Common use of Exceptions to Exclusivity Clause in Contracts

Exceptions to Exclusivity. Notwithstanding anything to the contrary in Section 3.1 (and without limiting any actions which may be taken by AOL without violation of MP's rights hereunder): 3.2.1 AOL may undertake activities or perform duties pursuant to arrangements with third parties that are in existence as of the Effective Date; provided, however, in this regard: (a) AOL hereby represents and warrants to MP that to the knowledge of AOL senior executives (i.e., employees above the level of vice president) and any vice president of any Exclusive Service that has been actively involved in the negotiation of this Agreement (i) as of the Effective Date AOL has no existing arrangements exceeding $1,000,000 in value that expressly grant rights to any person or entity to sell and promote Energy Products on the Exclusive Services; (ii) no person or entity selling or promoting products or services on any of the Exclusive Services pursuant to an agreement exceeding $1,000,000 in value is currently offering for sale or otherwise promoting Energy Products on the Exclusive Services; and (iii) as of the Effective Date, AOL does not have a selling or promotional arrangement exceeding $1,000,000 in value in connection with any of the Exclusive Services with any MP Competitor listed on Exhibit H; provided that if AOL discovers that it has breached the representation of (iii) due to an existing agreement with an MP Competitor for the sale or promotion of products that are not Exclusive MP Products, then such breach may be cured by AOL by updating its representation, and no damages would result from such breach. (b) AOL shall not prompt or encourage any person or entity currently promoting products or services on the Exclusive Services pursuant to an existing agreement with AOL (as of the Effective Date) to sell or promote any Energy Products on any of the Exclusive Services. (c) In the event any person or entity currently promoting products or services on any of the Exclusive Services pursuant to any existing agreement with AOL as of the Effective Date (other than agreements otherwise expressly permitted hereunder) were to sell or promote any Exclusive MP Products on the Exclusive Services under the terms of that existing agreement, ***. If such dispute is referred to arbitration, ***. Any damages awarded under this Section 3.2.1(c) shall be MP's sole remedy with respect to this Section 3.2.1(c). 3.2.2 AOL may undertake activities or perform duties pursuant to arrangements with third parties that AOL becomes subject to as a result of a Change of Control of AOL, or a merger or acquisition by AOL; provided that if, as a result of Change of Control, merger or acquisition, AOL becomes subject to an arrangement whereby it would promote or sell any Exclusive MP Products or promote any MP Competitor in conflict with the terms of this Agreement (other than this Section 3.2.2), then ***. 3.2.3 AOL may create contextual links or editorial commentary on the Exclusive Services relating to any third party marketer of an Exclusive MP Product, or provide functionality, links and/or tools on the Exclusive Services to any third party marketer of any Exclusive MP Products; provided that in each case AOL is not compensated by such third party marketer in any manner for such contextual links, editorial commentary, functionality, links or tools, except as otherwise provided elsewhere herein and specifically with respect to Section 3.3.5. 3.2.4 AOL may provide on the Exclusive Services links to providers who are not MP Competitors (e.g., New York Times, Motley Fool, People Magazine), whose linked screens may have promotions of, or links to promotions of, an Exclusive MP Product or an MP Competitor. 3.2.5 AOL may promote on the Exclusive Services the products and services of any third party who is not an MP Competitor; provided that, such promotions on the Exclusive Services do not expressly promote any Energy Products.