exv10w6



 





Exhibit 10.6




	 	 	 
	 

	 	PORTIONS DENOTED WITH [***] HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.






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CONFIDENTIAL

AGREEMENT FOR CONSULTING SERVICES




     THIS AGREEMENT FOR CONSULTING SERVICES is made and entered into as of May 12, 2003 (the
“Effective Date”), by and between America Online, Inc., a Delaware corporation, with offices at
22000 AOL Way, Dulles, Virginia 20166 (hereinafter referred to as “AOL”), and LiveWorld, Inc., a
Delaware corporation, with principal offices at 170 Knowles Drive, Suite 211, Los Gatos, California
95070, (hereinafter referred to as “Consultant”) (each a “Party” and collectively the “Parties”).



     AOL operates the America Online® brand service, an interactive computer communications,
information and transactions service. Consultant is familiar with the America Online® brand
service. AOL desires to engage the services of Consultant and Consultant desires to accept such
engagement upon the terms and conditions set forth herein.



     NOW, THEREFORE, in consideration of the mutual promises set forth herein, AOL and Consultant
hereby agree as follows:



     1. Services and Scope of Work



          1.1 Services. Consultant agrees to provide to AOL consulting services (“Consulting
Services”) as they are described on Schedule 1 attached hereto as Exhibit A and on such schedules
as are executed from time to time by both Parties to this Agreement (the “Schedules”). Each
Schedule shall be consecutively numbered and annexed hereto. Consulting Services shall be provided
in accordance with the provisions of this Agreement and the applicable Schedule.



          1.2 Scope of Work. Each Schedule shall contain a description of the tasks to be
performed by Consultant, the deliverables and documentation, if any, to be produced by Consultant
(collectively, “Deliverables”), acceptance criteria for each Deliverable (for technical services or
if otherwise applicable), a schedule of performance, a schedule of payments and a statement of
Consultant’s then-current rates, if applicable.



          1.3 Performance of Services. Unless otherwise specified by AOL, Consultant has the
right to (i) control and direct the means, manner and method by which the Consulting Services are
performed, and (ii) perform the Consulting Services at any place or location and at such time as
Consultant may reasonably determine. Unless otherwise agreed to by the Parties in writing or on a



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Schedule, Consultant shall (i) observe the working hours, working rules and polices of AOL
while working on AOL’s premises, and (ii) furnish all equipment and materials used to perform the
Consulting Services, including but not limited to telephone lines, personal computers and modems.




          1.4 Other Work. Consultant has the right to perform services for others during the
term of this Agreement as long as such other engagement or performance does not interfere in any
way with the timely performance of the Consulting Services to be performed hereunder.



          1.5 Compliance with Applicable Law. Consultant shall ensure that Consultant complies
with all applicable local, state and federal law and AOL’s then-current Terms of Service in
performing the Consulting Services.



     2. Consultant Personnel



          2.1 Consultant Project Manager. Consultant will appoint for each Schedule a qualified
member of its staff to act as project manager (the “Consultant Project Manager”), whose duties
shall be to act as liaison between AOL and Consultant.



          2.2 Independent Contractor; No Agency. Consultant is an independent contractor.
Consultant shall not be deemed for any purpose to be an employee of AOL. AOL shall not be
responsible to Consultant or any governing body for any payroll-related taxes related to the
performance of the services, including but not limited to, withholding or other taxes related to
federal or state income tax, social security benefits or unemployment compensation. Consultant
further represents and warrants that Consultant qualifies as an independent contractor under the
provisions of the Internal Revenue Code and its common law rules and, as such, Consultant is filing
all required forms and necessary payments appropriate to the Consultant’s tax status. Neither
party is an agent, representative or partner of the other Party. Neither Party shall have any
right, power or authority to enter into any agreement for or on behalf of, or incur any obligation
or liability on behalf of, or to otherwise bind, the other Party. This Agreement shall not be
interpreted or construed to create an employment relationship, an association, agency, joint
venture or partnership between the Parties or to impose any liability attributable to such a
relationship upon either Party.



          2.3 Consultant’s Employees and Assistants. From time to time, Consultant may, subject
to the terms and conditions set forth in this Agreement, engage employees, independent contractors,
consultants, volunteer assistants or other persons or entities (collectively, “Assistants”) to aid
Consultant in performing Consultant’s duties under this Agreement. AOL has no relationship with or
to such Assistants and such Assistants are not employees, agents, consultants, representatives,
assistants or independent contractors of AOL. Consultant shall be fully and solely



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responsible for the supervision and payment of such Assistants and for all work performed by
such Assistants and any third party subcontractors approved by AOL as provided in this Agreement.




     3. Project Management



          3.1 AOL Project Manager. AOL shall designate a project manager for each Schedule (the
“AOL Project Manager”) who shall act as a liaison between AOL and Consultant.



          3.2 Progress Reports and Meetings. If requested by AOL, Consultant shall submit a
detailed progress report (“Progress Report”) to the AOL Project Manager every month (or more
frequently if requested by AOL) during the term of each Schedule. Progress Reports shall detail
work performed to date and estimated time and cost to complete. If AOL so requests, Consultant
shall hold status meetings with the AOL Project Manager in order to review the status of Consultant
activities.



          3.3 Accounts. If deemed necessary by AOL, Consultant may be given an account(s) for
the America Online® brand service for the exclusive purpose of enabling it and its agents to
perform Consultant’s duties under this Agreement. The account(s) shall be of the type determined
by AOL to be necessary for Consultant to perform its duties hereunder. Consultant shall be
responsible for any premium charges, transaction charges, communication surcharges or other charges
incurred by any such account(s), other than AOL’s standard monthly subscription charge. Consultant
shall be responsible for the actions taken under or through its account(s), which actions shall be
subject to AOL’s then-applicable Terms of Service. Upon termination of this Agreement, the
account(s), and any associated usage credits and related screen names or similar rights, shall
automatically terminate. AOL shall have no liability for loss of data or content related to
termination of any account.



          3.4 Software Tools. AOL shall determine in its sole discretion, which of its
proprietary software tools (each a “Tool”) shall be made available to Consultant in order for
Consultant to perform its duties hereunder. Consultant shall be granted a nonexclusive license to
use any such Tool, which license shall be subject to: (i) Consultant’s compliance with all rules
and regulations relating to use of the Tools, as published from time to time by AOL, (ii) AOL’s
right to withdraw or modify such license at any time, and (iii) Consultant’s express recognition
that AOL provides all Tools on an “as is” basis, without warranties of any kind.



     4. Fees, Expenses, Records, and Taxes



          4.1 Fees. Each Schedule shall set forth the fee due for the Consulting Services to be
provided pursuant to the Schedule and Consultant agrees to invoice AOL as set forth in the



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Schedule. All Consulting Services to be performed on a time and materials basis shall be
invoiced in arrears.



          4.2 Expenses. Consultant shall be entitled to reimbursement of the categories of
expenses set forth on the applicable Schedule. Consultant shall invoice AOL on a monthly basis for
expenses incurred as a result of performing Consulting Services in accordance with the Schedule.
Such expenses shall be limited to reasonable out-of-pocket expenses necessarily and actually
incurred by the Consultant in the performance of its services hereunder, provided that: (i) AOL has
given its prior written consent for any such expenses, including without limitation, travel
expenses; (ii) the expenses have been detailed on a form acceptable to AOL and submitted to the
appropriate AOL Project Manager for review and approval; and (iii) if requested by AOL, the
Consultant submits supporting documentation in addition to the approved expense form. Monthly
expenses shall not exceed the amount set forth in the relevant Schedule without the prior written
approval of the AOL Project Manager. Any travel expenses shall comply with AOL’s travel policy, a
copy of which has been provided to Consultant and AOL may, at AOL’s sole discretion, require
Consultant to make travel arrangements through an AOL-approved travel agency.



          4.3 Review of Fees and Expenses. Consultant will submit the charges and/or expenses
to be invoiced for services performed and the applicable time reports or documentation under any
Schedule and Acceptance Certificate in the form attached hereto as Exhibit C to the AOL Project
Manager for approval prior to actual invoicing. The charges and/or expenses invoiced in accordance
with this Section 4, except for any amounts disputed by AOL, shall be payable by AOL within [***]
days of AOL’s receipt of each invoice, accompanied by an Acceptance Certificate executed by the AOL
Project Manager.



          4.4 Maximum Dollar Amount. Notwithstanding anything to the contrary contained herein,
AOL shall not be liable for any charges and/or expenses under any Schedule for work in excess of
the Maximum Dollar Amount specified on such Schedule.



          4.5 Records. Consultant shall maintain complete and accurate accounting records, in a
form in accordance with generally accepted accounting principles, to substantiate Consultant’s
charges and expenses hereunder and Consultant shall retain such records for a period of [***] years
from the date of final payment under any Schedule.



          4.6 Taxes. Consultant shall be responsible for determining the applicability of any
sales, use, excise, or similar taxes which may be applicable to the performance of the Consulting
Services, if any. Consultant shall clearly and separately state any applicable taxes on
Consultant’s invoice to AOL for corresponding Consulting Services. AOL shall pay applicable taxes
on the invoice or, in lieu of the payment of any such taxes, AOL may provide Consultant with a
certificate



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acceptable to the taxing authorities exempting AOL from payment of these taxes. Consultant
shall pay all taxes collected from AOL to the appropriate taxing authority. Consultant, and not
AOL, shall be obligated to pay any applicable taxes not invoiced to AOL on the invoice for
corresponding Consulting Services, including without limitation, any and all interest, penalties
and attorneys’ fees. Consultant shall bear any and all costs, and shall indemnity AOL for any and
all costs, of or associated with any determination of applicable taxes, the collection of such
taxes and the payment of such taxes to the taxing authority (except to the extent AOL has
wrongfully failed to pay such taxes or provide a certificate(s) as provided above), including,
without imitation, penalties, interest and attorneys’ fees.



     5. Acceptance of Services



     All Consulting Services and Deliverables delivered by the Consultant pursuant to the Agreement
and the attached Schedules shall be subject to acceptance by AOL.



     6. Term and Termination



          6.1 Term. This Agreement shall commence on the Effective Date and shall continue in
full force and effect thereafter unless and until it is terminated or expires in accordance with
the provisions of this Agreement or any Schedule or, if it is not terminated and no expiration is
provided in any applicable Schedule, until satisfactory completion of the services provided for
herein and in all Schedules and acceptance thereof by AOL (“Project Completion”). Upon expiration
of the Term, if prior to Project Completion, AOL shall have the option, at its sole discretion, to
renew this Agreement for any period of time up to and including Project Completion by giving
written notice of such intent to renew to Consultant prior to the expiration of the Term.



          6.2 Termination For Breach. Either Party may terminate this Agreement at any time in
the event of a material breach by the other Party which remains uncured after [***] days written
notice thereof (or such shorter period as may be specified in this Agreement or in any applicable
Schedule).



          6.3 Termination Upon Notice. Notwithstanding anything to the contrary herein or in
any Schedule, AOL may terminate this Agreement or any Schedule hereunder for any reason by giving
the Consultant [***] prior written notice of its election to terminate said Agreement or Schedule.



          6.4 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



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any proceeding related to its liquidation or insolvency (whether voluntary or involuntary)
which is not dismissed within [***] calendar days or (iv) makes an assignment for the benefit of
creditors.



          6.5 AOL Rights and Payment Upon Termination. If either Party terminates the
Agreement, AOL agrees to pay Consultant for all expenses incurred by the Consultant with AOL’s
approval up to the effective date of termination. In the event AOL terminates this Agreement or
any Schedule under Section 6.3 prior to the completion of the services rendered under each
Schedule, (a) Consultant shall be compensated a pro-rata share of the fee due to Consultant under
this Agreement and the applicable Schedule, and (b) if applicable, AOL shall pay Consultant for all
Progress Milestones (as set forth in the applicable Schedule) completed and accepted by AOL and a
pro-rata share of the Progress Milestone Consultant is working to complete at the time the
applicable schedule is terminated. Termination under this Agreement shall not affect AOL’s rights
in and to all Deliverables, Materials (as defined in Exhibit B) and work product created by
Consultant pursuant to this Agreement prior to such termination.



     7. Terms and Conditions. The terms and conditions set forth on Exhibit B attached
hereto are hereby made a part of this Agreement.



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     IN WITNESS WHEREOF, the Parties hereto, each acting under due and proper authority, have
executed this Agreement as of the date first written above.



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	AMERICA ONLINE, INC.	 	 	 	CONSULTANT	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	Print Name:	 	 	 	 	 	Print Name:	 	 	 	 
	Title:

	 	 	 	 

	 	 	 	Title:
	 	 	 	 

	 	 
	 	 	 	 	 	 	 	 	 	 	 
	Date:

	 	 	 	 	 	 	 	Date:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	EIN or SSN:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 

	 	 






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EXHIBIT A




SCHEDULE NO. 1 (“Schedule 1”) DATED MAY 12, 2003

AGREEMENT FOR CONSULTING SERVICES

BETWEEN

AMERICA ONLINE, INC. AND LIVEWORLD, INC.




DATED AS OF MAY 12, 2003 (the “Agreement”)




SCOPE OF WORK





	1.	 	Detailed description of services to be rendered by Consultant:






	 	•	 	Assess AOL’s current online support capabilities and strategies
with respect to AOL Members who contact AOL through AOL’s member services group
(“Member Services”). Consultant shall offer new ways for AOL Members to get
their questions answered by other AOL Members through the use of new tools, such
as an online answer board (the “Answer Board”), in order to offset calls that
come into Member Services.
	 
	 	•	 	Identity industry best practices relevant to AOL.
	 
	 	•	 	Recommend a strategy and implementation plan (the “Implementation
Plan”) for involving and encouraging AOL Members to support each other through
the use of Answer Boards.
	 
	 	•	 	The Implementation Plan will include:






	 	o	 	Answer Board user experience flow diagram that is consistent with the
AOL experience.
	 
	 	o	 	Answer Board screen shot mock-ups that are consistent with the AOL
experience.
	 
	 	o	 	Recommend AOL and/or third party online support applications for the
Answer Boards.
	 
	 	o	 	AOL organizational impacts.
	 
	 	o	 	Recommend AOL or outsourced technical infrastructure for the Answer
Boards.





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	 	•	 	The Implementation Plan will cover key support issues such as:






	 	o	 	Answer Board content organization and integration within AOL
environment.
	 
	 	o	 	Content seeding (i.e. posting of the first questions and answers),
moderation and other personnel consideration for the Answer Boards.
	 
	 	o	 	Knowledge sharing and management of the Answer Boards.
	 
	 	o	 	Quality control of the Answer Boards.
	 
	 	o	 	Escalation management of the Answer Boards.
	 
	 	o	 	Other features, specification, staged rollout plans of the Answer Boards.
	 
	 	o	 	Budgeted development, set-up and ongoing costs including variable,
volume dependent costs of the Answer Boards.





Project Teams




AOL Team





	 	•	 	Senior decision maker and budget authority: Michael Sherrod.
	 
	 	•	 	Others to be determined by AOL.






	 	o	 	Support solution project manager.
	 
	 	o	 	Ongoing online support program manager.
	 
	 	o	 	AOL technology contact.
	 
	 	o	 	AOL technical operations contact.





Consultant’s Team





	 	•	 	Project and Technology Lead: Trev Griffiths.
	 
	 	•	 	Content Expert: Jay Friedman.
	 
	 	•	 	Executive Sponsors: Peter Friedman.
	 
	 	•	 	Other Consultant team members as appropriate.






	2.	 	Deliverables and documentation to be produced by Consultant:
	 
	 	 	The project plan for the consulting engagement shall include:






	 	a.	 	Assessment phase:






	 	•	 	Onsite meeting with key AOL support executives, management
and staff.
	 
	 	•	 	Review current AOL metrics.
	 
	 	•	 	Complete technical review.
	 
	 	•	 	Competitive review of two to three (2-3) key comparable
company support models.





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	 	b.	 	Strategy phase:






	 	•	 	Develop written strategy (including Return On Investment
model and other metrics).
	 
	 	•	 	Complete an Implementation Plan (to include Ul, flow, and
screen shots).
	 
	 	•	 	Updated budget for implementation including development,
set-up and ongoing program and operational management.






	 	c.	 	Report phase:






	 	•	 	Onsite meeting with the AOL support team to present the
recommended strategy and Implementation Plan.
	 
	 	•	 	Refine the strategy and Implementation Plans based upon
agreed upon changes.






	3.	 	Time for Performance/Delivery
	 
	 	 	2a: Assessment Phase — To be completed no later than [***]
	 
	 	 	2b: Strategy Phase — To be completed no later than [***]
	 
	 	 	2c: Report Phase — To be completed no later than [***]
	 
	4.	 	Acceptance testing criteria for each Deliverable:
	 
	 	 	Applicable as described below                               Not Applicable X
	 
	5.	 	Payments:






	 	(a)	 	Consulting Project Fee:           Fixed Price: [***]
	 
	 	(b)	 	Expenses





                    Subject to the requirements set forth in Section 4 of this Agreement, AOL shall reimburse
Consultant up to a maximum of [***]/month for the following categories of expenses: travel and
out-of-pocket expenses.




	 	(c)	 	Payment Schedule
	 
	 	 	 	All fees and expenses due shall be invoiced by Consultant in arrears as follows:





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	 	 	 	 	 	  X             Progress Payments as follows:	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Progress Milestones
	 	Progress Payments
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	o	 	 	One third upon full execution of the Agreement
	 	[***]	 	 
	 

	 	 	o	 	 	One third as a progress payment on [***]
	 	[***]	 	 
	 

	 	 	o	 	 	One third on [***]
	 	[***]	 	 







	 	(d)	 	Maximum Dollar Amount





                         The maximum dollar amount payable to Consultant for all fees and expenses under this Schedule:
[***]



	 	 	 	 	 	 	 	 	 
	 

	 	 	6.	 	 	Consultant Project Manager:
	 	Name: Peter Friedman
	 

	 	 	 	 	 	 	 	Fax #: 443-265-0365
	 
	 	 	 	 	 	 	 	 
	 

	 	 	7.	 	 	AOL Project Manager:
	 	Name: Michael Sherrod
	 

	 	 	 	 	 	 	 	Fax#: 703-265-9310
	 
	 	 	 	 	 	 	 	 
	 	 	 	8.	 	 	Term of this Schedule: From [***] through [***]
	 
	 	 	 	 	 	 	 	 
	 	 	 	9.	 	 	Additional Terms and Conditions: None.






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	AMERICA ONLINE, INC.	 	 	 	CONSULTANT	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	Print Name:	 	 	 	 	 	Print Name:	 	 	 	 
	Title:

	 	 	 	 

	 	 	 	Title:
	 	 	 	 

	 	 
	 	 	 	 	 	 	 	 	 	 	 
	Date:

	 	 	 	 	 	 	 	Date:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 





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EXHIBIT B

Terms and Conditions




I. NO RIGHTS IN AOL PROPERTY/TRADEMARKS



No Ownership or License. Nothing in this Agreement shall convey to Consultant any right,
license, title, interest in and to the Work (as defined below). The AOL “look and feel”, or any
other AOL property, property interest, license or right.



No Right to Post Content. Unless specifically directed to do so by AOL, Consultant shall
have no right to post or display content or other materials in any area in the AOL Network. As
used in this Agreement, AOL Network shall mean (i) the America Online® brand service, (ii) any
international versions of the America Online service, and (iii) any other product or service owned,
operated, distributed or authorized to be distributed by or through AOL or its affiliates worldwide
(which may include, without limitation, internet sales promoting AOL products and services and any
“offline” information browsing products of AOL or its Affiliates).



No Right to Use Trademarks. Consultant shall have no right to use any AOL trade name,
trademark or service mark.




II. CONFIDENTIALITY/PROPRIETARY RIGHTS/ SECURITY TRADING/NON-SOLICITATION



Confidentiality. Consultant acknowledges that (1) AOL, its subsidiaries and affiliated
companies, are the owners of valuable trade secrets, and other confidential information and license
same from others, (2) in the performance of the Consulting Services, Consultant shall receive or
become aware of such information as well other confidential and proprietary information concerning
AOL, its subsidiaries and affiliated companies’ business affairs, finances, properties, methods of
operation and other data including the terms of this agreement (hereinafter collectively referred
to as “Confidential Information”), and (3) unauthorized disclosure of any Confidential Information
would irreparably damage AOL, its subsidiaries and/or affiliated companies.



Consultant further acknowledges that the services which AOL, its subsidiaries and/or affiliated
companies performs for clients are confidential that to enable AOL, its subsidiaries and/or
affiliated companies to perform those services, its clients furnish confidential information
concerning their business affairs, finances, properties, methods of operation and other data; that
the good will of AOL, its subsidiaries and/or affiliated companies depends, among other things,
upon its keeping such services and information confidential and that unauthorized disclosure of the
same would irreparably damage AOL, its subsidiaries and/or affiliated companies; and that by reason
of its duties hereunder, Consultant may come into possession of information concerning such
services or information furnished by clients, even though Consultant does not himself take any
direct part in or furnish the services performed for those clients.



All such information owned by AOL, its subsidiaries and/or affiliated companies, licensed by AOL,
its subsidiaries and/or affiliated companies, or concerning clients of AOL, its subsidiaries and/or
affiliated companies and services rendered by AOL, its subsidiaries and/or affiliated companies to
such clients if hereinafter collectively referred to as “Confidential Information.”



For the purposes of this agreement, Confidential Information shall also mean any information
relating to or disclosed in the course of the Agreement, which is or should be reasonably
understood to be confidential of proprietary to AOL, including, but not limited to, the material
terms of this Agreement, information about AOL Members (e.g., AOL Member names, screennames,
addresses or other identifying information), technical processes and formulas, source codes,
product designs, sales, cost and other unpublished financial information, product and related
business plans, projections, and marketing data. The provisions of this paragraph shall not apply
to Confidential Information that has, through no fault of Consultant, become public knowledge. As
used herein, AOL Member shall mean authorized users of the AOL Network, including any sub-accounts
using the AOL Network under an authorized master account.



Non-Disclosure. Consultant agrees that, except as directed by AOL or as permitted in this
Paragraph, Consultant will not



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at any time during or after the term of this Agreement disclose any confidential Information to any
person, or permit any person to examine and/or make copies of any reports or any documents prepared
by consultant or that come into consultant’s possession or under consultant’s control by reason of
consultant’s services, and that upon termination of this Agreement, Consultant will turn over to
AOL all documents, papers, and other matter in Consultant’s possession or under Consultant’s
control that contain or relate to such Confidential Information. Notwithstanding the foregoing,
consultant may disclose confidential Information to its Assistants when reasonably necessary to
perform the Consulting Services; provided that (i) such Assistants agree in writing to be bound by
the terms of this Agreement, and (ii) no such Assistant shall be an Interactive Service or an
employee or independent contractor of an Interactive Service.



Without limiting the generality of the foregoing, Consultant shall not collect AOL Member
screennames from public or private areas of the AOL Network and shall comply with AOL’s bulk e–mail
policy.



Injunctive, Relief. Consultant acknowledges that disclosure of any Confidential
Information by Consultant will give rise to irreparable injury to AOL, its subsidiaries and/or
affiliated companies or the owner of such information, inadequately compensable in damages.
Accordingly, AOL or such other Party may seek and obtain injunctive relief against the breach or
threatened breach of the foregoing undertakings, In addition to any other legal remedies which may
be available. Consultant acknowledges and agrees that the covenants contained herein are necessary
for the protection of legitimate business interests of AOL, its subsidiaries and/or affiliated
companies and are reasonable in scope and content.



Proprietary Rights. Except for Consultant’s Pre-existing Materials, all work, services and
materials performed or created under any Schedule (“Work”), including, but not limited to, (i)
names, characters, protectable organizational structures, “look and feel”, other “brand”
components, (ii) all materials, specifications, designs, writings, code, products, or other
deliverables developed or prepared for AOL by consultant under such Schedule (whether or not such
Schedule is completed) or provided or delivered to AOL by consultants, Assistants or their agents
pursuant to this Agreement (collectively, “Materials”) and (iii) any and all new or improved idea,
design, concept or other invention made or developed by consultant during the course of rendering
the Consulting Services or developing or preparing the Materials (collectively, “Invention”), are
the property of AOL and all title and interest therein shall vest in AOL and shall be deemed to be
a work made for hire and made in the course of consulting Services rendered hereunder. Consultant
shall promptly and completely disclose to AOL in writing any and all Inventions.



To the extent that title to any Works may not, by operation of law, vest in AOL or such Works may
not be considered works made for hire, Consultant hereby irrevocably assigns to AOL all right,
title and interest in and to any Work, including but not limited to any and all Materials and
Inventions. All Works, including but not limited to Materials and Inventions, shall belong
exclusively to AOL and AOL shall have the right to obtain and to hold in its own name, copyrights,
registrations, patents, or such other protection as may be appropriate to the subject matter, and
any extensions and renewals thereof. Consultant agrees to give AOL and any person designated by
AOL such reasonable assistance, at AOL’s request and expense, as is required to perfect, secure and
protect AOL’s intellectual property and other rights set forth in this Section, including but not
limited to executing all documents necessary to perfect, secure and protect such rights.



Unless otherwise requested by AOL, upon the completion of the services to be performed under each
Schedule or upon the earlier termination of such Schedule, Consultant shall immediately turn over
to AOL all Work, including without limitation, any and all Materials and Inventions, developed
pursuant to such Schedule.



For purposes of this Agreement, “Consultant’s Pre-existing Materials” means any concepts,
materials, code, methodology, process, technique or intellectual property right developed, evolved
during the course of the Consulting Services, licensed or otherwise acquired by Consultant
independent of the Agreement and services to be rendered hereunder and which are not based upon and
do not incorporate any AOL Confidential Information or other intellectual property rights of AOL.
Consultant hereby grants an irrevocable, fully paid–up, worldwide, non–exclusive, assignable,
sublicensable license to use, reproduce, display,


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perform, distribute and make derivative works of any of Consultant’s Pre–existing Materials that
are incorporated into the Deliverables.



Securities Trading Policy. Consultant agrees, for the term of this Agreement and for as
long thereafter as Consultant has access to material, non–public information of AOL to comply with
terms of AOL’s securities trading policy (the “Securities Policy”), a copy of which has been
provided to Consultant as revised from time to time, to the same extent as employees of AOL are
obligated to comply with the Securities Policy.



Non–Solicitation. Unless otherwise mutually agreed to by the Parties in writing,
Consultant agrees not to hire or to solicit the employment of any personnel of AOL during the term
of this Agreement and for a period of one (1) year thereafter.



Statements to Third Parties. During the term of the Agreement, Consultant shall not make,
publish or otherwise communicate, or cause to be made, published or otherwise communicated, any
deleterious remarks whatsoever to any third parties concerning AOL or its affiliates, directors,
officers, employees or agents, including without limitation, AOL’s business projects, business
capabilities, performance of duties and services or financial position.




III. REPRESENTATIONS AND WARRANTIES.


Representations and Warranties. Consultant represents and warrants that: (a) Consultant is
or will promptly and prior to the Effective Date become familiar with AOL’s current of then–current
Terms of Service Agreement; (b) Consultant has or shall have the proper skill, training, and
background so as to be able to perform in a competent and professional manner and that all work
will be performed in accordance with applicable standards; (c) AOL shall receive free, good and
clear title to all Work which may be developed by Consultant under this Agreement or which is
provided or delivered to AOL by Consultant or Consultant’s Assistants, agents or representatives
pursuant to this Agreement including without limitation the Materials and Inventions, which title
shall be free and clear of any and all liens, encumbrances, claims or litigation, whether pending
or threatened, (d) no Work, Deliverable or other materials delivered by Consultant to AOL
hereunder, including without limitation Materials and Inventions, shall infringe on or violate (i)
any copyright, trademark, patent, any music performance or other music related right, (ii) any
other proprietary or other right of any third party, including but not limited to any third party
right to privacy, (iii) any applicable law or regulation, or (iv) AOL’s Terms of Service to any AOL
service guidelines or standards made available to Consultant by AOL, and (e) no Work, Deliverable
or other materials delivered by Consultant to AOL hereunder, including without limitation,
Materials and Inventions, shall contain any scandalous, libelous or unlawful matter or material.



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 if 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; (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; and
(iv) such Party acknowledges that the other Party makes no representations, warranties or
agreements related to the subject matter hereof which are not expressly provided for in this
Agreement.




IV. INDEMNITY.



Indemnity. Consultant shall defend, indemnity and hold harmless AOL, its officers,
directors, agents, affiliates, distributors, franchisees and employees from any and all loss and
third party claims, demands, liabilities, costs or expenses, including without limitation
reasonable outside and in–house attorney’s fees and expenses (“Liabilities”) resulting from (a)
actual or alleged infringement of any patent, copyright, or other property rights (including, but
not limited to, misappropriation of trade secrets) based on any software, program, service and or
other materials furnished to AOL by Consultant pursuant to the terms of this Agreement, including
without limitation, the Work, Materials or Inventions, or the use thereof by AOL, (b) the payment
of compensation or salary asserted by an employee or Assistant of Consultant, as well as any claim
that AOL stands in any relationship



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including, but not limited to employment, co–employment and joint employment, with AOL, (c) any
governmental determination that Consultant is not an independent contractor or litigation
determining a change of Consultant’s independent contractor status, including liability for taxes
and other penalties assessed upon AOL because of Consultant’s change or lack of independent
contractor status, (d) Consultant’s material breach of any obligation, duty, representation or
warranty contained in this Agreement or in any Schedule attached hereto, and (e) the fault or
negligence of Consultant and/or its Assistants.



In the event that Consultant is a professional corporation, each of the members of said corporation
hereby agrees to be held jointly and severally liable for any liability of Consultant set forth
herein or arising hereunder. AOL reserves the right to assume the exclusive defense and control of
any matter otherwise subject to indemnification by Consultant hereunder. Consultant agrees, should
AOL’s use of any service, program, and/or other material furnished to AOL by Consultant be enjoined
by any court, to promptly obtain, at no expense to AOL, the right to continue to use the items so
enjoined or, at no expense to AOL, provide AOL promptly with substitute items that are functionally
equivalent to the enjoined products. If Consultant can not secure AOL’s right to continue using
such items or substitute such items as provided herein, Consultant agrees to refund all sums earned
under this Agreement relating to the provision of such items.



AOL shall defend, indemnify and hold harmless Consultant, its officers, directors, agents,
affiliates, distributors, franchisees and employees from any and all Liabilities resulting from
actual or alleged infringement of any patent, copyright or other property right (including, but not
limited to, misappropriation of trade secrets) based on any proprietary materials with respect to
which AOL has a copyright, patent or trademark right furnished by AOL to Consultant specifically
for inclusion in the Works or Materials (excluding any claim for infringement arising out of the
combination of such proprietary AOL materials with Consultant’s materials, software, programs or
services or otherwise not relating exclusively to such AOL provided proprietary materials).




V. GENERAL.


Excuse. Neither Party shall 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.



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 data, whether or not actually received, if sent by U.S. mail,
return receipt requested, postage and changes 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 AOL
Project Manager and the Deputy General Counsel (fax no. 703-265-1105), such at the address of AOL
set forth in the first paragraph of this Agreement. In the case of Consultant, except as otherwise
specified herein, the notice address shall be the address for Consultant set forth in the first
paragraph of this Agreement, with the other relevant notice information, including the recipient
for notice and, as applicable, such recipient’s fax number to be as reasonably identified by AOL.



No Waiver. The failure of either Party to insist upon or enforce strict performance by the
other Party of any provision of this Agreement or to exercise any right under this Agreement shall
not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or
rely upon any such provision or right in that or any other instance; rather the same shall be and
remain in full force and effect.



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 shall be bound by, and each Party specifically objects to, any term, condition or other
provisions which is different from or in addition to the provisions of this Agreement (whether or
not it would materially alter this



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Agreement) and which is provided by the other Party in any correspondence or other document, unless
the Party to be bound thereby specifically agrees to such provision in writing.



Amendment. No change, amendment or modification of any provision of this Agreement shall
be valid unless set forth in a written instrument signed by the Party subject to enforcement of
such amendment.



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



Assignment. Consultant shall not assign this Agreement or any right interest or benefit
under this Agreement without the prior written consent of AOL. Assumption of the Agreement by any
successor to Consultant (including, without limitation, by way of merger, consolidation or sale of
all or substantially all of Consultant’s stock or assets) shall be subject to AOL’s prior written
approval. Subject to the foregoing, this Agreement shall be fully binding upon, inure to the
benefit of and be enforceable by the Parties hereto and their respective successors and assigns.



Subcontract. No work or services to be performed by Consultant hereunder shall be
subcontracted to or performed on behalf of Consultant by any third party, except upon written
permission by AOL.



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 shall 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 shall remain in full force and effect.



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.



Applicable Law; Jurisdiction. This Agreement shall 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. Each Party irrevocably consents to the exclusive jurisdiction of the
courts of the Commonwealth of Virginia and the federal courts situated in the Commonwealth of
Virginia, in connection with any action to enforce the provisions of this Agreement, to recover
damages or other relief for breach or default under this Agreement, or otherwise arising under or
by reason of this Agreement.



Export Controls. Both Parties shall adhere to all applicable laws, regulations and rules
relating to the export of technical data and shall not export or re–export any technical data, any
products received from the other Party or the direct product of such technical data to any
prescribed county listed in such applicable laws, regulations and rules unless properly authorized.



Publicity. Consultant agrees that it will not, without prior written consent of AOL, use
in advertising, publicity, or otherwise the name of AOL, or refer to the existence of this
Agreement in press releases, advertising, or materials distributed to prospective customers.



Duty to Inform. Consultant shall promptly inform AOL of any information related to the
Consulting Services, including without limitation the Work, Materials, Deliverables and Inventions,
which could reasonably lead to a claim, demand or liability of or against AOL and/or its Affiliates
by any third party.



Limitations. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL,
CONSEQUENTIAL SPECIAL OR PUNITIVE DAMAGE OF ANY KIND OR NATURE, WHETHER SUCH LIABILITY IS ASSERTED
ON THE BASIS OF CONTRACT (INCLUDING, WITHOUT LIMITATION, THE BREACH OF THIS AGREEMENT OR ANY
TERMINATION OF THIS AGREEMENT), TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE OR STRICT LIABILITY)
OR OTHERWISE, EVEN IF



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ANY OTHER PARTY HAS BEEN WARNED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE IN ADVANCE.



Workers’ Compensation Insurance. No workers’ compensation insurance shall be obtained by
AOL concerning Consultant. Consultant shall comply with the applicable workers’ compensation law
concerning Consultant and shall provide to AOL a certificate of workers’ compensation insurance
upon request.



Comprehensive General Liability Insurance. Consultant further agrees to secure and
maintain, at Consultant’s sole cost and expense, Comprehensive General Liability Insurance for
damage claims due to bodily injury (including death), or property damage caused by or arising from
acts or omissions of Consultant. The minimum limits of such insurance will be one million dollars
($1,000,000.00). Maintenance of the foregoing insurance will in no way be interpreted as relieving
Consultant of any responsibility whatsoever.



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



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



Surviving Sections. The following sections shall survive the termination of this Agreement
2.2 (“Independent Contractor”); 2.3 (“Consultant’s Employees and Assistants); 4.6 (“Taxes”) of this
Agreement and this Exhibit B.



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EXHIBIT C




ACCEPTANCE CERTIFICATE




SCHEDULE NO. ___DATED ___[insert Schedule date]                     TO

AGREEMENT FOR CONSULTING SERVICES

BETWEEN

AMERICA ONLINE. INC. AND                     

DATED AS OF ___[Insert main agreement date] ___(the “Agreement”)




	 	 	 	 	 
	1.

	 	Deliverables and documentation to be produced by Consultant:
	 	AOL
	 

	 	 	 	 
	 

	 	Approval	 	 
	 

	 	 	 	 
	 

	 	2A:	 	 
	 

	 	 	 	 
	 

	 	2B:	 	 
	 

	 	 	 	 
	 

	 	2C:	 	 
	 

	 	 	 	 
	 

	 	2D:	 	 
	 

	 	 	 	 
	2.

	 	Time for Performance/Delivery
	 	AOL Approval
	 

	 	 	 	 
	 

	 	2A:	 	 
	 

	 	 	 	 
	 

	 	2B:	 	 
	 

	 	 	 	 
	 

	 	2C:	 	 
	 

	 	 	 	 
	 

	 	2D:	 	 
	 

	 	 	 	 
	3.

	 	Acceptance testing criteria for each Deliverable:
	 	AOL Approval
	 

	 	 	 	 
	 

	 	Applicable as described below ___           Not Applicable ___	 	 
	 

	 	2A:	 	 
	 

	 	 	 	 
	 

	 	2B:	 	 
	 

	 	 	 	 
	 

	 	2C:	 	 
	 

	 	 	 	 
	 

	 	2D:	 	 
	 

	 	 	 	 
	4.

	 	Payments approved by AOL:
	 	AOL
	 

	 	 	 	 
	 

	 	Approval	 	 
	 

	 	                     Monthly	 	 
	 

	 	                     Upon Completion	 	 
	 

	 	 	 	 
	 

	 	                     Other (describe:                                                             )	 	 
	 

	 	 	 	 
	 

	 	                     Progress Payments as follows:	 	 
	 

	 	 	 	 





	 	 	 	 	 	 	 	 	 
	Approval	 	Progress Payments	 	Progress Milestone	 	AOL
	Item 2A:

	 	$	 	 	 	 	 	 
	 

	 	 	 	 	 
	 	 
	Item 2B:

	 	$	 	 	 	 	 	 
	 

	 	 	 	 	 
	 	 
	Item 2C:

	 	$	 	 	 	 	 	 
	 

	 	 	 	 	 
	 	 
	Item 2D:

	 	$	 	 	 	 	 	 
	 

	 	 	 	 	 
	 	 





Payment for Partial Performance.



If AOL terminates this Agreement or any Schedule under Section 6.3 of the Agreement, AOL shall pay
Consultant through the Progress Milestone accepted and approved above; and a pro-rata share of the
next Progress Milestone Consultant is working to complete at the time the Agreement or Schedule is terminated (as set forth
in Section 6.5 of the Agreement).




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