Exhibit 10.2
CONTENT LICENSE AGREEMENT
THIS CONTENT LICENSE AGREEMENT (the "AGREEMENT") is made as of this
19th day of February, 2000 (the "EFFECTIVE DATE") between YAHOO! INC., a
Delaware corporation, with offices at 0000 Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxx, XX
00000 ("YAHOO"), and XxxxXxx.xxx and its parent company Xxxxxxxxxx.xxx, Inc.
("VN") ("LICENSOR"), a Delaware corporation, with offices at 000 Xxxx Xxxxxxxxxx
Xxxx, Xxxxx X, Xxxx Xxxxx, Xxxxx 00000.
In consideration of the mutual promises contained herein, the parties agree as
follows:
SECTION 1: DEFINITIONS.
Unless otherwise specified, capitalized terms used in this Agreement shall have
the meanings attributed to them in EXHIBIT A hereto.
SECTION 2: GRANT OF LICENSES.
2.1 GRANT OF LICENSES. Subject to the terms and conditions of this Agreement,
Licensor hereby grants to Yahoo, under Licensor's Intellectual Property Rights:
(a) A non-exclusive, worldwide license to use, modify, reproduce,
distribute, display and transmit the Licensor Content in electronic
form via the Internet and third party networks (including, without
limitation, telephone and wireless networks) in connection with Yahoo
Properties, and to permit users of the Yahoo Properties to download and
print the Licensor Content. Yahoo's license to modify the Licensor
content shall be limited to modifying the Licensor Content to fit the
format and look and feel of the Yahoo Property.
(a) A non-exclusive, worldwide, fully paid license to use, reproduce and
display the Licensor's Brand Features: (i) in connection with the
presentation of the Licensor Content on the Content Pages in the Yahoo
Properties; and (ii) in connection with the marketing and promotion of
the Yahoo Properties.
(b) Yahoo shall be entitled to sublicense the rights set forth in this
Section 2.1 (1) to its Affiliates only for inclusion in Yahoo
Properties, and (2) in connection with any mirror site, derivative
site, or distribution arrangement concerning a Yahoo Property.
2.2 Subject to the terms and conditions of this Agreement, Yahoo hereby grants
to Licensor, under Yahoo's Intellectual Property Rights, a non-exclusive
worldwide, fully paid license to use, reproduce and display the Yahoo Brand
Features only as explicitly set forth in EXHIBIT D.
SECTION 3: DELIVERY OF LICENSOR CONTENT; ADVERTISING REVENUE.
3.1 YAHOO'S RESPONSIBILITIES. In addition to any responsibilities that may be
set forth in EXHIBIT C, Yahoo will be responsible for the design, layout,
posting, and maintenance of the Content Pages. In no event is Yahoo under any
obligation, express or implied, to post or otherwise include any of the Licensor
Content in any Yahoo Property, including without limitation, in any Content
Pages.
3.2 LICENSOR ASSISTANCE. In addition to any responsibilities that may be set
forth in EXHIBIT C, Licensor will provide on-going assistance to Yahoo with
regard to technical, administrative and service-oriented issues relating to the
utilization, transmission and maintenance of the Licensor Content, as Yahoo may
reasonably request. Licensor will use its reasonable commercial efforts to
ensure that the Licensor Content is accurate, comprehensive and updated
regularly as set forth in EXHIBIT C.
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3.3 ADVERTISING RIGHTS. Yahoo shall have the sole right to sell and retain all
Advertising Rights with respect to Content Pages.
3.4 NOTICES. Yahoo will not alter or impair any acknowledgment of copyright or
other Intellectual Property Rights of Licensor that may appear in the Licensor
Content and the Licensor Brand Features, including all copyright, trademark and
similar notices that Licensor may reasonably request.
3.5 LINKS. The parties will maintain the hypertext links specified in EXHIBIT D.
SECTION 4: DELIVERY OF LICENSOR CONTENT.
During the term of this Agreement, Licensor shall deliver updates of the
Licensor Content to Yahoo in accordance with the Delivery Specifications set
forth in EXHIBIT C. Licensor also shall provide Yahoo with [confidential
information filed separately with the SEC] prior notice of any significant
Enhancements that generally affect the appearance, updating, delivery or other
elements of the Licensor Content, and shall make such Enhancements available to
Yahoo upon commercially reasonable terms.
SECTION 5: INDEMNIFICATION.
Licensor, at its own expense, will indemnify, defend and hold harmless Yahoo,
its Affiliates and their employees, representatives, agents and affiliates,
against any claim, suit, action, or other proceeding brought against Yahoo or an
Affiliate based on or arising from a claim that the Licensor Content as
delivered to Yahoo or any Licensor Brand Feature infringes in any manner any
Intellectual Property Right of any third party or contains any material or
information that is obscene, defamatory, libelous, slanderous, that violates any
person's right of publicity, privacy or personality, or has otherwise resulted
in any tort, injury, damage or harm to any person; PROVIDED, HOWEVER, that in
any such case: (x) Yahoo provides Licensor with prompt notice of any such claim;
(y) Yahoo permits Licensor to assume and control the defense of such action,
with counsel chosen by Licensor (who shall be reasonably acceptable to Yahoo);
and (z) Licensor does not enter into any settlement or compromise of any such
claim without Yahoo's prior written consent, which consent shall not be
unreasonably withheld. Licensor will pay any and all costs, damages, and
expenses, including, but not limited to, reasonable attorneys' fees and costs
awarded against or otherwise incurred by Yahoo or an Affiliate in connection
with or arising from any such claim, suit, action or proceeding. It is
understood and agreed that Yahoo does not intend and will not be required to
edit or review for accuracy or appropriateness any Licensor Content.
SECTION 6: LIMITATION OF LIABILITY.
EXCEPT AS PROVIDED IN SECTION 5, UNDER NO CIRCUMSTANCES SHALL 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.
SECTION 7: TERM AND TERMINATION.
7.1 INITIAL TERM AND RENEWALS. This Agreement will become effective as of the
Effective Date and shall, unless sooner terminated as provided below or as
otherwise agreed, remain effective for an initial term of [confidential
information filed separately with the SEC] following the first date of public
availability of the Licensor Content on a Content Page within a Yahoo Property
(the "Initial Term"). As used herein, the "Term" means the Initial Term and any
Extension Term(s).
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7.2 TERMINATION FOR CAUSE. Notwithstanding the foregoing, this Agreement may be
terminated by either party immediately upon notice if the other party: (w)
becomes insolvent; (x) files a petition in bankruptcy; (y) makes an assignment
for the benefit of its creditors; or (z) breach any of its obligations under
this Agreement in any material respect, which breach is not remedied within
[confidential information filed separately with the SEC] days following written
notice to such party. In addition, this Agreement may be terminated immediately
by Yahoo in the event that: (i) the Warrant Agreement is not executed within ten
(10) business days of the Effective Date, or (ii) Licensor breaches any
obligation in the Insertion Order which are not cured within ten (10) business
days following written notice from Yahoo to Licensor specifying such breach and
the notice being provided hereunder.
7.3 EFFECT OF TERMINATION. Any termination pursuant to this Section 7 shall be
without any liability or obligation of the terminating party, other than with
respect to any breach of this Agreement prior to termination. The provisions of
Sections 5, 6, 7, 8, 9, 10, shall survive any termination or expiration of this
Agreement.
SECTION 8: OWNERSHIP.
8.1 BY LICENSOR. Yahoo acknowledges and agrees that: (i) as between Licensor 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; (ii) nothing in this Agreement shall confer in Yahoo or an Affiliate
(other than that contained herein), right of ownership in the Licensor Content
or the Licensor Brand Features; and (iii) neither Yahoo or its Affiliates shall
now or in the future contest the validity of the Licensor Brand Features. No
licenses are granted by either party except for those expressly set forth in
this Agreement.
8.2 BY YAHOO. Licensor acknowledges and agrees that: (i) as between Licensor on
the one hand, and Yahoo and its Affiliates on the other, Yahoo or the Affiliates
own all right, title and interest in any Yahoo Property and the Yahoo Brand
Features; (ii) nothing in this Agreement shall confer in Licensor any license or
right of ownership in the Yahoo Brand Features; and (iii) Licensor shall not now
or in the future contest the validity of the Yahoo Brand Features. No licenses
are hereby granted by Yahoo other than those expressly set forth herein. Yahoo
or its Affiliates shall own all derivative works created by Yahoo from the
Licensor Content, including the Content Pages, pursuant to this Agreement, to
the extent such is separable from the Licensor Content.
SECTION 9: PUBLIC ANNOUNCEMENTS.
Neither party shall make any public announcement regarding the existence or
content of this Agreement or the relationship between the parties without the
other party's prior written approval and consent unless required by law, rule or
regulation.
SECTION 10: WARRANTS AND ADVERTISING COMMITMENT.
10.1 WARRANTS. Within ten (10) days of the execution of the Agreement, Yahoo and
Xxxxxxxxxx.xxx will execute a separate Warrant Agreement (the "Warrant
Agreement") whereby Yahoo shall be issued a Warrant to purchase the number of
shares of Xxxxxxxxxx.xxx's Common Stock equal to 50,000 shares of capital stock
(on a fully-diluted basis (on the date hereof), assuming conversion of
outstanding options, warrants, and other instruments convertible into
Xxxxxxxxxx.xxx Common Stock). The exercise price of the Warrant will be
equivalent to the closing price of Xxxxxxxxxx.xxx Common Stock [confidential
information filed separately with the SEC] Warrant Agreement. The Warrant
Agreement shall be in the form attached to the Insertion Order as EXHIBIT D.
10.2 ADVERTISING COMMITMENT. Xxxxxxxxxx.xxx agrees to purchase from Yahoo no
less than [confidential information filed separately with the SEC] of
advertising on the Yahoo Properties annually during the Term at Yahoo's then
current advertising rate card. Simultaneously upon execution of this Agreement,
Xxxxxxxxxx.xxx and Yahoo will execute an insertion order that will contain
Yahoo's standard advertising terms and describe the breakdown of
Xxxxxxxxxx.xxx's initial advertising commitment (the "Insertion Order").
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SECTION 11: NOTICE; MISCELLANEOUS PROVISIONS.
11.1 NOTICES. All notices, requests and other communications called for by this
agreement shall 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 0000 Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxx, XX
00000, Fax: (000) 000-0000 Attention: Senior Director, Business Development
(e-mail: [confidential information filed separately with the SEC]), with a copy
to its General Counsel (e-mail: [confidential information filed separately with
the SEC]), and if to Licensor at the physical and electronic mail addresses set
forth on the signature page of this, or to such other addresses as either party
shall specify to the other. Notice by any other means shall be deemed made when
actually received by the party to which notice is provided.
11.2 MISCELLANEOUS PROVISIONS. This Agreement will bind and inure to the benefit
of each 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: (i) either party may assign this Agreement without such
consent in connection with any merger, consolidation, any sale of all or
substantially all of such party's assets or any other transaction in which more
than fifty percent (50%) of such party's voting securities are transferred. Any
attempt to assign this Agreement other than in accordance with this provision
shall be null and void. This Agreement will be governed by and construed in
accordance with the laws of the State of California, without reference to
conflicts of laws rules, and without regard to its location of execution or
performance. If any provision of this Agreement is found invalid or
unenforceable, that provision will be enforced to the maximum extent
permissible, and the other provisions of this Agreement will remain in force.
Neither this Agreement, nor any terms and conditions contained herein may be
construed as creating or constituting a partnership, joint venture or agency
relationship between the parties. No failure of either party to exercise or
enforce any of its rights under this Agreement will act as a waiver of such
rights. This Agreement and its exhibits are the complete and exclusive agreement
between the parties with respect to the subject matter hereof, superseding and
replacing any and all prior agreements, communications, and understandings, both
written and oral, regarding such subject matter. This Agreement may only be
modified, or any rights under it waived, by a written document executed by both
parties. This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute a single instrument. Execution and
delivery of this Agreement may be evidenced by facsimile transmission.
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
By: By
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Xxxx Xxxxxxxxx Xxxx Xxxxxx
Title: VP/GM Media Title: President & CEO
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Address: 3420 Central Expressway Address: 000 X. Xxxxxxxxxx Xxxx, Xxxxx X
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Xxxxx Xxxxx, XX 00000 Xxxx Xxxxx, XX 00000
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Telecopy: (000) 000-0000 Telecopy: (000) 000-0000
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E-mail: [confidential information filed separately with the SEC] e-mail: xxxx.xxxxxx@xxxxxxxxxx.xxx
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