SECOND AMENDED AND RESTATED LICENSE AGREEMENT



 


EXHIBIT 10.29




AOL Confidential



Confidential

SECOND AMENDED AND RESTATED LICENSE AND SERVICES AGREEMENT



     This Second Amended and Restated License and Services Agreement (this
“Agreement”) dated as of September 30, 2002 (the “Effective Date”) is between
America Online, Inc., a Delaware corporation, with offices at 22000 AOL Way,
Dulles, Virginia 20166 (“AOL”), and Viewpoint Corporation, a Delaware
corporation and successor in interest to MetaStream Corporation, with offices
at 498 Seventh Avenue, New York, N.Y. 10018 (“Viewpoint”). AOL and Viewpoint
may be referred to individually as a “Party” and collectively as the “Parties.”




INTRODUCTION



     The Parties entered into a License and Services Agreement, dated as of
March 28, 2000, and Amendment Number One to the License and Services Agreement
between America Online, Inc. and Viewpoint on June 21, 2001, under which, among
other things, Viewpoint provided to AOL certain software for AOL’s use,
distribution, and sublicensing in connection with the AOL Network. In
addition, the Parties entered into an Amended and Restated License and Services
Agreement on July 19, 2001, as amended on March 27, 2002. The Parties now wish
to amend and restate the agreement and broaden their relationship. The
relationship is further described below and is subject to the terms and
conditions set forth in this Agreement.



     The Parties have also entered into an Agreement for Consulting Services,
dated as of September 30, 2002 (the “Consulting Services Agreement”), under
which, among other things, Viewpoint will provide certain technology (the “UI
Technology”) and will provide digital content (the “UI Content”) for use by AOL
in the user interface for the client software used to access the AOL Service,
as well as updates and internationalized versions thereof. The Parties
anticipate that Viewpoint, AOL, or a third party (or parties) will create
additional UI Content for use by AOL in the user interface for the AOL Client
software. Any such UI Content created by Viewpoint will be so created under an
additional schedule(s) incorporated into the Consulting Services Agreement and
shall be deemed licensed under this Agreement.



     Defined terms used but not defined in the body of the Agreement shall have
the meanings ascribed to such terms in Exhibit A hereto.




1.     DELIVERY AND LICENSE OF THE LICENSED SOFTWARE



Viewpoint shall deliver the Licensed Software to AOL in accordance with this
Agreement.




2.     GRANT OF RIGHTS



2.1     Licenses.



(a)  Broadcast Licenses.





	 	(i)	 	General Broadcast License. Viewpoint hereby grants to AOL and its
Affiliates, for the Term (subject to Section 8.6), a worldwide,
irrevocable (except as set forth in Section 8.3), non-exclusive and
nontransferable (except as set forth in Section 13.9) license (the
“Broadcast License”) to use, reproduce, perform, display and transmit
(in any medium now known or hereafter devised) Viewpoint Content (and,
as necessary to enable this Broadcast License, the Viewpoint
Technology) from AOL Servers to any current or future Media Player
Software (or Component thereof). The Broadcast License will be enabled
by Broadcast Keys issued by Viewpoint that will reside on AOL Servers.
Viewpoint represents and warrants that it will
provide AOL with Broadcast Keys upon execution of this Agreement that
will not expire or “time out” (e.g. no watermarking or degradation) at
any time during the Term.



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	 	(ii)	 	Perpetual UI License. Viewpoint hereby grants to AOL and its
Affiliates a worldwide, perpetual, irrevocable (except as set forth in
Section 8.3), exclusive license (the “UI License”) to use, reproduce,
perform, display and transmit (in any medium now known or hereafter
devised) UI Content (and, as necessary to enable this UI License, the
Viewpoint Technology) created during the Term from AOL Servers to any
current or future Media Player Software (or component thereof).
	 
	 	(iii)	 	Viewpoint hereby grants to AOL and its Affiliates a worldwide,
non-exclusive and non-transferable license to use Broadcast Keys solely
for purposes of using, reproducing, performing, displaying, and
transmitting Viewpoint Content in accordance with either the (i)
General Broadcast License or (ii) Perpetual UI License, as the case may
be. Viewpoint represents and warrants that it will provide AOL with
Broadcast Keys upon execution of this Agreement that will not expire or
“time out” (e.g. no watermarking or degradation) at any time, even
after conclusion of the Term, pursuant to Section 2.1(a)(ii) above.
Viewpoint also represents that (A) it has developed a software
application (the “Key Generation Application”) that generates Broadcast
Keys, (B) that the attached Exhibit C sets forth an explanation of the
structure, operation, and functionality of the Broadcast Keys, (C) that
the Key Generation Application can be used, without modification or
other development work, to generate Broadcast Keys that will allow AOL
Servers to broadcast and enjoy the full rights of the Perpetual UI
License described above and that at all times the Broadcast Keys will
meet all of the requirements of this section (e.g., no “time out,”
watermarking or degradation in any manner), and (D) that the Key
Generation Application will be deposited in escrow within fifteen (15)
days of the Effective Date pursuant to AOL’s Preferred Beneficiary
Agreement with DSI, as amended and agreed by Viewpoint and AOL on
September 30, 2002, and any Updates to the Key Generation Application
will be promptly deposited pursuant to Section 2.3 below. Viewpoint
represents and warrants that the Desktop Themes functionality described
in Exhibit A, Schedule 1 to the Master Consulting Agreement (dated
September 30, 2002) between AOL and Viewpoint shall not use or require
the use of Broadcast Keys.



(b)  Authoring Tools. Viewpoint hereby agrees to provide AOL and its
Affiliates, for the Term of this Agreement, with a royalty-free, worldwide,
non-exclusive license to use the Authoring Tools and to reproduce the Authoring
Tools as necessary for use by AOL and its Affiliates. Viewpoint hereby also
agrees to provide AOL and its Affiliates, the right to sublicense, for the Term
of this Agreement, the Authoring Tools to entities that create and/or
distribute content and advertising through the AOL Network.



(c)  Media Player. Viewpoint hereby grants to AOL and its Affiliates a
worldwide, perpetual, irrevocable (except as set forth in Section 8.3),
non-exclusive, royalty-free, paid-up license to use, reproduce, distribute
(subject to Section 2.1(d)), display, perform, transmit, sublicense (e.g.,
grant AOL End-Users the right to use), and adapt the Media Player Software, as
AOL deems necessary in light of its business requirements (collectively, the
“Media Player Software License”). Without limiting the generality of the
foregoing, Viewpoint agrees that in connection with the foregoing Media Player
Software License, AOL shall have the right to distribute the Media Player
Software through any manner or means whatsoever, in AOL’s sole discretion,
including, without limitation, physical distribution with CD-ROMs containing
AOL client software or as a standalone electronic download from the AOL
Network, subject to the restrictions in Section 2.1(d) and this Agreement.
AOL shall be licensed for an unlimited quantity of licenses of the Media Player
Software as necessary to provide the Media Player Software to all AOL End Users
extant at the onset and during the Term of this Agreement, as well as for any
other usage of the Media Player Software deemed necessary by AOL. No fee shall
be due Viewpoint from AOL for the Media Player Software, regardless of the
quantity of Media Player Software used or deployed by AOL.



(d)  End User License. Viewpoint grants AOL the right to distribute and
sublicense the Media Player Software to AOL End-Users under terms and
conditions materially consistent with the terms and conditions contained in
AOL’s then current terms of service agreement, or materially consistent with
the terms and conditions that apply to such other AOL software that AOL may be licensing an
AOL End User contemporaneously with AOL’s sublicense of the Media Player
Software, at AOL’s discretion. For the avoidance of doubt, the Parties agree
that any rights granted by AOL to AOL End Users shall be perpetual,


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and shall
survive the expiration or earlier termination of this Agreement.
Alternatively, AOL may, at AOL’s option, sublicense the Media Player Software
subject to Viewpoint’s standard end user license agreement, which is available
from Viewpoint on request.



(e)  Ownership. Viewpoint retains ownership of all right, title and interest in
and to the Licensed Software, and reserves all rights not expressly granted.
Viewpoint retains no right, title, and interest in any Viewpoint Content
created by Viewpoint for AOL, including but not limited to the UI Content.



(f)  Subcontracting. AOL may use subcontractors to exercise any or all of its
rights granted to AOL under this Agreement in its sole discretion; provided,
however, that: (a) AOL shall ensure that any subcontractors comply with the
provisions of this Agreement and (b) AOL shall be liable for any action by such
subcontractors which, if done by AOL, would be a breach of this Agreement.



2.2     Software License Restrictions. The Licensed Software shall be provided to
AOL in object code version. Except as permitted pursuant to Section 2.3, AOL
shall not reverse engineer, decompile, or disassemble the Licensed Software,
except (1) to the extent that the foregoing restriction is void or not
enforceable under applicable law despite this restriction, or (2) as permitted
by Viewpoint.



2.3     Source Code Escrow. Viewpoint shall deposit a copy of the source code for
the Licensed Software with a commercial third party escrowee pursuant to the
terms of an escrow agreement among Viewpoint, AOL and the Escrowee in the form
of Exhibit E hereto. The escrow agreement shall provide that AOL shall be
entitled to receive a copy of the source code for the Licensed Software upon
the occurrence of any of the following release conditions: (a) a material
breach of this Agreement (including any breach of the support obligations set
forth in Exhibit B by Viewpoint) by Viewpoint which has not been timely cured,
(b) any bankruptcy filing by Viewpoint, (c) Viewpoint ceases its business
operations or (d) a Change of Control of Viewpoint. In any such event, the
Escrowee shall deliver the source code for the Licensed Software to AOL or its
designee. During the Term, Viewpoint shall deposit the latest version of the
source code for the Licensed Software with Escrowee promptly after every
material change in such software, including, without limitation, any and all
Updates. If the source code for the Media Player Software is released
pursuant to this Section 2.3, then the following license to AOL becomes
effective immediately upon such release: In addition to the rights granted
under Section 2.1 and Section 2.3, AOL and its Affiliates may use the source
code version of the Licensed Software and Broadcast-Related Software to provide
the support for AOL and AOL End Users of the Media Player Software, as AOL
reasonably deems necessary, as well as for such further development as AOL
chooses; the license to the source code for the purposes of support as
described in the foregoing shall be perpetual. The foregoing license is
subject to all of the other restrictions in this Agreement regarding the
Licensed Software.



2.4     Trademark License. AOL, its Affiliates and its channels of
distribution may use but are not required to use Viewpoint trademarks and logos
applicable to the Licensed Software in connection with the activities
contemplated under this Agreement. In the event AOL uses Viewpoint trademarks
or logos, AOL shall use good faith efforts to adhere to Viewpoint’s reasonable
trademark usage guidelines, which shall be provided to AOL after execution of
this Agreement, and which shall be subject to AOL’s reasonable approval.
Notwithstanding anything in this Agreement or in such trademark usage
guidelines, AOL shall be permitted at its sole discretion to co-brand the
Licensed Software with AOL trademarks and/or logos in addition to Viewpoint’s
trademarks and logos applicable to the Licensed Software; provided that AOL
does not (1) remove any trademark or copyright notices from the Licensed
Software, (2) attribute ownership or authorship of the Licensed Software to any
party other than Viewpoint, or (3) indicate that any party other than Viewpoint
is the source of the Licensed Software.



2.5     Distribution. AOL and its Affiliates have included the Media Player
Software in version 7.0 of the client software used to access the AOL Service
(“AOL 7.0”), the immediately subsequent major release of
such client software (the “Subsequent Version”), and shall use good faith
efforts to include the Media Player Software in the related internationalized
versions of AOL 7.0 and the Subsequent Version; provided however, that AOL and
its Affiliates shall not be required to include the Media Player Software in
specified internationalized versions for which AOL and its Affiliates
reasonably determines that Viewpoint is unable to adequately provide (or has
not adequately provided), at Viewpoint’s expense, technical support and local


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training necessary for AOL and its Affiliates to integrate the Media Player
Software with such internationalized client software in accordance with AOL’s
performance requirements and development deadlines and without the expenditure
of substantial additional resources. Thereafter during the Term, AOL and its
Affiliates shall use reasonable efforts to promptly distribute Updates to AOL
End Users utilizing such versions. Notwithstanding the foregoing, AOL shall
have no obligation to distribute the Media Player Software or any Updates, if
(i) the Media Player Software or Update does not comply with any term of this
Agreement (including, without limitation, Exhibit B), (ii) distribution of the
Media Player Software or Update would interfere with, degrade or otherwise
negatively impact the experience of AOL End Users using the AOL Network, (iii)
any Update contains over 15% more bits than the prior version of the Media
Player Software, (iv) the Media Player Software or Update could not be
seamlessly integrated into AOL’s client access software without AOL applying
substantial development or network resources, (v) the Media Player Software is
not comparable in terms of content degradation, transmission speed, scalability
and cost, to other generally available, market-leading multimedia formats, or
(vi) AOL determines in its sole discretion that such distribution with respect
to the Subsequent Version is contrary to the commercial best interests of AOL.
In addition, in the event any Update contains any new feature, functionality or
content that is competitive with any feature, functionality or content
distributed by AOL, AOL shall so notify Viewpoint, and Viewpoint shall promptly
thereafter provide AOL with a version of the Update to distribute that excludes
such competitive feature, functionality and content. Except as otherwise
expressly provided herein, AOL shall decide in its sole discretion any and all
placement and means of distribution, if any, of the Licensed Software. AOL
shall have the right to remove or disable the Licensed Software or any portion
thereof from the AOL Network (including, without limitation, from AOL 7.0 and
the Subsequent Version and other client access software), in the event
Viewpoint is in breach of any representation, warranty or obligation hereunder
or if, in AOL’s view, the Licensed Software (or any portion thereof) adversely
impacts the access or use of any AOL Network product or service by AOL End
Users.



2.6     AOL Look and Feel. Viewpoint acknowledges and agrees that AOL shall own
all right, title and interest in and to the elements of graphics, design,
organization, presentation, layout, user interface, navigation and stylistic
convention (including the digital implementations thereof), and the total
appearance and impression substantially formed by the combination, coordination
and interaction of such elements with Viewpoint Content, which are generally
associated with online areas contained within the AOL Network. AOL reserves
the right to redesign or modify the organization, structure, “look and feel”
and other elements of the AOL Network at its sole discretion at any time
without prior notice.



2.7     Documentation License. Viewpoint grants AOL a license to use the
Documentation (including the right to copy) as necessary to support its license
of the Media Player Software hereunder.



2.8     Compatibility. Viewpoint represents and warrants that any Update or new
version of the Media Player Software will have the capability of playing back
content encoded in any previous versions of Viewpoint’s encoding or decoding
formats. Before March 31, 2003, Viewpoint will not distribute any Updates or
Components to the Media Player Software in addition to or other than the (i)
version 3.11 of the Media Player Software previously delivered to AOL for
distribution with AOL Client Version 8.0 (which Viewpoint intends to
distribute concurrently under the label of version 3.12 (minus the tags, User
Experience Shell and Draw Anywhere)) with AOL’s distribution of the AOL Client
software Version 8.0), (ii) any Updates to the Media Player Software that are
necessary to address any error in the Media Player Software that causes an
important component or function that is commonly used to be unusable, that
causes a crash for a commonly used feature or function, in which commonly used
features are completely non-functioning, or that results in data loss or corruption on a widespread basis,
provided that such Update does not add any new feature or functionality.
Viewpoint hereby grants to AOL the right to elect, on or before
December 15, 2002, to require Viewpoint to develop a customized, exclusive
version of the Media Player Software (“Custom Player”) as further described in
Exhibit D hereto. If AOL so elects, (a) AOL shall provide written notice to
Viewpoint of its election on or before December 15, 2002, (b) AOL shall pay to
Viewpoint $250,000 concurrently upon execution by AOL of a detailed SOW
describing the Custom Player to be incorporated into the Consulting Services
Agreement, (c) AOL shall pay an additional $250,000 upon acceptance (as defined
in such detailed SOW) by AOL of the Custom Player, and (d) Viewpoint will not
distribute any Updates to the Media Player Software until such Custom Player is
accepted by AOL.



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Viewpoint will ensure that all Updates to and new versions of
the Media Player Software are compatible, consistent, and fully interoperable
with the version of the Media Player Software that AOL distributes with Version
8.0. Before releasing any Updates to the Viewpoint Media Player during the
Term, Viewpoint will provide AOL any Updates to the Viewpoint Media Player
thirty (30) days prior to general release thereof in order for AOL to perform
compatibility testing. Viewpoint will delay any scheduled distribution of an
Update or new version of the Media Player Software if such Update or new
version raises significant compatibility problems with Version 8.0.



3     MAINTENANCE AND TECHNICAL SUPPORT. AOL, in its sole discretion, may require
Viewpoint to perform the maintenance and support obligations set forth in
Sections 3.1, 3.2, and 3.3 over the periods and in exchange for the payments
set forth in Section 8.8.



3.1     Support of AOL. Upon AOL’s election as described in the first sentence of
this Section 3, Viewpoint shall:



(a)  comply with the Technical Specification attached hereto as Exhibit B;



(b)  provide technical support and training to staff members of AOL and its
Affiliates in a level sufficient to assist AOL to perform its obligations and
exercise its rights under this Agreement (e.g., encoding and distribution of
Viewpoint Content, integration of the Media Player Software with the AOL client
access software, distribution of the Media Player Software over the AOL
Network, providing customer support to AOL End-Users pursuant to Section 3.2,
and (during the first year after the Effective Date) fixing bugs related to the
UI Content). Such training shall occur at Viewpoint’s or AOL’s headquarters as
mutually determined on a case-by-case basis by the Parties. Viewpoint hereby
agrees that it will negotiate in good faith the possibility of providing
training to Affiliates at locations other than the Viewpoint’s or AOL’s
headquarters, at which time the Parties will agree on an agreeable allocation
of reasonable travel, lodging and similar expenses associated with providing
training at other locations; and



(c)  provide to AOL all Updates to the Licensed Software at no cost whatsoever
to AOL, its Affiliates or AOL End-Users, prior to the time that the Updates are
commercially available pursuant to Section 2.8. Viewpoint will use good faith,
commercially reasonable effort to release a major Update to the Media Player
Software and Authoring Tools at least once every twelve months during the Term.



3.2     End User Support. AOL shall generally provide support to AOL End Users
with respect to the Media Player Software, provided that, upon AOL’s election
as described in the first sentence of this Section 3, Viewpoint shall provide
AOL with second level support as necessary for AOL to provide professional
level support to its End-Users. Upon AOL’s election as described in the first
sentence of this Section 3, AOL may, on a case by case basis, direct its AOL
End Users directly to Viewpoint, and Viewpoint shall provide professional level
support to such AOL End Users, provided that AOL is otherwise generally
providing first level support to AOL End Users with respect to the Licensed
Software.



3.3     Content Creation Services. If AOL makes the election described in the
first sentence of this Section 3 above, Viewpoint will grant to AOL the payment
credits set forth in Section 8.8 to be applied towards digital content creation
services designated by AOL.



3.4     Quality Assurance Testing. AOL may, at its option, perform quality
assurance testing on the Licensed Software.




4.     ADDITIONAL TECHNOLOGY



During the Term, in the event AOL elects to license additional Viewpoint
technology including, but not limited to, any additional Viewpoint technology
relating to the use of Viewpoint Content on any platform (such as AOL TV) not
otherwise made available by Viewpoint on a commercial basis (collectively, the
“Additional Technology”), the Parties shall mutually agree on the terms and
conditions pursuant to which Viewpoint shall provide such Additional Technology
to AOL; provided, however, that in the event that any fees are due for such
Additional Technology, then any such fees associated with such Additional


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Technology shall be no less favorable than the fees paid by any other Viewpoint
customer with respect to technology having a license scope and usage similar to
the Additional Technology. If the Additional Technology results in a
modification or enhancement to the Media Player Software, the Media Player
Software License granted to AOL in Section 2.1(c) shall include the Media
Player as so modified or enhanced. Notwithstanding anything to the contrary
set forth in this Agreement, if, during the Term, AOL engages Viewpoint to
develop and provide to AOL technology which represents an extension of the
Media Player Software for use on a PC platform, including but not limited to
such extensions comprised of Components to the Media Player Software created
solely for the benefit of AOL and not intended for general distribution,
license rights thereto shall be deemed to covered by payments made under this
Agreement.




5.     Reserved.




6.     Representations and Warranties.



6.1     Mutual. Each Party represents and warrants to the other Party that: (i)
such Party has the full corporate right, power and authority to enter into this
Agreement, to grant the licenses granted hereunder and to perform the acts
required of it hereunder; (ii) the execution of this Agreement by such Party,
and the performance by such Party of its obligations and duties hereunder, do
not and will not violate any agreement to which such Party is a party or by
which it is otherwise bound; and (iii) when executed and delivered by such
Party, this Agreement will constitute the legal, valid and binding obligation
of such Party, enforceable against such Party in accordance with its terms.



6.2     By Viewpoint. Viewpoint additionally represents and warrants that: (i) use
of the Licensed Software in accordance with this Agreement does not and will
not infringe on or violate any copyright, trademark, trade secret, patent,
rights of publicity, moral rights or any other third party rights; (ii) the
Licensed Software shall not violate any applicable law or regulation or include
any unlawful matter or material; (iii) Viewpoint has free, good and clear title
to all Licensed Software which may be supplied by Viewpoint under this
Agreement, which title shall be free and clear of any and all liens,
encumbrances, claims or litigation, whether pending or threatened; (iv)
Viewpoint has obtained all authorizations, approvals, consents, licenses,
permits, certificates and all other rights and permissions necessary for it to
perform under this Agreement and grant the licenses and rights hereunder to
AOL; (v) the Licensed Software will function, in all material respects, in
accordance with the Documentation; (vi) the Licensed Software shall not contain
any defects in material, including without limitation, any back door, time
bomb, drop dead device or other software routine designed to disable a computer
program (either automatically with the passage of time or under the control of
a person other than AOL), or any virus, Trojan horse, worm or other software
routine designed to permit unauthorized access or to erase or to otherwise harm
software, hardware or data; and (vii) the Licensed Software will perform in
accordance with the foregoing performance warranty prior to, during and (to the
extent permitted by the system clock(s) in the operating
system(s) on which the Licensed Software are being run) after the calendar year
2000 A.D., and the Licensed Software shall perform during each such period of
time without any material error specifically caused by date functionality in
general or date functionality as it relates to data which represents or
references different centuries or more than one century. The warranties in
subsection (v) and (vi) above apply for twelve (12) months after delivery of
the Licensed Software, and shall continue to apply to each delivered Update to
each product in the Licensed Software, from the date that such Update is
received by AOL. All other warranties specified in this subsection shall be
perpetual in nature.



6.3     Remedies. Viewpoint shall promptly repair or replace any nonconforming
Licensed Software, and shall bear the expenses associated with such repair or
replacement on the AOL Network. Without exclusivity, Viewpoint shall be
responsible for the shipping and delivery charges involved in returning
Licensed Software to Viewpoint, as well as for such charges in returning
repaired or replacement Licensed Software to AOL.



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GENERAL TERMS




7.     LIMITATION OF LIABILITY; DISCLAIMER



7.1     Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE
OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY
DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES), ARISING FROM BREACH OF THIS AGREEMENT OR THE USE OF OR INABILITY TO
USE THE AOL NETWORK OR LICENSED SOFTWARE, SUCH AS, BUT NOT LIMITED TO, LOSS OF
REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY, “DISCLAIMED
DAMAGES”); PROVIDED THAT VIEWPOINT SHALL REMAIN LIABLE TO AOL TO THE EXTENT ANY
DISCLAIMED DAMAGES ARE AWARDED TO A THIRD PARTY OR INCLUDED IN A SETTLEMENT AND
ARE SUBJECT TO INDEMNIFICATION BELOW. AOL SHALL NOT BE LIABLE TO VIEWPOINT
WITH RESPECT TO THE LICENSED SOFTWARE FOR ANY AMOUNT IN EXCESS OF THE GREATER
OF (A) THE AGGREGATE AMOUNTS PAYABLE HEREUNDER IN THE YEAR IN WHICH THE EVENT
GIVING RISE TO SUCH LIABILITY OCCURRED OR (B) $100,000.



7.2     No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AOL NETWORK OR
THE LICENSED SOFTWARE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF
DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, AOL SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING THE PROFITABILITY
OF AOL NETWORK, ANY BENEFIT VIEWPOINT MIGHT OBTAIN FROM INCLUDING THE LICENSED
SOFTWARE OR ANY PORTION THEREOF WITHIN THE AOL NETWORK AND (III) THE
FUNCTIONALITY, PERFORMANCE OR OPERATION OF THE AOL NETWORK.




8.     ERM, RENEWAL, TERMINATION, FEES



8.1     Term. Unless earlier terminated as set forth herein, the initial term of
this Agreement will begin on the Effective Date and continue through July 19,
2004 at 12 p.m. midnight, Eastern Standard Time (the “Initial Term”).



8.2     Renewal. Upon conclusion of the Initial Term of this Agreement, AOL will
have the right, in its sole discretion, to renew the Agreement for up to three
(3) successive one (1) year renewal terms (each a “Renewal Term” and together
with the Initial Term, the “Term”). A Renewal Term shall automatically
commence following the expiration of the Initial Term (or prior Renewal Term,
as the case may be) unless AOL gives at least thirty (30) days’ written notice
to Viewpoint prior to the end of the Initial Term or any Renewal Term, as the
case may be, that it has determined in its discretion not to renew the
Agreement.



8.3.     Termination for Breach. Except as expressly provided elsewhere in this
Agreement, either Party may terminate this Agreement at any time in the event
of a material breach of the Agreement by the other Party which remains uncured
after thirty (30) days written notice thereof to the other Party.
Notwithstanding the foregoing, only if AOL materially breaches and fails to
cure its obligations under Section 8.7 or 12 may Viewpoint terminate this
Agreement.



8.4.     Termination for Bankruptcy/Insolvency. 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


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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.



8.5     Change of Control. AOL may terminate this Agreement upon thirty (30) days
prior written notice to Viewpoint in the event of any Change of Control of
Viewpoint.



8.6     Effect of Expiration or Termination. For greater certainty between the
Parties, it is understood that the Media Player License and UI License granted
hereunder by Viewpoint are perpetual in nature but that the Broadcast License
granted hereunder by Viewpoint is only for the Term; provided, however, that if
the Agreement is terminated by AOL pursuant to Section 8.3 or 8.4 the Broadcast
License hereunder shall also be perpetual. It is also understood that the UI
License only extends to UI Content created during the Term. In addition,
sublicenses granted to AOL End Users hereunder shall survive cancellation or
termination of this Agreement.




8.7     License Fees.





	 	(a)	 	(i) The license fee for the period commencing on July 19, 2001 and
ending on July 19, 2004 is $8,325,000 (the “License Fee”). The parties
acknowledge and agree that AOL has previously paid $6,325,000 of the
License Fee. AOL shall pay the remaining $2,000,000 of the Initial
Term Fee as follows:





	 	a.	 	$500,000 on or before September 30, 2002;
	 
	 	b.	 	$500,000 on or before December 23, 2002; and
	 
	 	c.	 	$1,000,000 on or before June 23, 2003.
	 
	 	(ii)	 	For the license granted to AOL in Section 2.1 (a) for
the first one year Renewal Term (if any) commencing on July 20,
2004 and ending on July 19, 2005, AOL shall pay $2,000,000 to
Viewpoint on or before June 30, 2004.
	 
	 	(iii)	 	For the license granted to AOL in Section 2.1(a) for
the second one year Renewal Term (if any), AOL shall pay no more
than $4,500,000 to Viewpoint on or before June 30, 2005 (subject
to reduction pursuant to Section 8.7(b) below).
	 
	 	(iv)	 	For the license granted to AOL in Section 2.1(a) for
the third one year Renewal Term (if any), AOL shall pay no more
than $5,500,000 to Viewpoint or before June 30, 2006 (subject to
reduction pursuant to Section 8.7(b) below).





	 	(b)	 	MFN. The license fees payable by AOL during the second and third
Renewal Terms and, if AOL and Viewpoint determine to enter into an
extension of this Agreement beyond the third Renewal Term, the license
fees payable by AOL for a period of up to two years following the third
Renewal Term shall be no greater than the license fees paid to
Viewpoint by any third party with respect to a broadcast license having
a scope similar to the license granted hereunder and an expected usage
by such third party similar to the expected usage by AOL of the
Broadcast License.



8.8     Maintenance and Support Fees. The parties acknowledge and agree that AOL
has elected to require and has paid $625,000 to Viewpoint for performance of
the maintenance and support obligations set forth in Sections 3.1, 3.2, and 3.3
for the period from March 27, 2002 through June 30, 2003. If AOL elects to
require Viewpoint to perform the maintenance and support obligations set forth
in Section 3.1, 3.2, and 3.3 for any annual period commencing on or after June
30, 2003 and during which the Agreement is in effect (including Renewal Terms
(if any)), (x) AOL shall notify Viewpoint of its election to do so by June
20th of the relevant annual period, (y) AOL shall pay to Viewpoint a fee of
$500,000 on or before the first day of such annual period, and (z) Viewpoint
shall grant to AOL a payment credit of $100,000 for Production Services
performed over the relevant annual period.



8







 



AOL Confidential

     8.8(a).     After July 30, 2003, upon annual election by AOL in its
discretion, Viewpoint will perform maintenance, integration support for future
versions of the client software distributed under the AOL brand, bug fixes,
and/or modifications (“Maintenance”) to the UI Content delivered to AOL by
Viewpoint for $300,000 each one-year period so elected by AOL, payable to
Viewpoint thirty (30) days after such election.




9.     INDEMNITY



Viewpoint hereby agrees to indemnify, defend and hold harmless AOL and the
officers, directors, agents, Affiliates, distributors, franchises and employees
of AOL from and against all claims, actions, losses, liabilities, expenses,
damages and costs (including, without limitation, reasonable attorneys’ fees)
that may at any time be assessed against or incurred by any of them by reason
of any third party claims, suits or proceedings: (a) for libel, defamation,
violation of right of privacy or publicity, patent infringement, copyright
infringement, trademark infringement or other infringement of any third party
right, fraud, false advertising, misrepresentation, product liability or
violation of any law, statute, ordinance, rule or regulation throughout the
world in connection with the Licensed Software; (b) arising out of any material
breach by Viewpoint of any duty, representation, or warranty under this
Agreement; or (c) relating to any contaminated file, virus, worm or Trojan
horse originating from the Licensed Software. AOL will notify Viewpoint of any
claim, action or demand (an “Action”) for which indemnity is claimed within ten
(10) days of receipt of written notice of such Action, and will give Viewpoint
control of the defense and settlement of the claim, action or allegation.
Viewpoint’s counsel defending such Action shall be subject to AOL’s prior
written approval. AOL reserves the right to participate fully in and assume
joint control of the defense of any Action, at its own cost and expense.
Settlement of any Action shall be subject to AOL’s prior written approval.




10.     SOLICITATION



During the Term of the Agreement, Viewpoint will not use the AOL Network
(including, without limitation, the e-mail networks contained therein) to
solicit AOL Members on behalf of another Interactive Service. More generally,
Viewpoint will not send unsolicited, commercial e-mail (i.e., “spam”) or other
online communications through or into AOL’s products or services, absent a
Prior Business Relationship. For purposes of this Agreement, a “Prior Business
Relationship” will mean that the AOL Member to whom commercial e-mail or other
online communication is being sent has voluntarily either (i) engaged in a
transaction with Viewpoint or (ii) provided information to Viewpoint through a
contest, registration, or other communication, which included clear notice to
the AOL Member that the information provided could result in commercial e-mail
or other online communication being sent to that AOL Member by Viewpoint or its
agents. Any commercial e-mail or other online communications to AOL Members
which are otherwise permitted hereunder, will (a) include a prominent and easy
means to “opt-out” of receiving any future commercial communications from
Viewpoint, and (b) shall also be subject to AOL’s then-standard restrictions on
distribution of bulk e-mail (e.g., related to the time and manner in which such
e-mail can be distributed through or into the AOL product or service in
question).




11.     PROMOTIONAL MATERIALS/PRESS RELEASES



Neither party shall publish or release any press releases, public announcement
or other promotional materials related to the transactions contemplated
hereunder and/or referencing this Agreement, the other Party and/or its trade
names, trademarks, or service marks without the prior written consent of the
other party. Notwithstanding the foregoing, (a) AOL may, in its sole
discretion, include Viewpoint in an initial press release and/or make other
public announcements or include Viewpoint in other activities concerning
the features and functionality of the AOL Network, and (b) Viewpoint may issue
a press release as reasonably required to comply with the laws, regulations,
and rules of the U.S. Securities and Exchange Commission, upon prior approval
by AOL, which shall not be unreasonably withheld or delayed.



9







 



AOL Confidential


12.     CONFIDENTIAL INFORMATION



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 three years following expiration or termination
of this Agreement, to prevent the duplication or disclosure of Confidential
Information of the other Party, other than by or to its employees or agents who
must have access to such Confidential Information to perform such Party’s
obligations hereunder, who will each agree to comply with this Section.
Notwithstanding the foregoing, either Party may issue a press release or other
disclosure containing Confidential Information without the consent of the other
Party, to the extent such disclosure is required by law, rule, regulation or
government or court order. In such event, the disclosing Party will provide,
if reasonably possible, at least five (5) business days prior written notice of
such proposed disclosure to the other Party. Further, in the event such
disclosure is required of either Party under the laws, rules or regulations of
the Securities and Exchange Commission or any other applicable governing body,
such Party will (i) redact mutually agreed-upon portions of this Agreement to
the fullest extent permitted under applicable laws, rules and regulations and
(ii) submit a request to such governing body that such portions and other
provisions of this Agreement receive confidential treatment under the laws,
rules and regulations of the Securities and Exchange Commission or otherwise be
held in the strictest confidence to the fullest extent permitted under the
laws, rules or regulations of any other applicable governing body. For
purposes of this Agreement, “Confidential Information” shall mean: any
information relating to or disclosed in the course of the 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, AOL End-Users, AOL Broadband Service
registration information, 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” will 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.



13.     PRIVACY. Viewpoint will not directly or indirectly gather, use, or deliver
any data from the AOL Network and/or AOL End Users during the Initial Term or
any Renewal Term of this Agreement. Viewpoint shall not deliver to AOL any
data in contravention of any applicable law or any applicable user privacy
policy, including but not limited to an AOL privacy policy.




14.     GENERAL



14.1     Excuse. Neither Party will be liable for, or be considered in breach of
or default under 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.



14.2     Notice. Any notice, approval, request, authorization, direction or other
communication under this Agreement will be given in writing and will be deemed
to have been delivered and given for all purposes (i) on the delivery date if
delivered by confirmed facsimile; (ii) on the delivery date if delivered
personally to the Party to whom the same is directed; (iii) one business day
after deposit with a commercial overnight carrier, with written verification of
receipt; or (iv) five business days after the mailing date, whether or not
actually received, if sent by U.S. mail, return receipt requested, postage and
charges prepaid, or any other means of rapid mail delivery for which a receipt
is available. In the case of AOL, such notice will be provided to both the
Senior Vice President for Business Affairs (fax no. 703-265-1206) and the
Deputy General Counsel (fax no. 703-265-1105), each at the address of AOL set
forth in the first paragraph of this Agreement. In the case of Viewpoint, such
notice will be provided to both the Chief Executive Officer (fax no.
212-201-0846) and the General Counsel (fax no. 212-201-0801) each at the
address of Viewpoint set forth in the first paragraph of this Agreement.



14.3     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 will not be construed as a


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AOL Confidential



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 will be
and remain in full force and effect.



14.4     Return of Information. Upon the expiration or termination of this
Agreement, each Party will, upon the written request of the other Party, return
or destroy (at the option of the Party receiving the request) all Confidential
Information specified by the other Party.



14.5     Survival. Sections 2.1(a)(ii and iii), 2.1(c)-(e) (unless termination is
due to breach by AOL in accordance with Section 8.3), 2.2, 2.3, 6, 7, 8.6, 9,
10, 12, 13 and 14 of the Agreement will survive the completion, expiration,
termination or cancellation of this Agreement.



14.6     Entire Agreement. This Agreement sets forth the entire agreement and
supersedes any and all prior agreements of the Parties with respect to the
transactions set forth herein. Neither Party will be bound by, and each Party
specifically objects to, any term, condition or other provision which is
different from or in addition to the provisions of this Agreement (whether or
not it would materially alter this Agreement) and which is proffered by the
other Party in any correspondence or other document, unless the Party to be
bound thereby specifically agrees to such provision in writing.



14.7     Amendment. No change, amendment or modification of any provision of this
Agreement will be valid unless set forth in a written instrument signed by each
Party, by an executive or officer authorized to bind such Party.



14.8     Further Assurances. Each Party will take such action (including, but not
limited to, the execution, acknowledgment and delivery of documents) as may
reasonably be requested by the other Party for the implementation or continuing
performance of this Agreement.



14.9     Assignment. Viewpoint will not assign this Agreement or any right,
interest or benefit under this Agreement without the prior written consent of
AOL. Notwithstanding the foregoing, but subject to Section 8.5, this Agreement
may be assumed by any entity that succeeds Viewpoint as a result of a Change of
Control. Subject to the foregoing, this Agreement will be fully binding upon,
inure to the benefit of and be enforceable by the Parties hereto and their
respective successors and assigns.



14.10     Construction; Severability. In the event that any provision of this
Agreement conflicts with the law under which this Agreement is to be construed
or if any such provision is held invalid by a court with jurisdiction over the
Parties to this Agreement, (i) such provision will be deemed to be restated to
reflect as nearly as possible the original intentions of the Parties in
accordance with applicable law, and (ii) the remaining terms, provisions,
covenants and restrictions of this Agreement will remain in full force and
effect.



14.11     Remedies. Except where otherwise specified, the rights and remedies
granted to a Party under this Agreement are cumulative and in addition to, and
not in lieu of, any other rights or remedies which the Party may possess at law
or in equity; provided that, in connection with any dispute hereunder,
Viewpoint will be not entitled to offset any amounts that it claims to be due
and payable from AOL against amounts otherwise payable by Viewpoint to AOL.



14.12     Governing Law. This Agreement will be interpreted, construed and
enforced in all respects in accordance with the laws of the Commonwealth of
Virginia except for its conflicts of laws principles.



14.13     Export Controls. Viewpoint shall be solely responsible for obtaining any
and all necessary approvals, registrations, certifications and other necessary
documentation for the international sale and export/import of the Licensed
Software. Viewpoint shall keep AOL informed at all times during the term of
this Agreement as to the export/import status of the Licensed Software.



14.14     Headings. The captions and headings used in this Agreement are inserted
for convenience only and will not affect the meaning or interpretation of this
Agreement.



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AOL Confidential


14.15     Counterparts. This Agreement may be executed in counterparts, each of
which will be deemed an original and all of which together will constitute one
and the same document.



14.16     Insolvency. All rights and licenses granted under or pursuant to this
Agreement by Viewpoint to AOL with respect to the Licensed Software and related
Documentation are, and shall otherwise be deemed to be, for purposes of §
365(n) of Title 11 of the United States Code (the “Bankruptcy Code”), licenses
of rights to “intellectual property” as defined under § 101 of the Bankruptcy
Code. The parties agree that if AOL does not terminate this Agreement pursuant
to Section 8 and its subparts (“Term, Renewal, Termination, Fees”), AOL, as a
licensee of such rights and licenses, shall retain and may fully exercise,
provided it abides by the terms of this Agreement, all of its rights and
elections under the Bankruptcy Code, including without limitation any and all
rights to Updates to the Licensed Software and whether such Updates arise prior
or subsequent to the commencement of a case under the Bankruptcy Code. The
parties further agree that, in the event that any proceeding shall be
instituted by or against Viewpoint seeking to adjudicate it bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking an entry of an order for relief or the appointment of a receiver,
trustee or other similar official for it or any substantial part of its
property, or Viewpoint shall take any action to authorize any of the foregoing
actions (each a “Proceeding”), AOL shall have the right, in the event it has
not terminated this Agreement pursuant hereto, to retain and enforce its rights
under this Agreement including, but not limited to, the following rights
(provided it abides by the terms of this Agreement): the right to continue to
use the Licensed Software and all Updates and all related Documentation and
other supporting material related thereto, where so provided and in accordance
with the terms and conditions of this Agreement.



     IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.




	 	 	 	 	 
	AMERICA ONLINE, INC	 	
VIEWPOINT CORPORATION
	 
	By:	          /s/  Gio Hunt	 	By:	          /s/  Robert E. Rice
	 	
	 	 	


	 
	Print Name: Gio Hunt	 	
Print Name: Robert E. Rice
	 
	Title: SVP, Technology Business Development	 	
Title: President and CEO
	 
	Date: September 30, 2002	 	
Date: September 30, 2002



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	 	EXHIBIT A
	 
	 	Definitions



Affiliate. (a) Any agent, distributor or franchisee of AOL, (b) an entity that
directly or indirectly controls, is controlled by or is under common control
with AOL, including for the sake of clarity (but not limited to) any entity
under the direct or indirect control of AOL Time Warner Inc. (“Affiliate”), or
(c) an entity in which AOL owns directly or indirectly at least twenty percent
(20%) of the voting, equity or equivalent interest and in which AOL exercises
some other indicia of control. For purposes of this provision, “control” means
ownership directly or indirectly of more than fifty percent (50%) of the
voting, equity or equivalent interest in an entity; and “other indicia of
control” means that an entity (i) operates principally under a brand (trademark
or trade name) owned or controlled by AOL or a Affiliate or (ii) has obtained a
technology license from AOL or a Affiliate to provide a substantial portion of
the infrastructure or functionality of such entity’s services.



AOL Client. Any client software (in a client/server software model) owned,
distributed, or authorized to be distributed by AOL or its Affiliates worldwide
under the AOL, Netscape, or Compuserve brands (as set forth in Exhibit B,
Section 3.9) and any new versions, upgrades, or updates thereto.



AOL End User. Any user of any AOL Network product or service.



AOL Network. (i) The America Online branded US narrowband service (“AOL
Service”) and (ii) any other product or service owned, operated, distributed or
authorized to be distributed by AOL or its Affiliates worldwide in which
content, communications services and/or transactions are provided to members,
subscribers and/or registrants through the use of any protocols, standards,
platforms, media or other methodology now or hereafter existing (including the
Internet and similar protocols, standards and platforms) from host server
computers or otherwise, including, without limitation, via telephone, ISDN,
DSL, cable, fiber optics, satellite, wireless, television or other type of
public or private network or other device.



AOL Rainman Environment. AOL’s proprietary technology for publishing content
on and through the AOL Network, and any updates, upgrades, new versions, or
successor technology.



AOL Server. The servers or host complexes (or any portion thereof) owned or
operated by or on behalf of AOL or its Affiliates (or third parties serving
advertising or promotions for AOL on the AOL Network) in order to provide AOL
Network services to AOL End Users.



Authoring Tools. The Viewpoint software used to package, encode and/or create
Viewpoint and/or UI Content in a format that can be viewed using the Media
Player Software.



Broadcast Key. As defined more completely in Exhibit C hereto, a Viewpoint
broadcast key file for the platforms hereto which authenticates Viewpoint
Content in such manner that Viewpoint Content can be viewed by Media Player
Software without image degradation due to watermarking or other digital rights
management mechanism.



Broadcast-Related Software. All software, databases and documentation
necessary to ensure that the Broadcast Keys remain valid and enable AOL to
fully exercise its Broadcast License and UI License rights hereunder.



Change of Control. (a) The consummation of a merger or consolidation or sale
or other disposition of substantially all of the assets of a party or (b) the
acquisition through one or more related transactions by any individual, entity
or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1933, 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


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AOL Confidential



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.



[*]



Documentation. Viewpoint’s manuals and other documentation for the Licensed
Software (or portion thereof) as provided by Viewpoint to AOL (e.g.,
administrative guides and data sheets), whether in print or electronic form.
References to the Licensed Software in the Agreement shall be deemed to
generally include the Documentation, as applicable.



[*]



GPF (General Protection Fault). The name of an event, or crash, due to hardware
error, software error, divide by zero error or invalid operation code, which
causes a third party application, AOL client, or operating system to abnormally
terminate or produce an error message indicating that the system is generally
unable to continue normal operation.



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 numerous interactive commerce categories (e.g.,
an online mall or other leading online commerce site); (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), including without limitation, greeting cards.



Licensed Software. The Media Player Software, Broadcast Keys,
Broadcast-Related Software and Authoring Tools. Licensed Software shall
include, without limitation, the Documentation for such software, and any and
all Updates thereto.



Media Player Software. The Viewpoint media player plug-in software that
interprets and interactively displays digital content in the Viewpoint format
for the platforms described in Section 3.9 of Exhibit B hereto, in object code
format that Viewpoint makes commercially available, in any version and
including all Updates thereto. The Media Player Software consists of the
Viewpoint Hub and several Components and all Updates thereto.



Narrowband Speech Codec. An Update to the Media Player Software that Viewpoint
intends to make commercially available and that enables the playback of spoken
voice and simple sound effects.



Updates. Any and all updates, bug fixes, error corrections, enhancements,
upgrades, modifications or new versions or releases of the Licensed Software
(or portions thereof) that are made available during the Term. “Updates”
excludes any Additional Technology (as defined in Section 4).



[*]





	*	 	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.



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AOL Confidential




[*]



Term. The period of the Initial Term and any Renewal Term.



UI Content. Any Viewpoint Content that appears as part of the AOL Client or
AOL Client features existing now or hereafter created during the Term of the
Agreement or any extension thereof, excluding third-party advertising. For the
sake of clarity, all Broadcast Keys provided to AOL for UI Content will not
expire or “time out” (e.g. no watermarking or degradation) at any time, even
after conclusion of the Term.



Viewpoint Technology. Any technology in existence now (including technology
licensed under previous iterations of this Agreement) or created during the
Term of the Agreement or any extension thereof which is necessary for AOL to
enjoy the full benefit of the licenses granted in this Agreement.



Viewpoint Content. Any content that has been packaged and/or encoded in the
Viewpoint format so that, when displayed and transmitted from a server on which
a Broadcast Key has been installed, it can be viewed with the Media Player
Software without image degradation due to watermarking or other digital rights
management mechanism. For the sake of clarity, all Broadcast Keys provided to
AOL for UI Content will not expire or “time out” (e.g. no watermarking or
degradation) at any time.



Viewpoint Hub. The Viewpoint software that manages the authentication,
retrieval, installation and automatic update of other software, including the
Viewpoint Hub itself and Components, within a cross-platform, cross-browser
framework. When deployed, the Viewpoint Hub is configured with a list of
trusted servers and Broadcast Keys.





	*	 	Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions.





15








 




AOL Confidential




EXHIBIT B




Technical Specification





	1.	 	Scope
	 
	 	 	This document provides detailed technical requirements for an AOL
client-hosted multimedia player that utilizes future versions of the SDK
and ActiveX control, and bug reporting and response requirements relating
to this Agreement.
	 
	2.	 	Applicable Documents
	 
	 	 	The following documents are applicable to the extent specified herein:
	 
	3.	 	Performance
	 
	3.1	 	Backward compatibility of SDK’s and ActiveX interfaces
	 
	 	 	With respect to operating systems supported by Media Player Software at
any point during the Term, all API’s and ActiveX interfaces shall be
maintained for backward compatibility with respect to any such Media
Player Software supported operating systems.
	 
	3.2	 	[*]
	 
	3.3	 	File size of the Installer
	 
	 	 	Viewpoint shall provide a basic installer package to AOL that maintains a
consistent feature set across versions. The initial Viewpoint installer
package shall be no larger than 2.25 MB. In the event that a new
installer package exceeds the size of the previous installer package by
5%, Viewpoint will notify AOL as to this fact as soon as Viewpoint
becomes reasonably aware of the increase in size, and shall discuss with
AOL the implications of such size increase and manner in which to address
any negative impacts associated with such size increase. Any installer
and contents produced by Viewpoint will include this basic installer
package and be backwards compatible.
	 
	3.4	 	[*]
	 
	3.5	 	Abnormal Disconnect Rate
	 
	 	 	An Update of the Media Player Software SDK/Client integrated with AOL
client shall not cause an increase in the abnormal disconnect rate.
	 
	3.6	 	[*]
	 
	3.7	 	Internationalization
	 
	 	 	Viewpoint shall provide an installer of their client software and SDK in
all languages supported by current and anticipated versions of AOL. The
Media Player Software software and SDK shall be designed and implemented
so as to be easily localized to any language and locale.





	* Certain information on this page has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions.



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	3.8	 	[*]
	 
	3.9	 	[*]
	 
	3.10	 	User Interface
	 
	 	 	Media Player Software client/SDK shall not preclude the use of an
AOL-supplied user interface.
	 
	3.11	 	[*]
	 
	3.12	 	[*]
	 
	3.13	 	[*]
	 
	4.0	 	Dedicated Support
	 
	 	 	Viewpoint will provide a dedicated account/product/project manager to
AOL. This person will be accountable for ensuring that all products and
bug fixes are delivered to AOL in accordance with AOL’s product
development schedule.
	 
	4.1	 	Bug Reporting Process
	 
	 	 	AOL and Viewpoint agree to utilize a standardized spreadsheet to notify,
update and close bugs. The companies will review this spreadsheet via
conference call on a weekly basis at minimum.
	 
	4.2	 	Resolution Process
	 
	 	 	Viewpoint will use commercial best
efforts with respect to Viewpoint
Technology to adhere to the resolution process provided in the table
below for any GPFs, bugs, problems, or any other errors inherent in or
caused by the Licensed Software as such Types of Error are reasonably
classified by AOL.




	 	 	 	 	 	 	 	 	 
	 	 	Viewpoint to assign	 	 	 	 	 	 
	 	 	engineer to	 	 	 	 	 	 
	 	 	investigate Error	 	Temporary	 	Software patch or	 	 
	Type of Error	 	within:	 	Work-around within:	 	bug fix within:	 	Upgrade within:
	
	 	
	 	
	 	
	 	

	GM stopper

(pre-release)High

Level Error

(post-release)	 	
Five (5) minutes
from having been
alerted
	 	Continuous effort
to minimize impact
of Error until
patch available
	 	Two (2) hours from
assignment of
technician
	 	30 days





	* Certain information on this page has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions.



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	Beta stopper

(pre-release)

Medium Level Error

(post-release)	 	
Fifteen (15)

minutes from having

been alerted
	 	Continuous effort

during normal

business hours
	 	Five (5) hours from
assignment of
technician
	 	60 days
	 
	Alpha stopper

(pre-release)

Low-Level Error

(post-release)	 	
Fifteen (15)
minutes to
forty-five (45)
minutes from having
been alerted (or,
in the case of
technical personnel
requiring
assistance or
information,
Viewpoint to
provide such
assistance or
information within
eight (8) business
hours
	 	Consultative effort

during normal

business hours
	 	10 business days
from assignment of
technician
	 	the next scheduled

Upgrade




	 
	AOL acknowledges that the use of commercial best efforts with respect to Viewpoint Technology may not necessarily mean
that Viewpoint meets the specified timeframes in all cases, provided that it does mean that in all cases, and without
limitation, Viewpoint shall immediately, upon notification by AOL as to an Error, begin work to rectify such Error.
Furthermore, the intent of the specified timeframes is to establish that the Viewpoint responses (as outlined above) which
can be provided to AOL within the specified timeframes will be
provided within such timeframes.





	4.3	 	Reporting
	 
	 	 	Viewpoint will provide a report on a bimonthly basis that denotes
headcount and hours per department dedicated to developing software of
repairing bugs on behalf of AOL.
	 
	4.4	 	“GM Stopper” or “High-Level Error” means a catastrophic error in the
Licensed Software for which no work-around has been made available to AOL and
(i) that causes an important component or function that is commonly used to be
unusable, (ii) that causes a crash for a commonly used feature or function,
(iii) in which commonly used features are completely non-functioning, or (iv)
that results in data loss or corruption.
	 
	4.4	 	“Beta Stopper” or “Medium-Level Error” means a non-catastrophic error for
which no work-around has been made available to AOL and (i) for which a
commonly used or important feature or function is partially non-functioning or
malfunctioning, or (ii) that is otherwise neither a High-Level Error nor a
Low-Level Error.
	 
	4.5	 	“Alpha Stopper” or “Low-Level Error” means any Error (i) that has minimal
impact on the end user, (ii) that is rare in occurrence, regardless of
severity, (iii) that causes a malfunction of a non-essential feature or
function, or (iv) for which a work-around is available.



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EXHIBIT C




Structure, Operation, and Functionality of Broadcast Keys



The Broadcast Key controls the display of content served from a website and
played through the VMP. The broadcast key is used to validate that the content
is being served from an appropriate site, and within an appropriate timeframe,
as was designated by the content author through the generation of the key in
which such information is contained. By inspection of the key, the VMP will
determine if content is being broadcast by an inappropriate website, or over an
inappropriate timeframe, in which case the content will not be displayed.



The Viewpoint Media Player (“VMP”) is configured to search for two inputs: a
file(s) in the Viewpoint format (i.e., with the .mtx or .mtz extension) and a
Broadcast Key. If a Broadcast Key is not valid (or not present), the VMP will
display a watermark over the content.



The Key Generation Application is Windows-based. It generates a Broadcast Key
which is embodied in a text file with the “.mtx” extension. The Broadcast Key
is comprised of a string of characters which identify the broadcasting (or
publishing) location and the expiration date of the Broadcast Key. The string
of characters is the result of a sparse hash function performed on the URL of
the location from
which the content is intended to be published.



The Viewpoint Media Player will not display a watermark if the Broadcast Key
contains the correct hash value for the broadcasting location and the date has
not been exceeded.



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Exhibit D. Functions of the Custom Player



The Custom Player will have the same functionality as the then current Media
Player Software and will also support the operating system platforms identified
in Section 3.9 of Exhibit B to the Agreement. It will be installed on the
computers of AOL subscribers in such a way as to be unaffected by installations
of other versions of the Viewpoint Media Player that are made before or after
the installation of the custom version.



[*]



Within 30 days after Viewpoint releases modifications to its standard Viewpoint
Media Player, those modifications will also be made to the Custom Player after
being fully tested and accepted. This process will help to ensure that the
feature set in the standard player and the Custom Player remain equal during
the term of the Agreement. and that content published by AOL or other web
publishers will be supported by the Custom Player. In addition, the Custom
Player will have the capability of playing back content encoded in any previous
versions of Viewpoint’s encoding or decoding formats. [*]



The details of the technical approach, the deliverable milestones, and the
division of responsibilities will be established in good faith through
discussions between the Viewpoint and AOL engineering teams, (it being
understood that Viewpoint will have the primary role in modifying the
Viewpoint Media Player Software and developing the Custom Player). The parties
will document the approach in a a detailed statement of work to be performed
under the Consulting Services Agreement, dated September 30, 2002, between the
Parties. The parties expect that all coding, integration, and testing for the
custom Viewpoint Media Player will take no more than twelve weeks from the date
that the parties agree on the detailed statement of work.





	* Certain information on this page has been omitted and filed separately with the Commission.
Confidential treatment has been requested with respect to the omitted portions.



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Exhibit E




Escrow Acceptance





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