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AOL Inc. – ‘10-12B/A’ on 11/16/09 – EX-10.73

On:  Monday, 11/16/09, at 2:30pm ET   ·   Accession #:  1193125-9-235507   ·   File #:  1-34419

Previous ‘10-12B’:  ‘10-12B/A’ on 11/12/09   ·   Latest ‘10-12B’:  This Filing

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  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

11/16/09  AOL Inc.                          10-12B/A              11:3.9M                                   RR Donnelley/FA

Document/Exhibit                   Description                      Pages   Size 

 1: 10-12B/A    Amendment #5 to Form 10                             HTML    134K 
 2: EX-2.1      Plan of Acquisition, Reorganization, Arrangement,   HTML    242K 
                          Liquidation or Succession                              
 3: EX-8.1      Opinion re: Tax Matters                             HTML     19K 
 4: EX-10.1     Material Contract                                   HTML     82K 
 5: EX-10.2     Material Contract                                   HTML     63K 
 6: EX-10.3     Material Contract                                   HTML    212K 
 7: EX-10.4     Material Contract                                   HTML    109K 
 8: EX-10.5     Material Contract                                   HTML     38K 
 9: EX-10.73    Material Contract                                   HTML    206K 
10: EX-21.1     Subsidiaries of the Registrant                      HTML     22K 
11: EX-99.1     Miscellaneous Exhibit                               HTML   2.05M 

Exhibit 10.73

CONFIDENTIAL

MASTER SERVICES AGREEMENT

THIS MASTER SERVICES AGREEMENT (the “Agreement”) is made and entered into on November 16, 2009 and effective as of December 1, 2009 (the “Effective Date”), between AOL Inc., a Delaware corporation with offices at 770 Broadway, New York, New York 10003 (together with its Subsidiaries hereinafter referred to as “AOL”), and Time Warner Inc., a Delaware corporation with offices at One Time Warner Center, New York, NY 10019 (“Time Warner”).

WHEREAS, AOL and Time Warner are parties to that certain Separation and Distribution Agreement, dated November 16, 2009, whereby they have agreed that Time Warner shall distribute its entire interest in AOL as a stock dividend to the Time Warner common stockholders with the result that AOL and Time Warner will no longer be affiliated companies (the “Separation”).

WHEREAS, prior to the Separation AOL’s predecessor, AOL LLC and its Affiliates, have been providing certain Internet services to Time Warner and Time Warner’s Affiliates (other than AOL) (each of Time Warner and Time Warner’s Affiliates other than AOL, a “TW Company,” and together, the “TW Companies”) pursuant to a Master Services Agreement between AOL LLC and Turner Broadcasting System, Inc., dated November 1, 2006 and a Managed Hosting Agreement between AOL LLC and Time, Inc., dated October 22, 2008 (“Previous Agreements”) and certain other service orders and arrangements.

WHEREAS Time Warner has requested and AOL has agreed to terminate the Previous Agreements and continue to provide such services to the TW Companies (including, for the avoidance of doubt, AOL LLC) pursuant to this Agreement. AOL and each participating TW Company may be referred to herein as a “Party” and collectively the “Parties”).

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

1. Definitions. Capitalized terms used but not defined in the body of this Agreement shall have the respective meanings given to such terms in Exhibit A attached hereto.

2. Provision of Services.

3. AOL Responsibilities. AOL will provide the Services in a manner and with the same level and degree of care from and after the Separation as it has been providing to the TW Companies prior to the Separation.

2

4. Intentionally Omitted.

5. Fees and Payments.

3

6. Proprietary Rights.

7. Insurance.

4

5

8. Confidentiality; Data Security.

6

9. Representations and Warranties.

Each Party represents and warrants to the other Party that: (a) such Party has the full corporate right, power and authority to enter into the Agreement, to grant the rights and licenses granted hereunder and to perform the acts required of it hereunder; (b) such Party shall comply with the provisions of all applicable federal, state, country and local laws, ordinances, regulations and codes; (c) the execution of the 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; (d) when executed and delivered by such Party, the Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (e) such Party acknowledges that the other Party makes no representations, warranties or agreements related to the subject matter hereof that are not expressly provided for in the Agreement.

10. Indemnity and Limitation of Liability.

Each TW Company shall defend, indemnify, save and hold harmless AOL and its officers, directors, agents, Affiliates, distributors, franchisees and employees from and against any and all Losses arising out of or relating to (a) such TW Company’s Customer Site or any Customer Domain (including, any claim by a customer or end-user of the Customer Site); (b) claims related to any authorizations, rights or licenses necessary to provide the Customer Site; (c) claims that the Customer Site, any Updates, the Customer Domain, the registration of the same, and the manner in which a TW Company uses or permits others to use such Customer Site or Customer Domain directly or indirectly, misappropriate or infringe any copyright, trade secret, or trademark or any Patent or other legal rights of any Third Party and (d) claims for reimbursement for any costs arising from or related to the subpoena of any Customer Data, or Customer connection, including but not limited to costs associated with the clean-up of any impacted servers and the replacement cost of any affected machines or Equipment.

7

8

11. Term and Termination.

9

12. Miscellaneous.

10

11

[Remainder of Page Intentionally Left Blank; Signature Page Follows]

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IN WITNESS WHEREOF, the Parties have caused their duly authorized representatives to execute this Agreement.

13

EXHIBIT A – DEFINITIONS

“Action” has the meaning set forth in Section 10.1 of the Agreement.

“Additional Deliverables” means any products, services, or documents beyond the Deliverables expressly to be provided by AOL pursuant to this Agreement or any Service Order hereunder.

“Affiliate” means, with respect to any Person, any other Person which, directly or indirectly, controls, is controlled by, or is under common control with, such other Person. A Person shall be deemed to “control” another Person if it owns, directly or indirectly, more than fifty percent (50%) of the outstanding voting securities, capital stock, or other comparable equity or ownership interest of such Person.

“Agreement” has the meaning set forth in the preamble.

“AOL” has the meaning set forth in the preamble.

“AOL Data Centers” means AOL owned or controlled facilities used to Host the Customer Site.

“AOL Employee” means, for the purposes of this Agreement only, any employee of contractor of AOL.

“AOL Stadium” (Trademark) is an infrastructure of routers, switches, servers and software required to operate the delivery of static Internet content and accompanying management services.

“AOL Works” has the meaning set forth in Section 6.2 of the Agreement.

“Backup Service Level” has the meaning set forth in Exhibit B – 2.

“Business Day” means Monday, Tuesday, Wednesday, Thursday, or Friday, excluding holidays observed in the United States of America.

“Collocation Facility” means the building where Licensed Space is located as defined in a Service Order.

“Collocation Network Service” has the meaning set forth in Exhibit B – 1.

“Collocation Service Order” means a request to collocate submitted by Customer in the form of Exhibit C-2.

“Commercially Reasonable Efforts” means that degree of skill, effort, expertise, and resources that a business entity’s employees with ordinary skill, ability, and experience, under circumstances similar to those addressed herein, would reasonably use and otherwise apply with respect to fulfilling the obligations assumed hereunder.

“Confidential Information” means 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, Customer Data, information about technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, pricing, product and business plans, projections, and marketing data. Confidential Information shall 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 by the receiving Party from any Third Party which lawfully was entitled to have and share the information. Notwithstanding anything herein to the contrary, personally identifiable information about a natural person shall be deemed to be Confidential Information for all purposes.

“Connection Notice” means written notice from AOL that the Transit Service ordered by a TW Company has been installed by AOL pursuant to the applicable Transit Service Order.

“Content” means the digital audio, video, data, text, animation, graphics, photographs, artwork, links, software, applications, other multimedia materials, and combinations of any or all of the foregoing presented in the Customer Site.

“Customer Data” has the meaning set forth in Section 6.1 of the Agreement.

“Customer Domain” means the domain names to be Hosted by AOL on behalf of a TW Company.

“Customer Equipment” has the meaning set forth in Section 3.2 of the Agreement.

“Customer Notification” means a communication from AOL to a TW Company informing such TW Company of AOL’s acceptance of the Transit Service Order.

A-1

“Customer Premises” means the location or locations occupied by the TW Companies or its end users to which Transit Services are to be delivered.

“Customer Site” means all of the architecture and Content for each of the participating TW Company’s website(s) to be located at the Customer Domains.

“Deliverable” means any part of the Services or Technical Support, Documentation, Equipment or any other products or services delivered or made available by AOL to any TW Company under this Agreement.

“Divested Entity” has the meaning set forth in Section 11.3 of the Agreement.

“Documentation” means specifications, descriptions and written instructions, including on-line instructions.

“Dollar” and the sign “$” mean the lawful money of the United States.

“ENMP” has the meaning set forth in section 3.2 of Exhibit B.

“Effective Date” has the meaning set forth in the preamble.

“Employee” means, for the purposes of this Agreement only, any employee or contractor of a TW Company.

“Equipment” has the meaning set forth in Section 3.2 of the Agreement.

“Expiration Date” has the meaning set forth in Section 11.1.

“Fees” means any fee, pricing, or payment of any type under the Agreement, excluding Taxes.

“Force Majeure Event” has the meaning set forth in Section 12.5.

“Host” means to provide the software and hardware infrastructure for and the maintenance, operation and administration of certain TW Companies’ server software applications.

“Implement” means to acquire and install any applicable Equipment and other implementation services agreed upon by the applicable Parties. “Implementation” shall be construed accordingly.

“Include,” “includes”, and “including”, whether or not capitalized, mean “include but are not limited to”, “includes but is not limited to”, and “including but not limited to”, respectively.

“Indemnified Party” has the meaning set forth in Section 10.1 of the Agreement.

“Indemnifying Party” has the meaning set forth in Section 10.1 of the Agreement.

“Information Breach” has the meaning set forth in Section 8.3 of the Agreement.

“Intellectual Property Infringement” has the meaning set forth in Section 10.2 of the Agreement.

“Inter-rack Cabling” means cabling that connects Customer Equipment (i) to electric power sources designated by AOL; (ii) to AOL’s routers and distribution network to the extent necessary as determined by AOL; and (iii) upon a TW Company’s request, to other Customer Equipment located in separate Licensed Spaces in the same room.

“Late Fee” has the meaning set forth in Section 5.2 of the Agreement.

“Launch” means the date on which Implementation has been completed and the Customer Site is launched via the Services.

“Licensed Spaces” means the areas licensed by a TW Company under this Agreement as to the amount of spaces. AOL will determine the rooms and the location in the rooms where the Licensed Space(s) will be located, and AOL will notify the applicable TW Company of the locations.

“Local Loop” means the connection between Customer Premises and the AOL intercity backbone network.

“Losses” has the meaning set forth in Section 10.1 of the Agreement.

“NOC” means network operating center.

“Out-of-Pocket Expenses” means reasonable, verifiable and actual expenses incurred and paid by AOL to a Third Party, but excluding AOL’s overhead costs (or allocations thereof), administrative expenses or other mark-ups

A-2

and excluding expenses which could reasonably have been avoided or which could reasonably be recouped by AOL.

“Party” has the meaning set forth in the recitals.

“Permitted Agents” shall mean attorneys, accountants, auditors, lenders and contractors.

“Person” means any individual, corporation, partnership, joint venture, trust, unincorporated organization, government or other department or agency thereof or any other entity.

“PNMP” has the meaning set forth in Section 3.1 of Exhibit B.

“Residual Knowledge” has the meaning set forth in Section 6.2 of the Agreement.

“Service Level” has the meaning set forth in Exhibit B.

“Service Order” means the service orders executed by the Parties pursuant to the terms of this Agreement.

“Services” means the services, functions and responsibilities of AOL as described in the Agreement (including the Exhibits and Service Orders) as such services, functions and responsibilities may evolve during the Term and may be supplemented and enhanced in accordance with the Agreement.

“Service Outage” has the meaning set forth in Section [this is Mentioned but not defined in Section 3.2 of Exhibit B]

“Service Term” means the term for each Service included on each Service Order.

“SLA” has the meaning set forth in Exhibit B of the Agreement.

“Subsidiary” means an entity in which a Party holds over fifty percent (50%) of the equity or voting interest.

“Systems Service Level” has the meaning set forth in Exhibit B – 3.

“Taxes” has the meaning set forth in Section 5.4 of the Agreement.

“Technical Specifications” means the technical specifications communicated by AOL to a TW Company as supported by the Services.

“Technical Support” has the meaning set forth in Section 3.3 of the Agreement.

“Term” has the meaning set forth in Section 11.1 of the Agreement.

“Third Party” means a Person other than an Employee, AOL Employee, AOL or any TW Company.

“Third Party Software” means software owned by Third Party vendors.

“Transit Facility” or “Transit Facilities” means property owned or leased by AOL and used to deliver the Transit Service, including without limitation terminal and other equipment, wires, lines, ports, routers, switches, channel service units, data service units, cabinets, racks, private rooms and the like.

“Transit Service” means Internet protocol (IP) transit service offered by AOL pursuant to a Transit Service Order. As part of this IP Transit Service, AOL will advertise all the Internet routes/prefixes which collectively form the Internet Routing Table.

“Transit Service Order” means a request for Transit Service submitted by Customer in the form of Exhibit D-1.

“Transit Service Term” means the term for Transit Service included on the Transit Service Order.

“TW Company” has the meaning set forth in the preamble to this Agreement.

“Unauthorized Code” shall mean (i) any virus, Trojan horse, worm, or other software routines designed to permit unauthorized access, or to disable, erase, modify, deactivate or otherwise harm software, hardware, or data or (ii) any back door, time bomb, drop dead device, protect codes, data destruct keys, or other software routines designed to disable a computer program automatically with the passage of time.

“Update” has the meaning set forth in Exhibit C to this Agreement.

“Web Hosting Service Level Identifier” has the meaning set forth in Exhibit B – 8.

A-3

EXHIBIT B – MASTER SERVICE LEVEL AGREEMENT

Unless otherwise defined herein, all capitalized terms shall have the meaning set forth in the Agreement or the specific service level exhibits attached hereto. Unless otherwise noted, all Section references set forth in this Exhibit are to Sections in this Exhibit.

AOL will endeavor to meet the Service Levels and failure to do so shall be remedied in accordance with the terms of this SLA. A “Service Level” is each of the Collocation Network Service Level (as set forth in Exhibit B-1), Backup Service Level (as set forth in Exhibit B-2) and Systems Service Level (as set forth in Exhibit B-3).

The events identified in Sections 3.1, 3.2 and 3.3 below shall be excluded from any calculation of Service Levels.

B-1

The service level attachments checked below are attached to and incorporated in this SLA by reference:

______     Exhibit B-1 Collocation Network Service Level Identifier

______     Exhibit B-2 Backup Service Level Identifier

______     Exhibit B-3 Systems Management Service Level Identifier

B-2

EXHIBIT B-1 – COLLOCATION NETWORK SERVICE LEVEL AGREEMENT

“AOL Network” means the network that consists of the AOL Partner Network and the ATDN, as more fully described in the initial Service Order.

“Excess Latency” means that one or more of the TW Companies each experiences transmission latency in excess of 120 milliseconds between any two points on the AOL U.S. Network.

“Excess Packet Loss” means that one or more of the TW Companies each experiences sustained packet loss in excess of one percent (1%) between any two points on the AOL Network for thirty (30) minutes or more.

“Network Downtime” means any interruption in the connection between Equipment and the Internet, attributable to the AOL Network. For the purposes of this SLA, the demarcation point between the AOL Network and the Internet is the point at which AOL transmits content to a Third Party carrier at an AOL border router port; for the avoidance of doubt, the maintenance of the connection between an AOL border router and a Third Party carrier is the responsibility of such carrier and, as a result, is not in AOL’s direct control.

“Network Uptime” for each calendar month, (a) the difference between Total Time and Network Downtime divided by (b) Total Time, expressed as a percentage.

“Total Time” means, for each calendar month, the product of the number of minutes in a day, multiplied by the number of days in such calendar month.

“Transmission Problem” means Excess Packet Loss and Excess Latency.

B1-1

EXHIBIT B-2 – BACKUP SERVICE LEVEL AGREEMENT

“Backup Network” means a unique dedicated network separate from the AOL Production Network that is used exclusively to perform backups of Customer Data.

“Backup Service” is the offline storage and data restoration service for the TW Companies located in AOL Data Centers.

AOL shall address the Backup Service as follows (the “Backup Service Level”):

B2-1

EXHIBIT B-3 – SYSTEMS MANAGEMENT SERVICE LEVEL AGREEMENT

“ICMP” (Internet Control Message Protocol) means a message control and error-reporting protocol between a host server and a gateway to the Internet. ICMP uses Internet Protocol (IP) datagrams, where the messages are processed by the IP software and are not directly apparent to the application user.

“Systems Downtime” shall be deemed to have commenced when any of the monitored TW Company URL’s and/or physical hosts do not respond to three (3) consecutive ICMP pings done at five (5) minute intervals by AOL’s monitoring software and such non-responsive URL has caused material degradation of the associated Customer Site performance ending the minute that AOL has determined that the Customer Site is functioning without material degradation.

“Systems Uptime” means, for each calendar month, (a) the difference between Total Time and Systems Downtime divided by (b) Total Time, expressed as a percentage.

“Total Time” means, for each calendar month, the product of the number of minutes in a day, multiplied by the number of days in such calendar month.

B3-1

EXHIBIT C – COLLOCATION SERVICE SCHEDULE

Unless otherwise defined herein, all capitalized terms shall have the meaning set forth in the Agreement or the specific exhibits attached hereto. Unless otherwise noted, all Section references set forth in this Exhibit are to Sections in this Exhibit.

C-1

C-2

At any time and at AOL’s sole discretion, AOL may relocate any Equipment, including Customer Equipment, except as set forth in the remainder of this Section 4, to another location within a Collocation Facility or to another AOL designated location upon the lesser of (i) sixty (60) days’ prior written notice to the affected TW Company, or (ii) in the event of an emergency which threatens the equipment in its current location, the amount of notice that may reasonably be given under the circumstances. If the request is at AOL’s sole discretion, then all such costs of relocation (including, for example, reinstalling Customer Equipment) shall be at AOL’s expense and shall be performed so as to not cause any interruption in the Services provided by AOL related to such Equipment. In addition, upon a TW Company’s receipt of the notice required herein, and prior to the move of the Equipment, such TW Company shall have the right to terminate the portion of this Agreement related to the Equipment. Notwithstanding the foregoing, if such relocation is at the request of or is caused by a TW Company, or is necessitated by a Force Majeure event or any other reason beyond AOL’s control, and AOL decides in its sole discretion to perform (or have performed) such relocation, the cost of such relocation will be borne by the affected TW Company. No TW Company shall perform a relocation itself, but it may perform portions of the relocation (such as, for example, reinstalling the Customer Equipment) as AOL reasonably requests.

This Agreement is a services agreement and is not intended to and will not constitute a lease of any real or personal property. Each TW Company acknowledges and agrees that (i) it has been granted only a license to use the Licensed Spaces in accordance with this Agreement; (ii) it has not been granted any real property

C-3

interest in any portion of the Collocation Facilities (including, without limitation, the Licensed Spaces); and (iii) it has no rights as a tenant or otherwise under any real property or landlord/tenant laws, regulations, or ordinances. AOL hereby reserves all rights in and to the Collocation Facilities not specifically granted to a TW Company in this Agreement, including, without limitation, the right (i) of access to and use of the Collocation Facilities for its own use; (ii) to grant additional licenses to other persons for the use of portions of the Collocation Facilities; and (iii) to exercise or grant other rights not inconsistent with the rights granted in this Agreement.

Solely for the purposes of fulfilling its obligations under the terms of this Agreement, and subject to AOL’s confidentiality obligations hereunder, the applicable TW Companies grant to AOL and the AOL Affiliates (in accordance with the terms of this Agreement) a worldwide, limited, revocable license to install, copy, perform, use, and display the Customer Site in accordance with the terms and conditions herein. AOL obtains no rights (including, without limitation, no ownership rights) in the Customer Site other than the limited license explicitly granted herein.

C-4

EXHIBIT C-1 – COLLOCATION POLICIES

This Exhibit C-1 sets forth the procedures, rules, regulations, safety practices or other policies of any type adopted by AOL for the Properties (together, the “Policies”).

C1-1

AOL charges for On-Location Remote Hands service on an hourly basis in increments of  ¹/2 hour rounded to the nearest  ¹/2 hour but with a minimum charge of a  ¹/2 hour (i.e. services under 15 minutes shall be rounded up to  ¹/2 hour). If a TW Company commits in advance under a Service Order to pay for a certain number of hours of On-Location Remote Hands service each month regardless of whether it orders that number of hours of On-Location Remote Hands service each month (“Pre-Committed Hours”), such TW Company will pay a lower hourly rate for On-Location Remote Hands service for such Pre-Committed Hours than the TW Company will pay for hours that are not Pre-Committed Hours.

C1-2

(1) store or place any items in any area of the Collocation Facilities other than in Licensed Spaces (and a TW Company may only store Customer Equipment, racks and cabling provided by AOL and a TW Company’s equipment manuals in the Licensed Spaces);

(2) bring into, or use in, the Licensed Spaces or other areas of the Collocation Facilities any of the following items: food or beverages of any kind, tobacco products, weapons, magnetic devices, illegal substances, photographic equipment, boxes or other cardboard, explosives, chemicals, radioactive materials and any waste, substance or other material that may be dangerous to health or the environment;

(3) take photographs (whether by use of a camera, video camera or otherwise) of any part of the interior or exterior of the Collocation Facilities;

(4) alter, tamper with, adjust, or repair any equipment or property in or around the Collocation Facilities other than the Customer Equipment; For the avoidance of doubt, the TW Company may not alter, tamper with, adjust or repair power cables, data cables or fiber, cable management systems, switches or routers that are not Customer Equipment. Violation of this clause may, in AOL’s sole discretion, be considered a material breach.

(5) erect signs of any type in or on the Collocation Facilities, including, without limitation, in or on the Licensed Spaces, the exterior of the rack cabinets, cubicles or cages or on the sides of open racks;

(6) erect devices of any type on the exterior of the racks or on the sides of open racks;

(7) except to the extent permitted in clause (8), make alterations or improvements to any (exterior or interior) portions of the Collocation Facilities; or

(8) without obtaining the prior written consent of AOL, make alterations or improvements to such TW Company’s Licensed Spaces.

(1) the Collocation Facilities (including, without limitation, the Rooms, Licensed Spaces and the electrical and other building systems of the Collocation Facilities); or

(2) any services offered by personnel of, or property owned, leased or licensed by any of the following: (a) AOL, its owners, parent, officers, directors, employees, Subsidiaries, Affiliates, partners, agents and contractors; (b) the vendors, lessees, licensees, contractors or customers of any of the parties listed in (a) other than the applicable TW Company; and (c) the occupants of the Collocation Facilities (other than the applicable TW Company).

C1-3

Each TW Company utilizing collocation Services under a Service Order will provide AOL with the names, cell phone numbers and e-mail addresses of at least three (3) person(s) AOL may contact at any time in the event of an emergency or otherwise as needed by AOL. AOL will provide such TW Companies with the telephone numbers to call in the event of an emergency.

C1-4

EXHIBIT D – TRANSIT SERVICE SCHEDULE

Unless otherwise defined herein, all capitalized terms shall have the meaning set forth in the Agreement or the specific exhibits attached hereto. Unless otherwise noted, all Section references set forth in this Exhibit are to Sections in this Exhibit.

(A) after termination, expiration or cancellation of the Term of the Agreement or the Service Order in connection with which the Transit Facilities were used; or

(B) for repair, replacement or otherwise as AOL may determine is necessary or desirable, but AOL will use reasonable efforts to minimize disruptions to the Transit Service caused thereby.

D-1

(A) Upon installation of the Transit Service ordered in any Transit Service Order, AOL will deliver to the applicable TW Company a Connection Notice. Upon receipt of the Connection Notice, the applicable TW Company shall have a period of seventy two (72) hours to confirm that the Transit Service has been installed.

(B) In the event a TW Company delivers written notice to AOL within such seventy two (72) hour period that the Transit Service is not installed in accordance with the Transit Service Order, AOL shall promptly remedy the defect or failure specified in such TW Company’s notice. Thereafter, AOL shall again provide the applicable TW Company a Connection Notice with respect to such Transit Service and such TW Company shall thereafter have a period of seventy two (72) hours to confirm that the Transit Service has been properly installed. The procedure set forth in this Section 3.1 shall apply again and successively thereafter until AOL has installed the Transit Service in accordance with the Transit Service Order and the Transit Service is functioning.

(C) Unless a TW Company delivers written notice to AOL within such seventy two (72) hour period following delivery of the applicable Connection Notice that the Transit Service is not installed in accordance with the Transit Service Order, billing shall commence on the applicable Transit Service Commencement Date, regardless of whether such TW Company has procured services from other carriers needed to operate the Transit Service, and regardless of whether such TW Company is otherwise prepared to accept delivery of ordered Transit Service.

D-2

D-3

EXHIBIT D-1 – SAMPLE TRANSIT SERVICE ORDER

All traffic usage of the Transit Service will be billed at the following rates:

TW Company is solely responsible for the arrangement of and all costs associated with access and/or Local Loop charge (including cross connect charges) in order to utilize the Transit Service provided hereunder.

D1-1

EXHIBIT D-2

Calculation of Port Utilization and Billable Traffic

Measurement of Traffic.

Each TW Company shall be charged based on AOL’s determination of such TW Company’s port utilization and billable traffic at the end of each calendar month. Such charges shall be based solely on AOL’s port utilization data. Utilization on each Port shall be calculated as follows:

The 95^th percentile port utilization value of the higher of either Ingress or Egress will be used to determine the applicable TW Company’s monthly charge based on the usage charge set forth in the Transit Service Order.

D2-1

EXHIBIT E – CONTENT DISTRIBUTION ORDER FORM

See attached.

E-1

EXHIBIT F – SERVICE ORDER FORMS

See Attached.

F-1

SCHEDULE 8.3 – NOTICE FOR INFORMATION BREACH

HBO

Michael Gabriel, CIO

917-690-5763

Michael.gabriel@hbo.com

Tom Woodbury

212-512-1722

Tom.woodbury@hbo.com

Time Inc.

Service Desk (24x7) at 212-522-7777.

Mitchell A. Klaif

Information Technology

Time Inc.

1271 Avenue of the Americas

New York, NY 10020

With a copy to:

General Counsel

Time Inc.

1271 Avenue of the Americas

New York, NY 10020

Time Warner Corporate

General Counsel at 212-484-8000

Senior Manager of Application Security at 212-484-6000 and TTS.CSC@turner.com

Turner

Michael D. Hauser

Assistant General Counsel

Turner Broadcasting System, Inc.

One CNN Center

Atlanta, GA 30303-2762

404-878-2627 (direct)

michael.hauser@turner.com

Warner Bros.

Todd Barnum

Vice President of Information Security and Enterprise Architecture

4000 Warner Blvd., Bldg: 168 Rm: 5356

Burbank, CA, 91522

Telephone: 818-954-5822

Fax: 818-977-7136

Gwen Whitson

Sr. Vice-President, Deputy General Counsel

Business & Information Systems

Warner Bros. Entertainment Inc.

Ph.: 818-954-2992

Fax: 818-954-5490

SCHEDULE 8.3

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Dates Referenced Herein   and   Documents Incorporated by Reference

This ‘10-12B/A’ Filing		Date		Other Filings
		3/31/10		10-Q
		12/1/09
Filed on:		11/16/09
		10/22/08
		11/1/06
				List all Filings

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Filing Submission 0001193125-09-235507   –   Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

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