to Licensee and Licensee's Subscribers, free of charge, direct access (i.e., other than through Interconnection) to





substantially all of the AOL-US Services Content on the same basis, with respect to the differing Licensee Interactive Services, as is set forth above. The direct access to other AOL Services and to Content of the AOL-US Service, contemplated in this Section 2.4 shall be subject, among other reasonable limitations, to (a) any "referee screens" or other intermediate notices warning Subscribers that they are changing countries and different standards may therefore apply, as Licensor deems such notices reasonably necessary to accommodate local legal and cultural concerns, (b) coordination with the AOL Services and their respective Content channels to ensure that such access by the Licensee Interactive Services is technically feasible and will not result in the distribution of any Restricted Content, and (c) any technical limitations not due to Licensor's failure to meet its obligations under this Agreement or the AOL OLS Agreement, which failure is within AOL's reasonable control, precluding Interconnection or direct access, such as the inability of the Licensee Interactive Services to access and process Japanese characters.



2.5 License Fees. (a) Except as set forth in this Section 2.5 or as

------------ otherwise expressly provided herein, the licenses granted in Sections 2.1, 2.2, 2.3 and 4.1 shall be royalty-free; provided, however, that to the extent that any royalty shall be deemed by applicable tax law to exist by virtue of this Agreement, Licensee will be responsible for any taxes associated therewith.



(b) Notwithstanding the foregoing, if and to the extent that any court of competent jurisdiction shall invalidate, delete, amend, sever or otherwise modify any of the provisions of (i) Clauses (c), (d), (e) or (f) of Article THIRD of the Certificate of Incorporation (or any successors thereto), (ii) Section 6.4(c) hereof, or (iii) Section 10.2 of the Stockholders' Agreement, with the result that AOL or any of its Subsidiaries or Affiliates (including, without limitation, Licensor, but excluding the Company, Licensee and each and every Operating Entity) becomes liable to the Company, Licensee, any Operating Entity or any holders of any equity interests in any of them, including, without limitation, any holders of Class A Common Stock of the Company, for, or otherwise incurs any, Damages arising out of or in connection with any action or inaction that was permitted by the provisions of Article THIRD of the Certificate of Incorporation as in effect as of the time of such action or inaction (without taking into account any such invalidation, deletion, amendment, severance or other modification), then Licensee shall be obligated to pay Licensor a royalty in respect of the licenses granted in Sections 2.1, 2.2, 2.3, 2.9, if any, and 4.1 in an amount equal, in the aggregate, to the full amount of such Damages, as the same may be incurred from time to time. Such royalty payments shall be due and payable by Licensee on the date that is thirty (30) days after receipt of an invoice therefor from Licensor.



2.6 License Limitations.

-------------------



(a) License Exclusions. The licenses granted pursuant to Sections 2.1

------------------ through 2.3 do not include, and Licensee shall have no right hereunder, under any circumstances, to receive, use or make copies of the Source Code for the Licensed Products or Third Party Products. Further, the licenses granted pursuant to Sections 2.1 through 2.3 do not include the right to, and Licensee agrees not to (i) except to the extent contemplated under Sections 2.3 and 2.1(a) herein and Section 2.2 of the AOL OLS Agreement, adapt, alter, modify, translate or create derivative works of the Licensed Products, Third Party Products, Documentation or AOL Services Content, (ii) reverse engineer, decompile, disassemble, or otherwise attempt to





reconstruct the Source Code for the Licensed Products or Third Party Products or (iii) reverse engineer, reconstruct or otherwise attempt to ascertain, or adapt, alter or modify, the proprietary protocols, algorithms, internal instructions and command sets used in the operation of the Licensed Products or the Third Party Products. Licensee may exercise the license rights granted pursuant to Sections 2.1 through 2.3 and pursuant to Section 2.9, if any, only within the Territory; Licensee shall have no right or license, express or implied, to exercise any of such license rights outside the Territory.



(b) Restricted Content. Licensee agrees that it is necessary, inter

------------------ alia, in order to observe and comply with applicable local laws and the rights of Content providers and other Persons, not to use, reproduce, market, distribute, display, perform, transmit or grant access to Restricted Content. Consistent with AOL's Uniform Policies regarding Restricted Content, in the event Licensor requests the removal of, or the restriction of access to, Restricted Content, Licensee shall cooperate, at its own expense, to effectuate the prompt removal or restriction of access to such Restricted Content and to take such other actions as Licensor may reasonably specify from time to time in order to comply with such laws, third-party rights and/or AOL's Uniform Policies consistently applied to all JV Affiliates.



(c) Implementation of Charges for Access to Content. Licensee agrees

----------------------------------------------- to pay when due all royalties, fees and other amounts owed to any Licensee Interactive Services Content provider for Content made available on the AOL Services that would not have been due in the absence of the access to and usage of such Content by Subscribers of such AOL Services and otherwise to comply with the obligations of Licensee under any applicable agreement with the Content provider. Likewise, Licensee shall have no obligation to pay any royalties, fees or other amounts due to any Content provider to any other AOL Service. Licensor shall have the right to implement applicable hourly or other charges for access to and usage of Content of a particular AOL Service by Subscribers of other AOL Services (including the Licensee Interactive Services), so long as such charges apply equally to all AOL Services, including the AOL-US Service and Licensee Interactive Services. As of the Effective Date, however, Licensor imposes no such charges.



2.7 Licensee Content. Subject to the terms and conditions of this

---------------- Agreement and the right of Interconnection between and among AOL Services pursuant to Section 2.5 of the AOL OLS Agreement, Licensee hereby grants to AOL and its Affiliates the non-transferable (except as expressly provided herein) right to access, and to grant to Subscribers to AOL Services the right to access, via Interconnection, substantially all Content available through the Licensee Interactive Services, including Licensee Content and other Content, but excluding Restricted Content. Notwithstanding the foregoing, if Licensor implements a charge between and among AOL Services (including the Licensee Interactive Services) for access to and usage of Content of each respective AOL Service pursuant to Section 2.5(c) above, then Licensee will be entitled to receive payments to the extent that its Licensee Interactive Services' Content is accessed by Subscribers of the other AOL Services.



2.8 Right to Sublicense. Licensee shall, subject to the approval of the

------------------- Board of Directors, have the right to sublicense Licensee's rights under Sections 2.1, 2.2, 2.3 and 4.1 of this Agreement as reasonably necessary to provide Licensee Interactive Services, including the development of Content for such services and the distribution of the Client Product to





Subscribers of such services and to Operating Entities that are established pursuant to the Certificate of Incorporation.



2.9 Rights to AOL-Branded Internet Portal Services.

----------------------------------------------



(a) If AOL or any of its Special Affiliates intends to offer any Internet Portal Service, then Licensee shall have the prior option, exercisable within six (6) months following notice of such intent from AOL, to offer such service in the Territory on an exclusive basis, subject to payment to AOL of [************************************************** *********************************]. If Licensee elects not to offer such service in the Territory or does not exercise such option within the six-month period, then AOL shall have the right to offer such service in the Territory directly or together with a third party (on financial terms not more favorable than those offered to Licensee), [**************************** **************************************************] for the use of the AOL or CompuServe name in the Territory; provided, however, that in no event shall AOL or its Special Affiliates be entitled to use the AOL or CompuServe name as provided above in connection with a Directly Competitive Service (as defined below). For avoidance of doubt, AOL and ODC shall have the right without any first offer or other obligations to Licensee, to provide a non-AOL-branded or non-CompuServe-branded Spanish and/or Portuguese language Internet Portal Service and which is targeted to end users residing in the Territory, but neither AOL or ODC shall have the right to Interconnect such service with any AOL-branded or CompuServe-branded Access Service. A "Directly Competitive Service" shall mean an online or Internet service, that may be but need not be an Access Service, having comprehensive Content, Communications Services, features and functions comparable to the existing AOL-US Service (e.g., Yahoo an
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