Exhibit 10.44
CONTENT LICENSE AGREEMENT
THIS CONTENT LICENSE AGREEMENT (this "Agreement") is entered into and is
effective as of the Effective Date set forth on Exhibit A attached hereto
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between Yahoo! Inc., a Delaware corporation with offices at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Yahoo"), and ▇▇▇▇▇▇.▇▇▇ Inc., a Delaware
corporation with offices located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Licensor").
The parties agree as follows:
SECTION 1: DEFINITIONS
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1.1 Definitions. Unless otherwise specified, capitalized terms used in this
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Agreement, Exhibit A and its respective Schedules will have the following
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meanings:
"Affiliate" means any company or other entity worldwide, including without
limitation corporations, partnerships, joint ventures, and limited liability
companies, in which Yahoo directly or indirectly holds at least a 20% ownership,
equity, or financial interest.
"Co-Branded Pages" means those pages hosted by Yahoo, co-branded with the Yahoo
Brand Features and the Licensor Brand Features where the Licensor content is the
sole substantive content.
"Enhancements" means any and all derivative works, improvements or modifications
made to or created from the Licensor Content by Licensor.
"Intellectual Property Rights" means any and all rights, titles and interests,
whether foreign or domestic, in and to any and all trade secrets, patents,
copyrights, service marks, trademarks, know-how, or similar intellectual
property rights, as well as any and all moral rights, rights of privacy,
publicity and similar rights of any type under the laws or regulations of any
governmental, regulatory, or judicial authority, foreign or domestic.
"Internet" means the worldwide collection of computers, networks,
infrastructure, connections and devices, whether now known or later developed,
that can access, connect to, communicate with, or transfer data to, from,
through or by way of the worldwide collection of networks (including without
limitation telephone, wireless and third party networks) that is commonly
referred to as the "Internet."
"Licensor Brand Features" means all trademarks, service marks, logos and other
distinctive brand features of Licensor that are used in or relate to the
Licensor Content as listed and described in Exhibit A under the heading "Brand
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Features--Licensor Brand Features."
"Licensor Content" means, collectively, all of the content and updates,
software, and methods and functionality related to such content, provided or
made available to Yahoo or its Affiliates by Licensor pursuant to this
Agreement, and as further described and specified in Exhibit A under the heading
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"Licensor Content--General Description." The term "Licensor Content" includes
without limitation any and all audio and audiovisual materials, data, images,
files, hypertext links, scripts and Enhancements provided or made available to
Yahoo or its Affiliates pursuant to this Agreement, and all Teaser Content.
"Licensor Restricted Companies" means [__________].
"Licensor Site" means the Licensor Internet site that is currently located at
▇▇▇▇://▇▇▇.▇▇▇▇▇▇.▇▇▇ and any other Licensor-branded Internet site mutually
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agreed upon by the parties. The term "Licensor Site" includes any and all
additional, substitution, mirror, derivative, or successor sites or URLs at
which the site may be located during the Term of this Agreement.
"Teaser Content" means any portion of the Licensor Content that (a) is streamed
from or reproduced on or within the Yahoo Properties; (b) consists of a small
excerpt of the Licensor Content (e.g., a headline, thumbnail photograph,
audiovisual clip or summary) which does not change the meaning of the Licensor
Content; and (c) is directly associated, connected or linked to the Licensor
Content from which that Teaser Content was derived or links directly to a page
location on the Licensor Site.
"User" means any individual or entity that uses any Yahoo Property for his, her,
or its own personal or business purposes.
"Yahoo Brand Features" means the trademarks, service marks, logos and other
distinctive brand features of Yahoo and its Affiliates that are used in or
relate to the Yahoo Properties as listed and described in Exhibit A under the
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heading "Brand Features--Yahoo Brand Features."
"Yahoo Restricted Companies" means, collectively: (a) the entities listed in
Exhibit A under the heading "Additional Restricted Companies" as that list may
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be revised by Yahoo from time to time, including all of the listed entities'
parent or controlling companies, successors in interest, subsidiaries,
affiliates, acquisitions, and acquirers during the Term; and (b)
*** Brackets indicate where material has been omitted pursuant to a Confidential
Treatment Request.
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general navigational guides or online services similar to Yahoo (including, but
not limited to, those services operated by
[_________________________________________________________________________] and
their respective successors in interest).
"Yahoo Property" or "Yahoo Properties" means any or all of Yahoo's or its
Affiliates' worldwide properties, software, products, services, sites and pages,
including, without limitation, those accessible in whole or in part through the
Internet, whether presently existing or later developed, that are developed in
whole or in part by or for Yahoo or its Affiliates.
SECTION 2: GRANT OF LICENSES
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2.1 Grant of License by Licensor. Subject to the terms of this Agreement and
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its Exhibits, Licensor grants to Yahoo and its Affiliates during the Term:
(a) Licensor Content. A non-exclusive, worldwide, fully paid up, royalty free
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right and license to use, copy, encode, store, archive, distribute,
transmit, modify, translate, create Teaser Content, render into an audible
format, publicly display and publicly perform the Licensor Content in whole
or in part via any means, including, without limitation, the Internet, in
connection with any Yahoo Property. Yahoo's and its Affiliates' license to
modify the Licensor Content is limited to modifying the Licensor Content to
fit the format and the look-and-feel of the Yahoo Properties.
(b) Licensor Brand Features. A non-exclusive, worldwide, fully paid up, royalty
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free right and license to use, copy, encode, store, archive, distribute,
transmit, render into an audible format, publicly display and publicly
perform the Licensor Brand Features: (1) in connection with the
presentation of the Licensor Content on the Yahoo Properties; and (2) in
connection with the marketing and promotion of the Yahoo Properties.
(c) Right to Sublicense. The right to sublicense the rights and licenses set
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forth in Sections 2.1(a) and 2.1(b) in connection with any mirror site,
derivative site, or distribution arrangement concerning any Yahoo Property,
including without limitation co-branded versions of any Yahoo Property. All
sublicenses granted under this Section 2.1(c) will be subject to the same
restrictions that apply to Yahoo with respect to the use of the Licensor
Content and the Licensor Brand Features.
2.2 Grant of License by Yahoo. Subject to the terms and conditions of this
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Agreement, Yahoo grants to Licensor during the Term a non-exclusive, worldwide,
fully paid right and license to use, copy, encode, store, archive, distribute,
transmit and publicly display the Yahoo Brand Features only in connection with
the Yahoo graphic link specified in Section 4.3.
2.3 No Other Licenses. No licenses are granted by either party except for those
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expressly set forth in this Section 2, and all rights and licenses not expressly
granted in this Section 2 are reserved by the parties. Nothing in this Agreement
restricts, or should be deemed to restrict, either party's right to exercise any
rights or licenses received from any third parties or to grant other or similar
rights or licenses to any third parties.
SECTION 3: YAHOO'S RESPONSIBILITIES
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3.1 Yahoo as Executive Producer. Licensor acknowledges and agrees that Yahoo
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is, and will at all times continue to be, the "executive producer" of the Yahoo
Properties, and Yahoo will be solely responsible for the design, layout, look-
and-feel, posting, and maintenance of any and all aspects of the Yahoo
Properties, including without limitation the display and performance of the
Licensor Content. Neither Yahoo nor any Affiliate has any duty or obligation,
express or implied, to post, host, stream or otherwise include any of the
Licensor Content in any Yahoo Property in the event that Yahoo reasonably
believes that the Licensor Content (a) violates any law or regulation, (b)
violates any third party's rights or (c) does not comply with Yahoo's technical
specificiations or editorial guidelines. Further, nothing in this Agreement
obligates Yahoo to provide Licensor at any time any physical embodiment or
electronic copy of any Licensor Content. From time to time during the term, the
Parties will meet to review the performance of this Agreement to attempt to
optimize the number of User Registrations.
3.2 Advertising Rights. Yahoo has the sole right to sell or license any and all
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advertising and promotional rights with respect to the Yahoo Properties
(including without limitation on all Internet pages of the Yahoo Properties that
contain Licensor Content or during the streaming of the Licensor Content from or
through the Yahoo Properties), and Yahoo will be entitled to retain any and all
revenue generated from any sales or licenses of such advertising or promotional
rights. Nothing in this Agreement obligates or may be deemed to obligate Yahoo
or any Affiliate to sell, license or offer to sell or license any advertising or
promotional rights.
3.3 Licensor Links and Other Attribution. Yahoo agrees to provide the links,
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attributions and copyright and other proprietary notices (including trademark
notices) specified in Exhibit A under the heading "Licensor Links and Other
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Attributions" in connection with the display or performance of the Licensor
Content (excluding any display or performance of Teaser Content) in the
locations specified therein. Notwithstanding the foregoing sentence, Yahoo may
reasonably modify or exclude such links, attributions and notices to the extent
that Yahoo deems such links, attributions and notices are impractical or
inappropriate for the wireless device on which the Licensor Content is intended
to be reproduced, displayed or performed.
*** Brackets indicate where material has been omitted pursuant to a Confidential
Treatment Request.
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3.4 Licensor Restricted Companies. Yahoo agrees that neither it nor any
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Affiliate will place any advertisements by or on behalf of the Licensor
Restricted Companies (i) on the [___________] for the term of this Agreement or
(ii) on the [___________ ] currently located at [________________] for a period
of [_________] from the Effective Date. This restriction does not apply in the
case of non-targeted, "run-of-site" advertisements placed on the Yahoo
Properties, or to links or advertisements in place on the Yahoo Properties prior
to the Effective Date of this Agreement.
SECTION 4: LICENSOR'S RESPONSIBILITIES
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4.1 Licensor Assistance. Licensor will provide reasonable on-going assistance
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to Yahoo with regard to technical, administrative and service-oriented issues
relating to the utilization, encoding, transmission and maintenance of the
Licensor Content, as Yahoo may reasonably request. Licensor will use its best
efforts to ensure that the Licensor Content is timely, accurate, comprehensive
and updated regularly as set forth in this Agreement.
4.2 Updates; Enhancements. During the term of this Agreement, Licensor must
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deliver the Licensor Content and updates to the Licensor Content to Yahoo in
accordance with this Agreement, including, without limitation, any formatting,
delivery and technical specifications. Licensor also must provide Yahoo with
reasonable prior notice of any significant Enhancements that generally affect
the appearance, updating, delivery or other elements of the Licensor Content,
and must make such Enhancements available to Yahoo upon [________________]
terms.
4.3 Yahoo Attribution. During the Term, Licensor must place a "Back to Yahoo"
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graphic link above the fold on those pages of the Licensor Site to which Users
click-through from any link on the Yahoo Properties specified in this Agreement.
The Yahoo graphic link referred to in the previous sentence must (a) be placed
in a manner determined by Licensor subject to approval by Yahoo; (b) contain the
Yahoo Brand Features exactly as provided to Licensor by Yahoo; and (c) directly
link the User back to the location on the Yahoo Properties from which the User
originated or another location on the Yahoo Properties designated by Yahoo.
Licensor agrees that it will not disable the "Back" button on the Internet
browsers of Users who click-through to Licensor Site from any link on the Yahoo
Properties specified in this Agreement or otherwise interfere with the normal
navigational functionality of such Internet browsers. The Parties agree that
Licensor may notify Yahoo in writing with evidence to show that the "Back to
Yahoo" graphic link is negatively impacting the conversion of User
Registrations. In such event, Yahoo may in its discretion waive or modify, in
writing, Licensor's responsibilities under this Section 4.3.
4.4 Exclusion of Yahoo Restricted Companies from Licensor Site. In no event
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may any page on the Licensor Site to which Users click-through from any Licensor
Content or from any Licensor advertisement or promotion on the Yahoo Properties
contain any links, advertising, or promotions for any Yahoo Restricted Company.
This restriction does not apply in the case of non-targeted, "run-of-site"
advertisements placed on the Licensor Site, or to links or advertisements in
place on the Licensor Site prior to the Effective Date of this Agreement,
provided that Licensor agrees that it will not renew, or permit the renewal of,
any obligation in violation of this Section 4.4.
SECTION 5: REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
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5.1 Licensor Representations and Warranties.
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(a) Non-Infringement. Licensor represents and warrants that, as of the
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Effective Date and continuing throughout the Term of this Agreement, the
Licensor Content and Yahoo's or its Affiliates' exercise of any license
granted to them in Section 2.1, does not and will not, infringe the rights
of any third party, including without limitation any Intellectual Property
Rights, rights of publicity, rights of personality, rights of privacy,
rights to payment of royalties, or any other rights of third parties not
specifically identified in this Section 5.1(a); or result in any tort,
injury, damage or harm to any third party.
(b) Pending or Potential Claims. Licensor represents and warrants that, as of
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the Effective Date, Licensor is not aware of any pending or threatened
claims, suits, actions, or charges pertaining to the Licensor Content,
including without limitation any claims or allegations that any or all of
the Licensor Content infringes, violates, or misappropriates the
Intellectual Property Rights of any third party. Licensor agrees that it
will notify Yahoo immediately if Licensor becomes aware of any actual or
potential claims, suits, actions, allegations or charges that could affect
either party's ability to fully perform its duties or to exercise its
rights under this Agreement.
(c) Licensor Content Clearances. Licensor will be solely responsible for the
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acquisition of any and all third party clearances, permissions and licenses
which are necessary in connection with Yahoo's or its Affiliates' exercise
of any license granted them in Section 2.1, including, without limitation,
with respect to the use of any copyrighted or trademarked materials and the
use of any names, likenesses or biographical materials, and for the payment
of any and all applicable guild fees and for any and all residuals,
payments, fees or royalties, if any, payable under any collective
bargaining agreement or otherwise. By way of example, and not limitation,
as between Yahoo and Licensor, Licensor would be responsible to pay any and
all residuals required to be paid under any "Basic Agreement" of the
Director's Guild of America, the Writer's Guild of America, or the Screen
Actor's Guild for "Supplemental Market" showings of the Licensor Content.
*** Brackets indicate where material has been omitted pursuant to a Confidential
Treatment Request.
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5.2 DISCLAIMERS. NONE OF YAHOO, ITS AFFILIATES OR LICENSOR MAKE ANY
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REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, EXCEPT FOR THE EXPRESS
REPRESENTATIONS AND WARRANTIES MADE BY LICENSOR IN SECTION 5.1. YAHOO, ITS
AFFILIATES, AND LICENSOR EXPRESSLY DISCLAIM ANY AND ALL OTHER REPRESENTATIONS
AND WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS AND SERVICES
CONTEMPLATED BY THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED
WARRANTY OF MERCHANTABILITY, IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE, OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF
PERFORMANCE.
SECTION 6: INDEMNIFICATION
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6.1 Licensor's Indemnification Obligation. Licensor must, at its own expense,
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indemnify, defend and hold harmless Yahoo, its Affiliates and each of their
respective officers, directors, employees, representatives, licensees and agents
from and against and in respect of any and all claims, liabilities, allegations,
suits, actions, investigations, judgments, deficiencies, settlements, inquiries,
demands or other proceedings of whatever nature or kind, whether formal or
informal, brought against Yahoo, its Affiliates or any of their respective
officers, directors, employees, representatives, licensees or agents, as well as
from and against and in respect of any and all damages, liabilities, losses,
costs, charges, fees and expenses, including without limitation reasonable legal
fees and expenses, as and when incurred, relating to, based upon, incident to,
arising from, or in connection with (a) the breach by Licensor of any of its
representations or warranties in Section 5.1; (b) any claim or allegation that
the Licensor Content or the Licensor Brand Features infringes in any manner any
Intellectual Property Right or any other right of any third party, is or
contains any material or information that is obscene, defamatory, libelous,
slanderous, or that violates any law or regulation, or violates any rights of
any person or entity, including without limitation rights of publicity, privacy
or personality, or has otherwise resulted in any consumer fraud, product
liability, tort, deceptive trade practice, breach of contract, injury, damage or
harm of any kind to any third party. Licensor agrees that it may not, without
Yahoo's prior written consent, enter into any settlement or compromise of any
claim that results in any admission of liability or wrongdoing on the part of
Yahoo or its Affiliates. It is understood and agreed that neither Yahoo nor any
of its Affiliates intends, or will be required, to edit or review for accuracy
or appropriateness any Licensor Content.
SECTION 7: LIMITATION OF LIABILITY
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7.1 EXCEPT FOR LICENSOR'S INDEMNIFICATION OBLIGATIONS IN SECTION 6.1, UNDER NO
CIRCUMSTANCES WILL LICENSOR, YAHOO, OR ANY AFFILIATE BE LIABLE TO ANOTHER PARTY
FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING
FROM THIS AGREEMENT, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED
PROFITS OR LOST BUSINESS. EXCEPT FOR LICENSOR'S INDEMNIFICATION OBLIGATIONS IN
SECTION 6.1, IN NO EVENT WILL YAHOO, ITS AFFILIATES OR LICENSOR'S, TOTAL
LIABILITY UNDER THIS AGREEMENT EXCEED [________]. FURTHER, NEITHER YAHOO NOR ITS
AFFILIATES WILL BE LIABLE FOR ANY LOSS OF DATA OR ANY INTERRUPTION OF ANY YAHOO
PROPERTY DUE TO ANY CAUSE. The parties agrees that the foregoing represents a
fair allocation of risk hereunder.
SECTION 8: TERM AND TERMINATION
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8.1 Initial Term and Renewals. This Agreement will become effective as of the
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Effective Date and will, unless sooner terminated as provided below or as
otherwise mutually agreed in writing, remain effective for a term of twelve
months (the "Initial Term"). After the Initial Term, this Agreement will
automatically renew for successive additional periods equal to such term length
and obligations (each a "Renewal Term") unless one of the parties delivers to
the other party a written non-renewal notice. In order for such notice to be
effective, it must be received by the other party at least 60 days prior to the
end of the then-current Term. As used in this Agreement, "Term" means the
Initial Term and all Renewal Terms, if any.
8.2 Termination for Cause. Notwithstanding the foregoing, this Agreement may be
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terminated by either party immediately upon notice to the other party if the
other party: (a) has a receiver or similar party appointed for its property,
becomes insolvent, acknowledges its insolvency in any manner, ceases to do
business, makes an assignment for the benefit of its creditors, or files a
petition in bankruptcy; (b) engages in any unlawful business practice related to
that party's performance under the Agreement; or (c) breaches any of its
obligations under this Agreement in any material respect, which breach is not
remedied within 30 days following written notice to the breaching party.
8.3 Effect of Termination. Any termination pursuant to this Section 8 will be
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without any liability or obligation of the terminating party, other than with
respect to any breach of this Agreement prior to termination, and the parties
will immediately cease representing to the public any affiliation between them
in connection with the subject matter of this Agreement. The provisions of
Sections 1, 5, 6, 7, 9, 10 and 11 of this Agreement and this Section 8.3 will
survive the expiration or termination of this Agreement for any reason.
*** Brackets indicate where material has been omitted pursuant to a Confidential
Treatment Request.
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SECTION 9: OWNERSHIP
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9.1 By Licensor. Yahoo acknowledges and agrees that: (a) as between Licensor
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on the one hand, and Yahoo and its Affiliates on the other, Licensor owns all
right, title and interest in the Licensor Content and the Licensor Brand
Features; and (b) nothing in the Agreement confers in Yahoo or an Affiliate any
right of ownership in the Licensor Content or the Licensor Brand Features.
9.2 By Yahoo. Licensor acknowledges and agrees that: (a) as between Licensor on
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the one hand, and Yahoo and its Affiliates on the other, Yahoo or its Affiliates
own all right, title and interest in the Yahoo Properties (except for any
Licensor Content or Licensor Brand Features appearing in the Yahoo Properties)
and the Yahoo Brand Features; and (b) nothing in the Agreement confers in
Licensor any right of ownership in the Yahoo Brand Features. Yahoo and its
Affiliates will own any derivative works or improvements created under the
Agreement that are based upon or that incorporate the Licensor Content,
excluding the Licensor Content itself.
9.3 User Data. With the exception of that information provided as part of the
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Evaluation Tool (as defined in Exhibit A), all information and data provided to
Yahoo by users of the Yahoo properties or otherwise collected by Yahoo relating
to user activity on the Yahoo properties will be retained by and owned solely by
Yahoo. All information and data provided to Licensor on the Licensor Site or
otherwise collected by Licensor relating to user activity on the Licensor Site
will be retained by and owned solely by Licensor. Each party agrees to use such
information only as authorized by the user and will not disclose, sell, license
or otherwise transfer any such user information to any third party or use the
user information for the transmission of "junk mail", "spam", or any other
unsolicited mass distribution of information. Licensor will only email users who
"opt-in" to receive emails from Licensor.
SECTION 10: PUBLIC ANNOUNCEMENTS
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10.1 Public Announcements. The parties agree that a press release will be issued
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regarding this Agreement; provided, however, that the language and timing of
such press release, and any other public announcement or press release about the
existence or terms of this Agreement, must be mutually approved and consented to
in writing in advance by the parties, which approval and consent will not be
unreasonably withheld.
10.2 Confidentiality. The terms and conditions of this Agreement are strictly
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confidential and may not be disclosed by Yahoo and its Affiliates on one hand or
by Licensor on the other to any third party, except to Yahoo's, its Affiliates',
or Licensor's professional advisors who are bound by an obligation of
confidentiality and non-disclosure.
10.3 Confidential Treatment Requests. If Licensor or any successor in interest
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to Licensor intends to file this Agreement with the Securities and Exchange
Commission or any other securities exchange or market, regulatory authority or
similar body, then the filing party must provide to Yahoo, no less than 10
business days before the expected date of the filing, a copy of this Agreement
and any amendments to this Agreement marked to show the items on which the
filing party plans to seek confidential treatment. The filing party must expand
any confidential treatment requests to include those provisions of this
Agreement indicated by Yahoo as terms on which Yahoo requests confidential
treatment. Without limiting what constitutes a material breach under this
Agreement, any failure to comply with this Section 10.3 will be deemed a
material breach of this Agreement by Licensor.
SECTION 11: NOTICE; MISCELLANEOUS PROVISIONS
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11.1 Notices. All notices, requests and other communications called for by
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this Agreement and its Exhibits must be deemed to have been given immediately if
made by telecopy or electronic mail (confirmed by concurrent written notice sent
first class U.S. mail, postage prepaid), if to Yahoo at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, provided that notices sent to Yahoo after July 30, 2001
should be sent to ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Senior Vice President (e-mail: [_____________]), with a copy to its
General Counsel (e-mail: [_____________]), and if to Licensor at the physical
and electronic mail addresses set forth for the Contact specified in Exhibit A,
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or to such other addresses as either party may specify to the other in writing.
Notice by any other means will be deemed made when actually received by the
party to which notice is provided.
11.2 Assignment. This Agreement will bind and inure to the benefit of each
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party's permitted successors and assigns. Neither party may assign this
Agreement, in whole or in part, without the other party's written consent;
provided, however, that either party may assign this Agreement without consent
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in connection with any merger, consolidation, any sale of all or substantially
all of its assets or any other transaction in which more than fifty percent of
its voting securities are transferred, except that Licensor may not, without
Yahoo's consent, engage in such a transaction with a third party that (a) at the
time of the transaction is a Yahoo Restricted Company as defined in Section 1 of
this Agreement, (b) would negatively impact Yahoo's brand (ex. pornography or
gambling) or (c) would not be able to perform the obligations under this
Agreement. Any attempt to assign or transfer this Agreement other than in
accordance with this provision will be null and void.
11.3 Governing Law. This Agreement and its Exhibits will be governed by and
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construed using California law, without giving effect to California conflict of
law provisions or to constructive presumptions favoring either party. The
parties consent to venue and the exclusive jurisdiction of the state and federal
courts located in Santa ▇▇▇▇▇ County, California.
*** Brackets indicate where material has been omitted pursuant to a Confidential
Treatment Request.
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11.4 Relationship of the Parties. The parties acknowledge and agree that they
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are dealing with each other as independent contractors. Neither this Agreement,
nor any terms and conditions contained in this Agreement may be construed as
creating or constituting an employee-employer relationship, a partnership, a
joint venture, a franchise, or an agency between Licensor and Yahoo. Neither
Licensor nor Yahoo may bind the other in contracts with third parties or make
promises or representations on behalf of the other party without a signed
written consent, and employees and agents of one party are not for any purpose
employees or agents of the other. Neither party owes the other party or any
third party any compensation for performing the actions contemplated by this
Agreement, except as expressly set forth in this Agreement. This Agreement is
made for the benefit of Yahoo, its Affiliates and Licensor only, and this
Agreement is not for the benefit of, and was not created for the benefit of, any
third parties.
11.5 Severability. If any provision or part of a provision in this Agreement
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or the Exhibits is held to be illegal, invalid, or unenforceable by a court or
other decision making authority of competent jurisdiction, then the remainder of
the provision will be enforced so as to effect the intention of the parties, and
the validity and enforceability of all other provisions in this Agreement and
its Exhibits will not be affected or impaired.
11.6 No General Waiver. Waiver of any one default will not waive subsequent
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defaults of the same or different kind, and no failure or delay of either party
to exercise or enforce any of its rights under this Agreement will act as a
waiver of those rights.
11.7 Amendments. This Agreement and its Exhibits may be amended only by a
----------
written agreement signed by authorized representatives of both parties.
11.8 Counterparts. This Agreement may be executed in counterparts, each of
------------
which will be deemed an original, but all of which together will constitute one
and the same instrument. Execution and delivery of this Agreement may be
evidenced by facsimile; however, the parties will deliver original execution
copies of this Agreement to one another as soon as practicable following
execution.
11.9 Interpretation of the Agreement and these Terms. The parties desire that
-----------------------------------------------
this Agreement and its Exhibits be construed fairly, according to their terms,
in plain English, without constructive presumptions against the drafting party,
and without reference to the section headings, which are for reference only.
11.10 Complete Agreement. This Agreement, Exhibit A and its respective
------------------ ---------
Schedules are the complete and exclusive agreement between the parties with
respect to the subject matter contemplated by this Agreement, superseding and
replacing any and all prior or contemporaneous agreements, communications, and
understandings, both oral and written, regarding that subject matter.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the date first written above.
YAHOO! INC. LICENSOR: ▇▇▇▇▇▇.▇▇▇ INC.
---------------
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------- ---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------- -------------------------------
Title: VP/6M, Media Title: EVP Business Development
------------------------------- ------------------------------
Date: 4/4/01 Date: 4/4/01
-------------------------------- -------------------------------
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EXHIBIT A
BRAND FEATURES
------------------------------------------------------------------
LICENSOR BRAND FEATURES YAHOO! BRAND
FEATURES
------------------------------------------------------------------
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▇▇▇▇▇▇.▇▇▇ Inc.-related logos "Yahoo!" in stylized logo
format
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LICENSOR CONTENT
-------------------------------------------------------------------------------------------------------------------------------
INITIAL DELIVERY As mutually UPDATE [_] Daily [_] Weekly [_] Monthly [X] Other: to be
DATE: agreed. FREQUENCY: mutually agreed upon ________________________
-------------------------------------------------------------------------------------------------------------------------------
GENERAL DESCRIPTION [_] see Schedule __ (if applicable)
-------------------------------------------------------------------------------------------------------------------------------
. Licensor will supply Yahoo with
- the first page of its evaluation tool (the "Evaluation Tool") which will
be used to develop a program specification for each user who (i) chooses
to complete the first page of the Evaluation Tool on the Co-Branded Pages
of the weight loss area on Yahoo Health and (ii) then chooses to complete
the Evaluation Tool on the Licensor Site. The Evaluation Tool currently
includes the following information fields: age, height, weight, sex and
email address. Any changes to such content will be mutually agreed to by
the parties in writing. Unless the parties otherwise agree in writing,
from the Evaluation Tool, the user will be directed to a splash page
hosted by Yahoo with content determined by Yahoo to notify the user that
the Evaluation Tool content is being provided to Licensor.
- And other mutually agreed upon content that Yahoo desires to use to build
out the Co-Branded Pages.
. Licensor will supply Yahoo with a feed of text-based healthy recipes which
will be distributed within the recipe database on Yahoo Living. The recipe
database will be accessible from the front page of Food on Yahoo Living.
These recipes will be clearly attributed to Licensor on those pages where the
Licensor recipe is the sole substantive content and will provide 3 text links
back to contextually relevant areas on the Licensor Site.
. Licensor will supply Yahoo with a feed of text-based weight loss tips, to be
mutually approved, which will be distributed through the My Yahoo Daily Tips
Module. The "My Yahoo Daily Tips Module" means a module that a user can
choose to add to their personalized My Yahoo page that contains weight loss
tips provided by Licensor, each of which link to a Co-Branded Page with the
full article of the weight loss tips that is designed by Yahoo with the Yahoo
look and feel. These tips will be clearly attributed to Licensor on that page
where the Licensor tip is the sole substantive content and will provide 3
links back to contextually relevant areas on Licensor Site.
--------------------------------------------------------------------------------
FORMATTING, DELIVERY, AND TECHNICAL SPECIFICATIONS [_] see Schedule (if
applicable)
--------------------------------------------------------------------------------
To be mutually agreed to by the parties
--------------------------------------------------------------------------------
OTHER SPECIFICATIONS (optional)
--------------------------------------------------------------------------------
Subject to the terms of the Agreement, the Licensor Content, if distributed by
Yahoo, will appear on Co-Branded Pages within Yahoo Health within a weight loss
area, designated as a "special advertising section" or "sponsored information".
--------------------------------------------------------------------------------
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Exhibit A (continued)
LICENSOR LINKS AND OTHER ATTRIBUTIONS [_] continued on Schedule __ (if ADDITIONAL
applicable) RESTRICTED
COMPANIES
---------------------------------------------------------------------------------------------------------
TYPE LOCATION DESCRIPTION AND SPECIFICATIONS (if hypertext linked, --------------
specify destination)
---------------------------------------------------------------------------------------------------------
TEXT OR Co-Branded Branded mast-head hotlinks of Licensor Brand Features which
GRAPHIC: Pages in Yahoo! will be no larger than [___] pixels wide by [___] pixels high
Health and will have a file size no greater than [___]K.
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Co-Branded text links on Co-Branded Pages in Yahoo Health to related
Pages content on the Licensor' website, to be mutually agreed upon.
---------------------------------------------------------------------------------------------------------
Co-Branded Branded hotlinks in body of recipe on Co-Branded Pages in
Pages in Yahoo! Living; that are no larger than 88 pixels wide by 33 pixels
Living high, will have a file size no greater than 2K and will contain
no animation.
---------------------------------------------------------------------------------------------------------
AUDIO: --------------
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ADDITIONAL TERMS [_] continued on Schedule __ (if applicable)
--------------------------------------------------------------------------------
. Licensor agrees to, simultaneous with the execution of this Agreement, enter
into an Insertion Order for a [_________________________] media program to
run on the Yahoo Properties over the course of the Term. The advertising
terms and conditions are attached here to as Exhibit B, and said media
program will be subject to the [___________________________ ] outlined in
Exhibit B-1
. Licensor will have a one-time right to terminate this Agreement for
[________] on the date that is [_________] from the Effective Date; provided
that (a) Licensor must provide written notice to Yahoo on or before the date
that is [__________ ] from the Effective Date and (b) the termination will
become effective [__________ ] after the date that is [__________] from the
Effective Date. For clarity, this Agreement may only be terminated under
this section if Yahoo receives Licensor's notice of termination on or before
the date that is [_______] from the Effective Date; notices received after
that date will be null and void. Notwithstanding the fact that the notice of
termination may be given before the [___________], the effective date of
termination will be [_____________] following the Effective Date.
--------------------------------------------------------------------------------
*** Brackets indicate where material has been omitted pursuant to a Confidential
Treatment Request.
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EXHIBIT B
STANDARD TERMS AND CONDITIONS FOR ADVERTISING AND PROMOTION PROGRAMS
Thank you for advertising with Yahoo! Inc. ("Yahoo")! The following terms and
conditions (the "Standard Terms") together with the insertion order to which
these Standard Terms are attached (the "Insertion Order") and Exhibit B-1
constitute the complete and entire expression of the agreement (this
"Agreement") between you (the "Advertiser") and Yahoo relating to the
advertising and promotion described on the Insertion Order.
1. Placement of Ad Units. Yahoo agrees to place (or, if applicable, distribute)
the advertising units ("Ad Units") as provided in the Insertion Order. All Ad
Units must comply with Yahoo's standard advertising specifications, including
those set forth at ▇▇▇▇://▇▇▇▇.▇▇▇▇▇.▇▇▇/▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇/. All such
specifications are subject to change in Yahoo's sole discretion. All Ad Units
will be served by Yahoo and will link directly to the Co-Branded Pages as
defined in the Content License Agreement entered into between the parties on the
date of this Agreement (the "Content License Agreement") or the front page of
Advertiser's Site (currently located at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇.▇▇▇), unless otherwise
---------------------
agreed to by Yahoo in writing. In the event of Advertiser's material breach of
this Agreement, Yahoo will have the right to suspend performance of its
obligations under this Agreement and any other agreement between the parties,
until such breach is fully remedied.
2. Terms of Payment. Advertiser agrees to pay Yahoo in accordance with the terms
and schedule set forth in Exhibit B-1. All payments are non-refundable and non-
creditable and will be made by Advertiser via company check to Yahoo's main
account pursuant to the instructions set forth in Exhibit B-1. Amounts not paid
on or before the tenth business day following each due date will bear interest
at the rate of one percent (1%) per month (or the highest rate permitted by law,
if less). Notwithstanding the foregoing, any failure by Advertiser to make
payments as specified in Exhibit B-1 will constitute a material breach of this
Agreement. Advertiser will be responsible for all reasonable expenses (including
attorneys' fees) incurred by Yahoo in collecting any overdue payments.
3. Positioning. Except as otherwise expressly provided in the Insertion Order,
the manner in which an Ad Unit is positioned within any Yahoo property
(including, without limitation, its timing) will be at the sole discretion of
Yahoo. Notwithstanding anything to the contrary in the Insertion Order, Yahoo
may, in its sole discretion, replace any keyword or category (or subcategory)
within the Insertion Order for comparable inventory in the event that (i) Yahoo
believes such keyword, category or subcategory to be a trademark, trade name,
company name, product name or brand name belonging to or claimed by a third
party, or (ii) Yahoo modifies the Yahoo property to which such keyword, category
or subcategory relates. Further, Yahoo reserves the right, at any time, to
redesign or modify the organization, structure, specifications, "look and feel,"
navigation, guidelines and other elements of any Yahoo property, including those
on which an Ad Unit is displayed or delivered.
4. Usage Statistics. Notwithstanding anything to the contrary in the Insertion
Order, Yahoo makes no guarantees with respect to usage statistics, levels of
impressions, Page Views, Click-Throughs or other measure for any Ad Unit
(collectively, "Ad Unit Measurements") except as set forth in Exhibit B-1
"Click-Through" means a user selecting or clicking on an Ad Unit as solely
measured by Yahoo's advertising reporting system. "Page View" means a user's
request for a page on a Yahoo property as solely measured by Yahoo's advertising
reporting system. Advertiser acknowledges and agrees that Ad Unit Measurement
statistics provided by Yahoo are the official, definitive measurements of
Yahoo's performance on any such delivery obligations. The processes and
technology used to generate such statistics have been certified and audited by
an independent agency. No other measurements or usage statistics (including
those of Advertiser or any third party) will be applicable to this Agreement.
Advertiser understands that multiple Ad Units on a page requested by a user's
browser, could result in multiple Ad Unit Measurements being generated.
5. Term/Termination. The term of this Agreement will be as set forth in the
Content License Agreement (the "Term"). Notwithstanding the foregoing, this
Agreement may be terminated at any time by either party immediately upon written
notice to the other party if the other party (i) becomes insolvent, (ii) files a
petition in bankruptcy, or (iii) makes an assignment for the benefit of its
creditors. In addition, this Agreement may be terminated by either party on
thirty (30) days written notice to the other party of such other party's
material breach of any of its obligations under this Agreement (fifteen (15)
days in the event that such breach is a failure to make payment)), which breach
is not remedied within such thirty (30) day period.
6. No Assignment or Resale of Ad Space. Advertiser may not resell, assign or
transfer any of its rights or obligations hereunder, and any attempt to resell,
assign or transfer such rights or obligations without Yahoo's prior written
approval will be null and void and a material breach of this Agreement.
Notwithstanding the foregoing, either party may assign this Agreement to an
entity who acquires substantially all of the stock or assets of such party;
provided that written consent will be required in the event that the non-
assigning party reasonably determines that the assignee will not have sufficient
capital or assets to perform its obligations hereunder, or that the assignee is
a competitor of the non-assigning party. All
*** Brackets indicate where material has been omitted pursuant to a Confidential
Treatment Request.
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7. terms and provisions of this Agreement will be binding upon and inure to the
benefit of the parties hereto and their respective permitted transferees,
successors and assigns.
8. [__________]. In the event that: (i) Yahoo fails to post an Ad Unit in
accordance with this Agreement, or [__________________] set forth in Exhibit B-1
by the end of the Term (subject to a [____________] pursuant to Section 10), or
(ii) an Ad Unit fails to appear or function as provided in this Agreement for
any reason, technical or otherwise, the sole liability of Yahoo to Advertiser
will be limited to, at Yahoo's sole discretion, (x) [_______________________],
(y) placement of the Ad Unit at a later time in aposition, or (z) extension of
the Term [____________________]. Notwithstanding the foregoing, Yahoo will have
no liability for any failure or delay resulting from the failure or delay of
Advertiser in performing any of its obligations hereunder or any governmental
action, fire, flood, insurrection, earthquake, power failure, riot, explosion,
embargo, strikes whether legal or illegal, labor or material shortage,
transportation interruption of any kind, work slowdown or any other condition
beyond the control of Yahoo affecting production, function, posting or delivery
of the Ad Units in any manner. Notwithstanding the foregoing, Yahoo will make
[_______________] efforts to deliver in accordance with section B-1 of this
Agreement, and nothing in this paragraph will affect Advertiser's right to
[__________] based on the [____________________] in accordance with Exhibit B-1.
9. Advertisers Representations; Indemnification. Advertiser represents and
warrants that it has all rights and licenses to perform its obligations
hereunder and that Yahoo's posting of the Ad Units will not infringe the rights
of any third party or violate any law or regulation. Advertiser expressly
acknowledges that Yahoo accepts the Ad Units in reliance on the foregoing
representations and warranties. In consideration of Yahoo's posting of the Ad
Units, Advertiser agrees, at its own expense, to indemnify, defend and hold
harmless Yahoo and its affiliates, and their respective employees,
representatives and agents, against any and all expenses and losses of any kind
(including reasonable attorneys' fees and costs) incurred by Yahoo in connection
with any claims, administrative proceedings or criminal investigations of any
kind arising in any manner from the Ad Unit, any material, product or service of
Advertiser to which users can link through the Ad Unit (including without
limitation, any claim of trademark, patent or copyright infringement,
defamation, breach of confidentiality, right of publicity or privacy violation,
false or deceptive advertising or sales practices) or a breach by Advertiser of
any provision of this Agreement.
10. LIMITATION OF LIABILITY. EXCEPT AS PROVIDED IN SECTION 8, UNDER NO
CIRCUMSTANCES WILL ADVERTISER, YAHOO OR ANY AFFILIATE OF EITHER PARTY BE LIABLE
TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR
EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, IN
ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR POSTING OF THE AD
UNIT(S), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Provision of Advertising Materials. Advertiser will provide all materials
for the Ad Unit, including without limitation Licensor Content, in accordance
with Yahoo's policies in effect from time to time, including (without
limitation) the manner of transmission to Yahoo and the lead-time prior to
posting of the Ad Unit. Notwithstanding anything to the contrary in this
Agreement, Yahoo will have no obligation to post any Ad Unit that is not in
accordance with such policies. Advertiser hereby grants to Yahoo a non-
exclusive, worldwide, fully paid license to use, reproduce and display the Ad
Unit (and the contents, trademarks and brand features contained therein) in
accordance herewith. In the event that Advertiser fails to (i) provide Yahoo
with approved materials necessary for Yahoo to activate an advertisement
placement at least five (5) business days prior to the scheduled activation date
of such placement, or (ii) design and operate the Advertiser Site in accordance
with Section 15, then, if the Advertiser does not provide the materials within
three days thereafter, (x) the number of [__________________] in Exhibit B-1
will be [______________] on a daily basis until Advertiser remedies such failure
(e.g. if Yahoo committed to [__________________] over a one year period, then
Yahoo's [______________] obligation would be reduced by [_____________] per day)
and (y) all payments made or due hereunder will be converted to a non-
refundable, non-creditable holding fee for making the applicable advertising
inventory available to Advertiser. For clarity, in no event will Advertiser be
entitled to a refund of any payments made hereunder.
12. Right to Reject Ad Unit. All contents of Ad Units are subject to Yahoo's
reasonable approval. Yahoo reserves the right to reject or cancel any Ad Unit,
insertion order, URL link, space reservation or position commitment, at any
time, in its reasonable discretion (including the belief by Yahoo that placement
of an Ad Unit, URL link, etc., may subject Yahoo to criminal or civil
liability).
13. User Data. . With the exception of that information provided as part of the
Evaluation Tool (as described in Exhibit A of the Content License Agreement),
all information and data provided to Yahoo by users of the Yahoo properties or
otherwise collected by Yahoo relating to user activity on the Yahoo properties
will be retained by and owned solely by Yahoo. All information and data provided
to Advertiser on the Advertiser Site or otherwise collected by Advertiser
relating to user activity on the Advertiser Site will be retained by and owned
solely by Advertiser. Each party agrees to use such information only as
authorized by the user and will not disclose, sell, license or otherwise
transfer any such user information to any third party or use the user
information for the transmission of "junk mail", "spam", or any other
*** Brackets indicate where material has been omitted pursuant to a Confidential
Treatment Request.
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14. unsolicited mass distribution of information. Advertiser will not email
users unless the user has expressly opted-in to receive such emails. Advertiser
will ensure that all information provided by users of the Advertiser Site is
maintained, accessed and transmitted in a secure environment and in compliance
with its privacy policy (which will be posted prominently on any area in which
personally identifiable or financial information is collected). Advertiser
represents and warrants that (i) if any user requests or if Yahoo requests at
the request of any user that Advertiser remove any personally identifiable
information ("User Data") relating to such user from Advertiser's database and
other records, then Advertiser will promptly remove such User Data from its
database and other records, and (ii) it will not resell any User Data.
Advertiser agrees that the indemnification obligation set forth in Section 8
above includes any and all losses or damages incurred by Yahoo in connection
with a breach by Advertiser of this Section 12.
13. Link Back. During the Term, Advertiser must place a "Back to Yahoo"
graphic link above the fold on those pages of the Advertiser Site to which users
click-through from an Ad Unit. The Yahoo graphic link referred to in the
previous sentence must (i) be placed in a manner determined by Advertiser
subject to approval by Yahoo; (ii) contain the Yahoo name and logo exactly as
provided to Advertiser by Yahoo; (iii) be no less than [_____] pixels wide and
[_____] pixels high, and (iv) directly link the user back to the page designated
by Yahoo on the Yahoo Properties without launching additional Internet browser
windows. Yahoo hereby grants to Advertiser a non-exclusive, worldwide, fully
paid license to use, reproduce and display the Yahoo name and logo to indicate
the location of the Yahoo graphic link as set forth herein. Advertiser
acknowledges Yahoo's ownership of all right, title and interest in and to the
Yahoo name and logo other than the limited right to use provided in this
Section. Advertiser agrees that it will not disable the "Back" button on the
Internet browsers of users who click-through from an Ad Unit or otherwise
interfere with the normal navigational functionality of such Internet browsers.
The Parties agree that Advertiser may notify Yahoo in writing with evidence to
show that the "Back to Yahoo" graphic link is negatively impacting the
conversion of User Registrations. In such event, Yahoo may in its discretion
waive or modify, in writing, Licensor's responsibilities under this Section 13.
14. Restricted Companies. In no event will any page on the Advertiser Site to
which Users click-through from any link placed by Yahoo in connection with this
Agreement, including, without limitation, the Ad Units, contain graphic or
textual hyperlinks, promotion or advertising banners relating to general
navigational guides or online services similar to Yahoo (including, but not
limited to, those services operated by
[______________________________________________________________________________]
and their respective successors). This restriction does not apply in the case of
non-targeted, "run-of-site" advertisements placed on the Advertiser Site, or to
links or advertisements in place on the Advertiser Site prior to the Effective
Date of this Agreement, provided that Advertiser agrees that it will not renew,
or permit the renewal of, any obligation in violation of this Section 14.
15. Performance Requirements. The Advertiser Site will comply with the scale,
speed and performance requirements mutually agreed upon by the parties and will
(i) handle no less than [________________] simultaneous requests, (ii) have a
minimum [___] uptime and maximum [___] downtime (except for planned downtime
which may be required for system enhancements, upgrades and preventative
maintenance), and (iii) initiate data transfers within fewer than [_________]
seconds, on average, of request. Advertiser will provide customer service
support for all inquiries regarding the products and services offered on the
Advertiser Site. Advertiser will provide, and publicize on the Advertiser Site,
the following customer service resources: (x) an 800/888 phone number as a
dedicated customer service line on the help pages of the Advertiser Site, (y) an
email address and other contact information, and (z) conspicuous
information/guidelines on Advertiser's refund policy. Without limitation,
failure by Advertiser to substantially meet any of these criteria for customer
service will be a material breach of this Agreement.
16. Insurance. Advertiser agrees that it will maintain insurance with a
carrier that is reasonably acceptable by Yahoo and with coverage for commercial
general liability and errors and omissions of at least [__________________] per
occurrence. Advertiser will name Yahoo as an additional insured on such
insurance and will provide evidence of such insurance to Yahoo within ten (10)
days of executing this Agreement. Such insurance policy will not be cancelled
or modified without Yahoo's prior written consent, which will not be
unreasonably withheld.
17. Promotions. In the event an Ad Unit contains a contest, sweepstake or other
promotional offer (collectively a "Promotion"), it will be subject to Yahoo's
approval (which approval will not be unreasonably withheld) and will be
conducted in accordance with Yahoo's then-current terms with respect to such
Promotion. Notwithstanding Yahoo's approval or assistance in connection with a
Promotion, Advertiser will be responsible for the content of such Promotion
(including but not limited to the official rules governing such Promotion) and
the acquisition and fulfillment of all prizes in connection with such Promotion
unless otherwise agreed by the parties in writing. The parties expressly
understand and agree that the approval of the official rules or regulations for
any Promotion by Yahoo will not constitute an opinion as to the legal
appropriateness, accuracy or adequacy of such rules or their manner of use.
*** Brackets indicate where material has been omitted pursuant to a Confidential
Treatment Request.
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18. Miscellaneous. This Agreement (i) will be governed by and construed in
accordance with, the laws of the State of California, without giving effect to
principles of conflicts of law, (ii) may be amended only by a written agreement
executed by an authorized representative of each party, and (iii) supersedes any
and all other agreements, whether written or oral, between the parties
pertaining to the subject matter hereof. Any claims, legal proceeding or
litigation arising in connection with this Agreement shall be brought solely in
the federal courts in the Northern District of California or the state courts in
the County of Santa Clara, California, and the parties consent to the
jurisdiction of such courts. No conditions other than those set forth in this
Agreement will be binding on Yahoo unless expressly agreed to in writing by
Yahoo. In the event of any inconsistency between Exhibits B-1 and these Standard
Terms, these Standard Terms will control.
19. Confidentiality. The terms and conditions of this Agreement will be
considered confidential and will not be disclosed to any third parties except to
such party's accountants, attorneys, or except as otherwise required by law. The
parties agree that a press release will be issued regarding this Agreement;
provided, however, that the language and timing of such press release, and any
other public announcement or press release about the existence or terms of this
Agreement, must be mutually approved and consented to in writing in advance by
the parties, which approval and consent will not be unreasonably withheld.
Notwithstanding the foregoing, Advertiser will make no public announcement
(including, but not limited to, through any press release) regarding the
existence or content of this Agreement without Yahoo's prior written approval,
which approval will not be unreasonably withheld. If this Agreement or any of
its terms must be disclosed by Advertiser under any law, rule or regulation,
Advertiser will (i) give written notice of the intended disclosure to Yahoo at
least five (5) days in advance of the date of disclosure, (ii) redact portions
of this Agreement to the fullest extent permitted under any applicable laws,
rules and regulations, and (iii) submit a request, to be agreed upon by Yahoo,
that such portions and other provisions of this Agreement requested by Yahoo
receive confidential treatment under the laws, rules and regulations of the body
or tribunal to which disclosure is being made 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.
20. Third Party Ad Serving. The parties agree that no third party may serve any
Ad Unit to any Yahoo property without the prior written consent of Yahoo, which
may be withheld for any reason or no reason. If Yahoo has so consented to
Advertiser's use of a third party ad server ("Third Party Server") in connection
with the Insertion Order, this Section 20 will apply. The Advertiser will post
each Ad Unit to a staging area and will notify Yahoo of such posting at least
four (4) business days prior to the date on which Third Party Server is
scheduled to serve such Ad Unit to a Yahoo property. Such Ad Unit must be
reviewed and approved in writing by Yahoo before it can be served by Third Party
Server. Yahoo reserves the right to reject any Ad Unit or any element thereof in
accordance with Sections 10 and 11 above. The Advertiser will post all
scheduling changes, new target URLs, new HTML specifications, new graphics and
all other new or revised Ad Units ("Revisions") to a staging area and will
notify Yahoo of such posting at least (4) business days prior to the date
Advertiser wishes such Revisions to take effect. Revisions will not be
implemented until approved by Yahoo in writing, which approval may be withheld
at Yahoo's sole discretion. If Advertiser discovers that an Ad Unit has been
served to a Yahoo property (by Advertiser, Third Party Server or otherwise) in
violation of this Agreement, Advertiser will immediately notify Yahoo of the
violation (along with a written explanation) and remove the Ad Unit from its
placement or rotation on the Yahoo properties. Nothing in this Section 20 will
limit any of Yahoo's rights or remedies in the event of such breach. In the
event Yahoo exercises its right to cancel an Ad Unit in accordance with these
Standard Terms, Yahoo will notify Advertiser in writing. The Advertiser must
cause the Ad Unit to be removed from the Yahoo properties and from its
advertising rotation no later than four (4) hours after written notification by
Yahoo.
These Standard Terms and this Agreement have been executed by the duly
authorized representatives of the parties, and are effective as of the date of
the Insertion Order.
YAHOO! INC. ADVERTISER: ▇▇▇▇▇▇.▇▇▇ INC.
---------------
By: /s/ By: /s/
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Name: ▇▇▇▇▇▇▇▇▇ Maisand-▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Director Title: EVP Business Development
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Attn: Director Attn: EVP Business Development
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇ e-mail: ▇▇▇@▇▇▇▇▇▇.▇▇▇
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CLAST-12
EXHIBIT B-1
AD UNIT MEASUREMENTS AND COMPENSATION
[_______________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________]
2. Audit Rights. Advertiser will keep and maintain complete and accurate
accounting and sales books and records in accordance with generally accepted
methods of accounting for all [________________] which are the subject of this
Section for two (2) years after the last payment is due under this Section.
Yahoo will have the right, upon reasonable notice and at its own expense, no
more than once per year, to have a certified independent accountant inspect and
audit such books and records that are relevant to the payments set out in this
Section (and those books and records of any affiliate and subsidiary of
Advertiser that may be relevant to such payments), provided that in the event
that any audit reveals an underpayment of more than [__________] of the amounts
due Yahoo for any calendar quarter, Advertiser will reimburse the cost of such
audit. If the examination discloses a discrepancy, Advertiser will pay Yahoo the
amount of any underpayment within fourteen (14) days, along with interest for
the period from the original due date to the actual payment date thereon
calculated at the lessor rate of (i) one and one-half percent (1.5%) per month
or (ii) the maximum amount allowed by law.
COMPENSATION
1. Total Cash Payments. Advertiser will pay Yahoo a total of
[___________________] in accordance with the schedule below. In addition,
Advertiser will pay Yahoo [______________________] as a set up, design and
implementation fee for the first six months of this Agreement and an
additional [________] consultation and placement fee for the second six month
period of this Agreement. Finally, Advertiser will pay Yahoo an ongoing
maintenance and administrative fee totalling [_________]. The payment
schedule of such fee shall be [________] payable in each of the first two
quarters after effective date and [_________] in each of the third and fourth
quarters from effective date.
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PAYMENT AMOUNT DATE
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[________] On or before the Effective Date
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[________] On or before each of the first two
quarters
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[________] To be paid quarterly over the course
of the Term within thirty (30) days of
written invoice from
Yahoo[_____________________________
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
__________]
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[_________] On or before 6 months from the
Effective Date
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[_________] On or before each of the last two
quarters
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*** Brakets indicate where material has been omitted pursuant to a Confidential
Treatment Request.
CLAST-14 [LOGO]
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Payment Schedule:
Upon signing...........................................................................[________]
June 30, 2001..........[____________________] at a price of [__________________].......[________]
.June 30, 2001.........................................................................[________]
.September 30, 2001....[_____________________] at a price of [___________________].....[________]
October 1, 2001........................................................................[________]
December 31, 2001......[_____________________] at a price of [___________________].....[________]
December 31, 2001......................................................................[________]
March 31, 2002.........[_____________________] at a price of [____________________]....[________]
PAYMENT INSTRUCTIONS
Yahoo! Inc.
Attn: ▇▇▇▇▇ ▇▇ - A/R
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After July 30, 2001:
Yahoo! Inc.
Attn: ▇▇▇▇▇ ▇▇ - A/R
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*** Brakets indicate where material has been omitted pursuant to a Confidential
Treatment Request.
CLAST-14 [LOGO]
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