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Online Services Agreement

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EXHBIT 10.6





[*] - CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS WITH ASTERISKS, HAS 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 ONLINE SERVICES AGREEMENT



THIS AOL ONLINE SERVICES AGREEMENT (this "Agreement"), dated as of _________, 2000 (the "Effective Date"), is entered into by and between America Online, Inc., ("AOL" or "Service Provider"), a corporation organized under the laws of the state of Delaware, having its principal offices at 22000 AOL Way, Dulles, Virginia, USA 20166-9323, and America Online Latin America, Inc., a Delaware corporation (the "Company" or "Recipient"), having its principal offices at 6600 N. Andrews Avenue, Suite 500, Ft. Lauderdale, FL, USA 33309.



WITNESSETH:

----------



WHEREAS, Service Provider is engaged in the business of providing Interactive Services worldwide.



WHEREAS, the Company operates and/or markets and supports the Business in the Territory through certain operating entities owned by the Company, including Recipient.



WHEREAS, concurrent with the execution hereof, the Company and AOL have entered into the related AOL License Agreement (the "AOL License"), pursuant to which AOL has granted to the Company certain rights and licenses for conducting the Recipient Interactive Services. In connection therewith, and pursuant to the Related Agreements, AOL has agreed to extend to the Company certain services, including technical support, training and related services pertaining to AOL Services, that are necessary to Launch and operate the Recipient Interactive Services in the Territory, all as set forth in this Agreement.



NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties 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 used without definition shall have the meanings - - given in the AOL License. Unless the context clearly indicates otherwise, any term defined or used in the singular shall include the plural. Use of the term "include" or "including" shall be construed to mean "include without limitation" or "including without limitation", as applicable.





2. PROVISION OF CERTAIN ONLINE SERVICES. In connection with the AOL License, and subject to the Related Agreements, Service Provider shall provide Recipient with the services described in this Section 2 in order to facilitate the Launch and operation by Recipient of AOL-branded PC Access Services in the Territory. At such time that the Board of Directors approves the development and Launch of one or more additional Recipient Interactive Service(s) in particular country(s) in the Territory pursuant to the Company's Certificate of Incorporation, Recipient shall notify Service Provider in writing of such approval and identify the particular country(s) in the Territory and what Recipient Interactive Services are to be provided (such notice, the "Service Notice"), and Service Provider shall commence provision of the services described in this Section 2 in such countries and/or with respect to such additional Recipient Interactive Services.



2.1 Consistency of AOL Services. The parties acknowledge and agree

--------------------------- that it is necessary for Service Provider to maintain uniform standards governing all material facets of AOL Services in order to provide subscribers worldwide with high quality, cost effective and consistent levels of service, and to protect the reputation and goodwill associated with the AOL Services in the Interactive Services market. Accordingly, Service Provider shall provide Recipient with the services described herein in a manner consistent with such objectives.



2.2 Licensed Product Development Services.

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



(a) Launch Software. As promptly as practicable following the date

--------------- hereof, and pursuant to the terms and conditions of this Agreement, Service Provider shall provide Recipient with the launch software, in accordance with the requirements set forth in Attachment B (the "Launch Software"), to be used

------------ in connection with the Launch by Recipient of a PC Access Service in the country(s) in the Territory identified by Recipient as aforesaid. All Launch Software shall be deemed to be components of the Licensed Products. Recipient shall have the same license rights to the Launch Software as those rights granted to Recipient in Section 2 of the AOL License with respect to the Licensed Products. Recipient shall pay Service Provider for the localization of the Launch Software at MFN Rates. All payments under this Section 2.2(a) shall be made within twenty (20) Business Days following submission of quarterly invoices, which shall include a breakdown, on a time and material basis, in reasonable detail of the charges, in respect of the work carried out during the preceding quarter. Recipient shall pay Service Provider at MFN Rates for the internationalization or localization of post-Launch modifications to the Licensed Products in accordance with the process described in Section 2.2(d) below.



(b) New AOL Developments. Service Provider shall provide

--------------------- Recipient with New AOL Developments for the Recipient Interactive Services as described in this Section 2.2(b). At the beginning of each calendar quarter, Service Provider shall conduct a technology review and provide Recipient with Service Provider's New AOL Development intentions for that quarter with respect to the Recipient Interactive Services that Recipient is then providing. Recipient shall pay Service Provider at MFN Rates for any internationalization or localization required to implement New AOL Developments for such Recipient Interactive Services in accordance with the process described in Section 2.2(d) below. Recipient acknowledges and agrees that New AOL Developments shall be deemed to be Licensed Products under the AOL License. Recipient shall have the same license rights to the New AOL





Developments as those rights granted to Recipient in Section 2 of the AOL License with respect to the Licensed Products. Consistent with Service Provider's Uniform Policies regarding New AOL Developments and, subject to Section 2.2 of the AOL License, Service Provider shall exercise commercially reasonably efforts to retain and grant to Recipient all rights with respect to Third Party Product enhancements on the same terms as set forth in Section 2.2 in the AOL License.



(c) Requested Developments. Upon Recipient's request, and subject

---------------------- to the good faith agreement of Service Provider and Recipient in writing upon reasonable terms and conditions of such development, including commercially reasonable payment terms at MFN Rates, all in accordance with the process described in Section 2.2(d) below, Service Provider shall develop revisions, enhancements and/or modifications of the Licensed Products and provide other development services related to the Recipient Interactive Services that Recipient is then providing or in respect of which it has delivered a Service Notice ("Requested Developments"). Recipient acknowledges and agrees that Requested Developments shall be deemed to be Licensed Products. Recipient shall have the same license rights to the Requested Developments as those rights granted to Recipient in Section 2 of the AOL License with respect to the Licensed Products.



(d) Process for Developments. The process for internationalizing

------------------------ and localizing New AOL Developments and for requesting Requested Developments shall be conducted through a marketing requirements document ("MRD") developed by AOL's international product marketing group in conjunction with Recipient, containing reasonably sufficient information in order for Service Provider to make a technical assessment and to provide an initial estimate of the timetable and total pricing for completion of the development services. Service Provider shall negotiate in good faith with Recipient all reasonable MRDs, provided that Recipient acknowledges and agrees that Service Provider will not accept MRDs that in Service Provider's reasonable opinion, may compromise security or performance or otherwise do not comply with AOL's Uniform Policies. If Service Provider reasonably believes that an MRD would have such effect, Service Provider shall exercise commercially reasonable efforts to assist Recipient in developing an MRD that does not have such effect but that provides the functionality that Recipient desires. Service Provider and Recipient recognize that the level of information required in an MRD will vary according to the specified functionality, but must contain a sufficient level of information and detail for Service Provider to assess fully the nature and scope of the project and its technical feasibility. The parties acknowledge that Recipient may need to consult with Service Provider's management, technology and international staffs in order to develop the MRD. Upon written acceptance of an MRD by Service Provider, Service Provider shall provide the applicable development services in accordance with the terms and conditions of such MRD, including commercially reasonable payment terms at MFN Rates.



2.3 Training, Technical Support, Documentation and Additional Support

----------------------------------------------------------------- Services - --------

(a) Training and Technical Support.

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



(i) Scope. Service Provider shall provide Recipient with

----- the pre-Launch and post-Launch Training and Technical Support set forth in Attachment D with respect to PC Access Services and with appropriate pre-Launch and post-Launch Training and Technical





support as may be agreed by Service Provider and Recipient with respect to Wireless Access Services and TV Access Services in substantially the manner Service Provider is providing them in the United States after Recipient obtains the right to Launch such Services in the Territory. With respect to such Training and Technical Support, Service Provider reserves the right to amend Attachment D from time to time to permit Service Provider to make such - ------------ reasonable changes as are necessary for Service Provider to provide such items on a consistent worldwide basis; provided that any such amendment shall not increase the rates or expand the fee structure applicable to Recipient any more than such rates are increased or fee structure expanded with respect to other JV Affiliates consistent with AOL's Uniform Policies. Service Provider shall provide Recipient with prior notice of such amendments to Attachment D.

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



(ii) Exchange Program. Service Provider shall, upon the request of

---------------- Recipient and subject to Service Provider's reasonable discretion and the availability of its personnel, send qualified English-speaking employees from among Service Provider's Content production and technical personnel to Recipient's offices to assist and train Recipient's Trainees. During the time such exchange personnel participate in the aforementioned exchange program, (i) Service Provider shall pay all of their salary and standard Service Provider benefits, and (ii) Recipient shall either pay or reimburse Service Provider for all of their air travel, lodging, local transportation, meals, and other out-of- pocket expenses associated with such travel; provided that such expenses conform to Recipient's general and reasonable policies regarding expenses for its own employees and such arrangement is at least as favorable as any similar arrangement with any JV Affiliate, taking into account any reasonable differences in payment or reimbursement policies due to differences in location. Recipient shall also pay or reimburse Service Provider for reasonable incremental expenses incurred by such exchange personnel as a result of their relocation and travel, including increased cost of living, increased tax burden, or other factors attendant to relocating to a different country.



(iii) Contacts. Service Provider shall promptly after the

-------- Effective Date and as necessary from time to time thereafter provide Recipient with an up-to-date list of contact names and telephone numbers of the individuals providing Training and Technical Support.



(b) Documentation. The Documentation and Confidential Information

------------- identified in Attachment B of the AOL License shall be periodically updated by

------------ Service Provider. After a Service Notice and thereafter from time to time as necessary to reflect updates, Recipient will receive one (1) print and computer- readable copy of each final, finished release of such Documentation and Confidential Information in English as it becomes available.



(c) Licensed Product Support and Maintenance.

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



(i) Error Correction; Virus Deletion. Recipient shall promptly disclose to Service Provider any Errors or Viruses in the Licensed Products of which Recipient becomes aware. The minimum amount of information to be provided when disclosing an Error or a Virus is set forth in Attachment C. Service

------------- Provider shall, at no charge to Recipient, use commercially reasonable efforts to (i) correct any material, replicable Errors in Licensed Products, and (ii) use industry-standard software programs to detect material Viruses and to delete material Viruses in the Licensed Products. However, if Recipient is determined to have been either the source or direct conduit for the Error or Virus, Recipient shall promptly pay





Service Provider for such Error Correction or Virus Deletion, as the case may be, on a commercially reasonable time and materials basis at MFN Rates. Service Provider shall assign the same priority and apply the level of effort that Service Provider uses for similar priority Errors or Viruses for the AOL-US Service, as set forth in Attachment C, and will promptly on commercially

------------ reasonable terms and conditions (A) supply the Error Correction to Recipient when available and/or (B) perform the Virus Deletion. Service Provider shall have the right to amend from time to time the AOL Error Correction and/or Virus Deletion Policies set forth in Attachment C, respectively, if such amendment is

------------ made in connection with a change in AOL's worldwide Error Correction or Virus Deletion Policy, as the case may be, and applies substantially equally to all AOL Services, including the AOL-US Service. Service Provider shall provide Recipient with prior notice of such amendments.



(ii) Other Maintenance Terms. With respect to Third Party

----------------------- Products, Service Provider shall provide Recipient with all associated third- party support and maintenance rights, including error correction and/or deletion of Viruses, as applicable, to the extent that Service Provider may grant or pass through to Recipient such rights at no additional cost to Service Provider; provided, however, that Service Provider shall have no obligation to obtain such support and maintenance rights for Recipient other than to provide Recipient commercially reasonable assistance in obtaining maintenance service for Third Party Products at rates at least as favorable as those applicable to any JV Affiliate, subject to any reasonable difference in rates or cost due to location, usage or other reasonable factors that might impact the level and cost of support and maintenance. To the extent Recipient receives the right to use a Third Party Product and Service Provider pays the maintenance fees for such Product, Recipient shall promptly reimburse Service Provider for that percentage of such maintenance fees attributable to Recipient's use of that Third Party Product.



(d) Additional Support Services. Service Provider shall provide

--------------------------- Recipient additional support services relating to the Licensed Products at MFN Rates.



2.4 Host Computer Access and Operations.

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



(a) Access. Service Provider shall provide Recipient with Host

------ Computer Access as necessary to operate Recipient Interactive Services in a manner substantially similar to the AOL-US Services and Recipient shall compensate Service Provider for such access at MFN Rates.



(b) Information Provider Connection. Upon Recipient's request and at

------------------------------- Recipient's expense, Service Provider shall provide Recipient's Content providers with the capability to make a network connection to the AOL Services host system via direct TCP/IP or other mutually agreeable network connection for the purpose of permitting such providers to provide and manage Recipient Interactive Service Content with respect to PC Access Services and, if applicable, with respect to Wireless Access Services and TV Access Services after Recipient obtains the right to Launch such Services in the Territory. Recipient shall have the right to seek reimbursement from its Content providers for the cost of such network connections; provided, however, that Recipient shall remain primarily liable for such costs in any event.





(c) Operations. Subject to Section 2.4(a), Service Provider shall

---------- have the sole right within its complete discretion to control the operations of its computers providing Host Computer Access to Recipient. On the Effective Date, computers providing Host Computer Access for all AOL Services are located in the United States. Subject to approval by the Board of Directors, computers providing Host Computer Access for the Recipient Interactive Services may be located remotely within the Territory if technically and financially feasible, provided that: (i) such operations shall be subject to a remote host computer access technical plan to be developed by Service Provider, in consultation with Recipient and the Company, and (ii) Recipient and the Company shall compensate Service Provider for services in connection with the implementation and operation of any remote Host Computer Access at applicable MFN Rates.



2.5 Interconnection.

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



(a) AOL-branded Access Services Interconnection. With respect to

------------------------------------------- AOL-branded PC Access Services, and, following their Launch by Recipient, AOL- branded TV Access Services, AOL-branded Wireless Access Services and Internet Portal Services operated by Recipient, Service Provider shall provide Recipient with a non-exclusive Interconnection between the AOL Services and the AOL- branded Recipient Interactive Services. Likewise, with respect to PC Access Services, and, following their Launch by Recipient, TV Access Services, Wireless Access Services, and Internet Portal Services, Recipient shall provide, to such AOL Services providing such access, substantially comparable non-exclusive Interconnection to such AOL-branded Recipient Interactive Services. Both parties acknowledge that such Interconnection between and among the AOL Services, as well as access to each AOL Service's Content, shall be subject to the Related Agreements and any technical limitations of the Recipient Interactive Services which are not due to the failure of Service Provider to meet its obligations under this Agreement or the AOL License (e.g. a different operating system is required, as is the case with the AOL Service in Japan).



(b) Other AOL Services Interconnection.

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



(i) AOL-branded Internet Portal Services Interconnection.

---------------------------------------------------- Subject to and in accordance with the Related Agreements, if AOL is entitled to and offers an AOL-branded Internet Portal Service in the Territory, then AOL and its Affiliates shall have the right to Interconnect (subject to applicable limitations in agreements with third parties) such AOL-branded Internet Portal Service with: (A) any AOL-branded Access Services, and (B) any AOL-branded Internet Portal Services (to the extent offered by Recipient pursuant to Section 2.9(a) of the AOL License), in each case then being offered by Recipient. Specifically, in such event: (1) Recipient shall provide, to such AOL Services providing such access, substantially comparable non-exclusive Interconnection to such AOL-branded Recipient Interactive Services, and (2) Recipient shall be entitled to receive reasonable compensation for Interconnection in the amount of (y) an allocation of ongoing costs of running the applicable AOL-branded Interactive Service offered by Recipient reasonably allocable to such Interconnection plus (z) the amount that third parties pay for access to Content of the applicable Recipient Interactive Service offered by Recipient, if anything, to the extent that such Interconnection results in access to such Content.





(ii) License to Certain Recipient Content. If AOL and its

------------------------------------ Affiliates have the right to Interconnect to AOL-branded Interactive Services offered by Recipient in the Territory pursuant to paragraph (i) above, Recipient 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, Content available through any such Interconnected AOL-branded Interactive Services offered by Recipient, including access to Recipient Content and other Content, but excluding Restricted Content.



2.6 AOL Operating Standards. The Parties agree that Recipient

----------------------- shall exercise commercially reasonable efforts to implement and maintain reasonable operating standards, specifications and procedures ("AOL Operating Standards") as follows:



(a) As to each of the AOL Operating Standards set forth in Attachment E, Service Provider shall, with respect to PC Access Services, - ------------ prescribe, and Recipient shall implement and maintain, such AOL Operating Standards, provided that such AOL Operating Standards shall be applied to Recipient in a manner that is not less favorable to Recipient than the manner in which such AOL Operating Standards are applied to other JV Affiliates.



(b) As to other operating matters, such as sales, marketing, customer service, business development and Content programming, Service Provider shall provide advice to Recipient, to which Recipient shall give good faith consideration.



(c) Service Provider may provide Recipient with any changes to the AOL Operating Standards in writing from time to time and Recipient shall implement such changes to AOL Operating Standards in accordance with commercially reasonable schedules to the extent that such changes do not materially expand or modify the categories of standards described therein and do not unreasonably interfere with the operations of Recipient.



(d) For the avoidance of doubt, the Parties agree that (i) any standard, specification or procedure relating to interoperability of the AOL Services shall be conclusively deemed to be subject to subsection (a) above, and (ii) Recipient agrees not to adopt or implement any standard, specification or procedure relating to such interoperability without the prior approval of Service Provider, provided that Service Provider agrees to provide any changes or enhancements to the AOL Operating Standards in a commercially reasonable manner such that Recipient may implement such changes or enhancements without unreasonable interference with its operations.



(e) Service Provider and Recipient shall each designate one individual having appropriate qualifications to confer on a regular basis regarding AOL Operating Standards and their implementation and maintenance.



2.7 Rights of Operating Entities. Recipient may direct that the

---------------------------- services from Service Provider to which it is entitled hereunder are to be provided for the benefit of Operating Entities that are established pursuant to the Certificate of Incorporation. All such services provided for the benefit of Operating Entities hereunder shall be subject to all of the terms and conditions of this Agreement and the Related Agreements.





3. REPRESENTATIONS AND WARRANTIES AND RELATED MATTERS.



3.1 Service Provider. Service Provider represents and warrants to

---------------- Recipient that the execution, delivery and performance of this Agreement have been duly authorized by all necessary action of Service Provider and this Agreement is a valid and binding obligation of Service Provider, enforceable in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditor's rights generally and subject to the applicability of general principles of equity and principles of public policy.



3.2 Recipient. Recipient represents and warrants to Service Provider

--------- that the execution, delivery and performance of this Agreement have been duly authorized by all necessary action of Recipient and this Agreement is a valid and binding obligation of Recipient, enforceable in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditor's rights generally and subject to the applicability of general principles of equity and principles of public policy.



3.3 DISCLAIMER OF OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN

------------------------------ THIS SECTION 3, SERVICE PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER. SERVICE PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND TITLE.



3.4 LIMITATION OF LIABILITY. EXCEPT AS EXPRESSLY PROVIDED IN SECTION

----------------------- 3.5, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL OR SPECIAL DAMAGES, LOST PROFITS, LOST SAVINGS OR ANY OTHER CONSEQUENTIAL OR SIMILAR DAMAGES, REGARDLESS OF THE FORM OF ACTION, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT.



3.5 Indemnity.

---------



(a) Service Provider shall, at its expense, defend any action, suit or proceeding brought (other than by any shareholder of Recipient or any Affiliate of Recipient) against Recipient or any Affiliate thereof, to the extent it results from breach of a representation or warranty by Service Provider under Section 3.1 above and Service Provider shall indemnify and hold Recipient and/or any Affiliate of Recipient
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