EXHIBIT 10.20
YAHOO! INC.
CONTENT LICENSE AND PROMOTION AGREEMENT
THIS CONTENT AND PROMOTION LICENSE AGREEMENT (the "AGREEMENT") is
made as of this 28th day of September, 2000 (the "Effective Date") between
Yahoo! Inc., a Delaware corporation with offices at 0000 Xxxxxxx Xxxxxxxxxx,
Xxxxx Xxxxx, XX 00000 ("YAHOO"), and Ticketmaster Online-Citysearch, Inc., a
Delaware corporation with offices at 000 X. Xxxxxxxx Xxxx., Xxxxx 000,
Xxxxxxxx, Xxxxxxxxxx 00000 ("TMCS").
WHEREAS, the parties entered into a Content license, Promotion and
Link Agreement dated June 1, 1998 as subsequently amended by the parties
(collectively, the "Content Agreement");
WHEREAS, the parties now wish to enter into this Agreement to supersede
the Content Agreement and the parties agree that upon execution of this
Agreement, the Content Agreement is terminated and no longer in effect except
for those provisions that survive termination.
NOW, THEREFORE, in consideration of the mutual promises contained
hereto, the parties agree as follows:
SECTION 1: DEFINITIONS.
"ADVERTISING RIGHTS" means the advertising and promotional rights sold
or licensed with respect to Content Pages.
"AFFILIATES" means any company or any other entity worldwide,
including, without limitation, corporations, partnerships, joint ventures, and
limited liability companies, in which Yahoo owns at least a twenty percent
ownership, equity, or financial interest.
"BUY TICKETS NOW LINK" means a placement that (a) contains a TMCS Brand
Feature, (b) has dimensions equal to ** pixels wide by ** pixels high (c) has a
maximum file size of no more than **, (d) does not contain animation and (e)
permits users to navigate directly to a page on the TMCS Site dedicated to
allowing the user to purchase tickets online for the event described on the page
where the placement appears.
"CONTENT PAGES" means those pages in the Yahoo Property on which TMCS
Content is the sole substantive content.
"ENHANCEMENTS" means any updates, improvements or modifications made
to, or derivative works created from, the TMCS Content by TMCS.
"INTELLECTUAL PROPERTY RIGHTS" means all rights in and to trade
secrets, patents, copyrights, trademarks, know-how as well as moral rights and
similar rights of any type under the laws of any governmental authority,
domestic or foreign.
"INTERNET" means the collection of computer networks commonly known as
the Internet, and shall include, without limitation, the World Wide Web.
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
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"LOCAL EVENT REVIEWS" means reviews of local entertainment events by
TMCS, including, without limitation, reviews of arts, concerts, sports, family,
music, and movies that also includes the data described on Exhibit A.
"LODGING REVIEWS" means reviews by TMCS of lodging, including without
limitation, hotels, motels, inns, bed and breakfasts which may or may not
already be reviewed or rated by Yahoo, its licensors or any users.
"PAGE VIEW" means a user's request for a page on a Yahoo Property.
"RESTAURANT REVIEWS" means reviews of TMCS-rated restaurants.
"RESTRICTED COMPANIES" will mean general navigational guides or
online services of any person, corporation, web site or other entity that of
liars Internet-based programming and services similar to Yahoo including
without limitation **. Yahoo reserves the right to specify additional
Restricted Companies from time to time during the Term with written notice to
TMCS.
"TICKET CONTENT" means all or any portion of the complete event
listings for all arts and entertainment events for which TMCS sells tickets
online, including without limitation, arts, concerts, sports, family, museums,
and theatre events, venue information (such as venue name, address) and the data
described on EXHIBIT A.
"TMCS BANNER" means an advertising unit that (a) has dimensions no
larger than ** pixels wide by ** pixels high; (b) does not contain animation
longer than ** seconds; (c) does not contain **; (d) has a file size no
greater than **; and (e) permits users to navigate directly to a page on one
of the TMCS Sites.
"TMCS BRAND FEATURES" means all trademarks, service marks, logos and
other distinctive brand features of TMCS that are used in or relate to the TMCS
Content, including, without limitation, the trademarks, service marks and logos
described in EXHIBIT B hereto.
"TMCS CONTENT" means all or applicable portion of the materials, data,
and similar information collected and owned by TMCS, as further described in
EXHIBIT A attached hereto, including, Restaurant Reviews, Lodging Reviews, Local
Event Reviews, Ticket Content and all Enhancements to the foregoing.
"TMCS SEARCH RESULTS PAGES" means those pages displayed upon a user's
search request on the Yahoo Main Site for the keywords set forth on EXHIBIT H.
Yahoo will have the right to modify such keywords from time to time with
substitute keywords that are mutually agreed to by the parties. TMCS and Yahoo
may work together to optimize certain keywords, from time to time. For clarity,
a search conducted within other Yahoo Properties that include special subject
matter based search engines (e.g., Yahoo Auctions, Yahoo Classifieds, Yahoo
Clubs, Yahoo News, Yahoo Shopping, Yahoo Yellow Pages) will not be considered a
search of the Yahoo Main Site for purposes of this definition.
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
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"TMCS TICKET CONTENT PAGE" means that page where the Ticket Content
appears. The TMCS Ticket Content Page will appear in a manner substantially
similar to the example set forth in EXHIBIT F-4, and is anticipated to be
distributed in Yahoo Entertainment Guide during the term of the Agreement, and
other Yahoo Properties deemed appropriate by Yahoo.
"TMCS SITE" means the following web sites owned or operated on behalf
of TMCS: xxxx://xxx.xxxxxxxxxxxx.xxx and xxxx://xxx.xxxxxxxxxx.xxx
"TEASER CONTENT" means any portion of the TMCS content that (i)
appears on pages within the Yahoo Properties: (ii) contains a small excerpt
of the TMCS Content (e.g., a headline) which does not change the meaning of
the TMCS Content; and (iii) links directly to more TMCS Content.
"YAHOO BRAND FEATURES" means all trademarks, service marks, logos and
other distinctive brand features of Yahoo that are used in or relate to a Yahoo
Property, including, without limitation, the trademarks, service marks and logos
described in EXHIBIT B.
"YAHOO ENTERTAINMENT GUIDE" means that U.S. based Yahoo Property
dedicated to information on local events and currently located at
xxxx://xxxxx.xxxxx.xxx/.
"YAHOO LODGING" means that U.S. based Yahoo Property dedicated to
information on places to stay and currently located xxxx://xxxxxxx.xxxxx.xxx/.
"YAHOO MAIN SITE" means that YAHOO PROPERTY that is (a) within the
xxxxx.xxx domain; and (b) targeted at users in the United States. For clarity,
Yahoo Main Site does not include any Yahoo branded or co-branded property or
service that is (1) outside the xxxxx.xxx domain (e.g., xxxx://xxx.xxxxxxxxx.xxx
or (2) targeted at users outside the United States, regardless of whether the
property or service is within the xxxxx.xxx domain
(e.g.,xxxx://xxxxxxx.xxxxx.xxx).
"YAHOO RESTAURANTS" means that U.S. based Yahoo Property dedicated to
information on U.S. based restaurants and currently located at
xxxx://xxxxxxxxxxx.xxxxx.xxx/.
"YAHOO TICKETS" means that U.S. based Yahoo Property that Yahoo intends
to develop dedicated to information and resources on ticketed events in the U.S.
"YAHOO PROPERTIES" means any Yahoo branded or co-branded media
properties or services (which are defined as those properties or services
that ** (or on the initial entry screen) where ** does not qualify),
including, without limitation, those Internet guides, developed in whole or
in part by Yahoo or its Affiliates and which are displayed on or which
transfer information to and/or from any electronic device now known or later
developed including, without limitation, personal computers, cellular phones,
personal digital assistants, and pagers.
SECTION 2: GRANT OF LICENSES.
2.1 GRANT OF LICENSE BY TMCS. Subject to the terms and conditions of this
Agreement, TMCS hereby grants to Yahoo:
(a) A non-exclusive, worldwide, fully paid license to use, modify,
reproduce, distribute, display, transmit, and publicly perform the TMCS
Content via the Internet
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
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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 TMCS
Content. Yahoo's license to modify the TMCS Content shall be limited
to modifying the TMCS Content to ** Yahoo Property and to create
Teaser Content provided that Yahoo does not ** of the TMCS Content.
(b) A non-exclusive, worldwide, fully paid license to use,
reproduce and display the TMCS Brand Features: (i) in connection with
the presentation of the TMCS Content on the Yahoo Properties; and (ii)
in connection with the marketing and promotion of the Yahoo Properties.
(c) The right to sublicense the rights set forth in this Section
2.1 (i) to its Affiliates only for inclusion in Yahoo Properties; and
(ii) in connection with any mirror site, derivative site, or
distribution arrangement that are also Yahoo Properties, provided that
any such sublicensees shall be subject to the same restrictions that
apply to Yahoo. This right to sublicense permits the sublicensing of
the Ticket Content and the TMCS Brand features either for wireless
implementations or otherwise so long as such sublicense includes other
nonticket related content or services presented on Yahoo Main Site.
2.2 GRANT OF LICENSES BY YAHOO. Subject to the terms and conditions of this
Agreement, Yahoo hereby grants to TMCS a non-exclusive, worldwide,
fully paid license to use, reproduce, distribute, transmit and display
the Yahoo Brand Features set forth in EXHIBIT B to indicate the
location of the Yahoo graphic link as further contemplated in Section
3.2 (e), for as long as Yahoo displays, on the Yahoo Properties, the
TMCS Content linked to such graphic link.
SECTION 3: RESPONSIBILITIES OF THE PARTIES.
3.1 YAHOO'S RESPONSIBILITIES.
(a) Yahoo will be solely responsible for the design, layout,
posting, and maintenance of the Content Pages and the Yahoo
Properties. Yahoo agrees to use commercially reasonable
efforts to integrate the TMCS Content in accordance to the
time frame set forth in EXHIBIT C. Yahoo will include the
TMCS Content within the Yahoo Properties as provided
herein, however, Yahoo reserves the right to cease the
posting or inclusion of any TMCS Content which: (i) Yahoo
determines is not of substantially similar quality and
detail as that depicted in Exhibit A; (ii) Yahoo reasonably
believes, or in connection with which Yahoo receives any
claim, notice, or is otherwise informed that, does not
comply with any law, foreign or domestic; (iii) Yahoo
reasonably believes, or in connection with which Yahoo
receives any claim, notice, or is otherwise informed that,
such TMCS Content violates or infringes the rights of any
third party or is inaccurate or incomplete; or (iv) does
not comply with any of Yahoo's policies, specifications or
guidelines made available to or provided to TMCS in writing
in advance. For the avoidance of doubt, the parties
acknowledge that Yahoo is not obligated to post the entire
TMCS Content provided to it and can, in its discretion,
determine the portions of the TMCS Content and on which
Yahoo Properties to post such TMCS Content. For example, 1)
Yahoo will not be obligated to post more than ** restaurant
reviews and (2) Yahoo will not be obligated to post TMCS's
Lodging Reviews if Yahoo does not already display
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
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lodging reviews for that lodging establishment.
(b) Yahoo will maintain the links specified in Exhibit D. Subject
to Section 3. l(a) above, Yahoo will place the Buy Tickets
Now Link ** to applicable TMCS Content on those pages of
the Yahoo Properties where such TMCS Content is presented.
Yahoo will not ** to any **; provided that third party
descriptions of events will be included on pages with the
TMCS Content and may be ** the Buy Tickets Now Link, but
not ** than the applicable TMCS Content.
(c) Yahoo will include on the Content Pages any reasonable
copyright or other proprietary notices (including trademark
notices) that appear in the TMCS Content.
3.2 TMCS RESPONSIBILITIES.
(a) TMCS will provide to Yahoo the TMCS Content and any other
content mutually agreed in writing. TMCS will have sole
responsibility for the TMCS Content creation and maintenance.
TMCS will use commercially reasonable efforts to provide Local
Event Reviews Content within ** months from the Effective
Date.
(b) TMCS 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 TMCS
Content, as Yahoo may reasonably request.
(c) TMCS will ensure that the TMCS Content is accurate and
comprehensive according to the same standards used for TMCS
Content posted on third party sites and the TMCS Sites. During
the term of this Agreement, TMCS shall deliver updates of the
TMCS Content to Yahoo in accordance with EXHIBIT C. TMCS also
shall provide Yahoo with reasonable prior notice of any
significant Enhancements that generally affect the appearance,
updating, delivery or other elements of the TMCS Content, and
shall make such Enhancements available to Yahoo upon
commercially reasonable terms.
(d) TMCS will maintain the hypertext links specified in EXHIBIT D.
(e) TMCS will place a "Back to Yahoo!" graphic link on those pages
of the TMCS Site to which users click-through from a link
placed by Yahoo in connection with this Agreement. The Yahoo
graphic link will (i) be placed on the TMCS Site in a manner
reasonably approved by Yahoo (and similar to that Attached in
Exhibit I for xxxxxxxxxx.xxx), (ii) contain the Yahoo name,
property name and logo as provided by Yahoo, (iii) be no less
than ** pixels wide and ** pixels high, and (iv) directly link
the user back to the home page of the Yahoo Property where the
user clicked-through (i.e, the home page of Yahoo Restaurants
if the user clicked-through to the TMCS Site from a page that
containing Restaurant Reviews). The "Back to Yahoo!" button
placement on xxxxxxxxxx.xxx profile pages will be in the
designated sponsorship area as exemplified in Exhibit I,
subject to redesign in TMCS' reasonable discretion with prior
notification to Yahoo. TMCS will not disable the "Back" button
on the Internet browsers of
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
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users who click-through from a link placed by Yahoo in
connection with this Agreement.
SECTION 4: COMPENSATION.
4.1 SLOTTING/ADVERTISING FEES. In consideration of Yahoo's performance
and obligations as set forth herein, TMCS will pay Yahoo a non-refundable
non-creditable slotting fee equal to ** dollars ($**). The Slotting Fee will
be paid pursuant to the payment schedule set forth below. ** ($**) of the
first payment is designated as a set-up fee in consideration of Yahoo's
design, consultation and integration of the TMCS Banners.
PAYMENT AMOUNT DATE
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** Upon execution of this Agreement.
** On or before **.
** On or before **, or **
whichever is later.
** On or before **, or upon
**, whichever is later.
** On or before **, or the
**, whichever is
later.
4.2 REVENUE SHARE. TMCS agrees to pay Yahoo a revenue ** percent (**%) of
the gross ** collected by TMCS for tickets sold to buyers accessing the TMCS
web site from Yahoo after the first ** calendar days that tickets for that
particular event are first made available for sale on the TMCS web site, net
of ** or ** associated with ** due to **. TMCS will pay such revenue share
amounts quarterly within fifteen (15) days of the end of each quarter and
will accompany each patent with a written report certified by an officer of
TMCS that includes (a) the total number of tickets sold to users that
click-through from a TMCS Ticket Content Page, (b) event information and
other details about the tickets that are mutually approved by the parties and
which will not exceed the information generally collected by TMCS in the
ordinary course, and (c) the calculation of revenue share due to Yahoo. TMCS
will maintain complete and accurate records in accordance with generally
accepted methods of accounting for all such transactions and will allow
Yahoo!, at its own expense, to direct an independent certified public
accounting firm to inspect and audit such records during normal business
hours with at least ten (10) days written notice to TMCS. In the event that
any audit reveals an underpayment of more than **, TMCS will pay the
reasonable cost of
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
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such audit. Revenue share payments of less than $l,000 for the quarter will roll
forward to the next quarterly payment that exceeds $1,000.00.
4.3 YAHOO OUTLOUD SPONSORSHIP. During the first ** months of 200l, if
Yahoo decides to organize the Yahoo Outloud Concert Series ("Yahoo
Outloud") and has the right to designate the sponsors of Yahoo
Outloud, then TMCS ** sponsor of Yahoo Outloud. As part of this
sponsorship, TMCS will receive (a) branded logos and links on
promotions placed by Yahoo related to Yahoo Outloud on tile Yahoo
Main Site and (b) logo placement on at least ** pieces of printed
collateral (e.g. flyers, postcards, posters) which will be
distributed to at least ** U.S. college campuses. TMCS agrees that
they will charge the same service charge (no higher) for online
ticket sales that ticketmaster Corporation charges which is to be
based on the **. In consideration of this opportunity (and only if
TMCS is in fact provided with this opportunity or a ** to TMCS),
TMCS agrees to cause Ticketmaster Corporation to offer to Yahoo
branding opportunities on the ticketbacks of a minimum **
ticketbacks (valued at $**) during the first ** months of 2001
which will be reasonably acceptable to Yahoo. This branding
opportunity may be used for Yahoo Music or a Yahoo Property to be
determined at Yahoo's discretion, which will be reasonably
acceptable to TMCS. If Yahoo does not organize the Yahoo Outloud,
then Yahoo will ** (valued at $**) subject to the approval of TMCS
which in any event will be accepted or declined no later than ten
(10) days after it is presented to TMCS by Yahoo.
4.4 PAYMENT INFORMATION. All payments herein are non-refundable and
non-creditable and will be made by TMCS via wire transfer into Yahoo's
main account pursuant to the wire transfer instructions set forth on
EXHIBIT E. All payments to Yahoo will be exclusive of any applicable
taxes, which, other than income taxes payable by Yahoo on amounts
earned by Yahoo for which Yahoo will be solely responsible), will be
the sole responsibility of TMCS. All fees are payable in U.S. dollars.
Late payments will bear interest at the rate of one percent (1%) per
month (or the highest rate permitted by law, if less). In the event of
any failure by TMCS to make payment, TMCS will be responsible for all
reasonable expenses (including attorneys' fees) incurred by Yahoo! in
collecting such amounts.
4.5 ADVERTISING RIGHTS. Yahoo shall have the sole right to sell and retain
all Advertising Rights with respect to the Content Pages and the Yahoo
Properties (except as expressly described in Section 5.2 regarding the
TMCS Ticket Content Pages.)
SECTION 5: LIMITED EXCLUSIVITY.
5.1 RESTRICTED COMPANIES. In no event will the ** on the TMCS Site that
users reach by click-through directly from any ** in connection with the
Agreement contain ** or similar material from Restricted Companies on such
pages **. For example, it will be considered a material breach of this
Agreement if TMCS or any of its agents or representatives
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
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offer or sell any ** to Restricted Companies on such pages ** to such pages.
5.2 LIMITED EXCLUSIVITY. On the TMCS Ticket Content Pages, (1) Yahoo
will not ** described on Exhibit G during the Term of the Agreement; and (2)
Yahoo agrees that the TMCS Banners will be ** advertising banners that appear
on the TMCS Ticket Content Pages during the first ** of the Agreement. In
addition, Yahoo will not ** the Yahoo Main Site or any other web site the **
which is ** or to purposefully display ** on the Yahoo Main Site **. Except
for the preceding sentence, Yahoo will not be restricted in any manner from
placing content from any source on the TMCS Ticket Content Pages. Yahoo
further agrees that it will not solely display the Buy Tickets Now Link or
similar link without ** to the remainder of the applicable portion of the
Ticketing Content Feed described in Section A of Exhibit A.
SECTION 6: MEDIA PROGRAM.
6.1 Yahoo will place a TMCS Banner as a fixed placement in the north
banner position on the TMCS Ticket Content Pages. For clarity, Yahoo will
place a TMCS banner on each TMCS Ticket Content Page for ** of this
agreement. TMCS will provide to Yahoo at least ** banners for rotation.TMCS
will have the right to change such banners at least ** per calendar month. In
addition, Yahoo will also provide ** Page Views of TMCS Banners on run of
Yahoo Network to be delivered upon Yahoo's discretion. Beginning no earlier
than **, Yahoo will provide (1) ** Page Views of TMCS Banners placed within
Yahoo Yellow Pages (currently located at xxxx://xx.xxxxx.xxx) and/or Yahoo
Maps (currently located at xxxx://xxxx.xxxxx.xxx) and (2) ** Page Views of
TMCS Search Results Pages. All TMCS Banners will be placed subject to Yahoo's
standard advertising terms and conditions.
6.2 In the event that Yahoo fails to deliver the number of Page Views set
forth above before the expiration of the Term, Yahoo will "make good" the
shortfall by extending its obligations under Section 6.1 in the areas set forth
therein (or similar inventory mutually agreed upon by the parties) beyond the
end of the Term until such Page View obligation is satisfied. The provisions of
this Section 6.2 set forth the entire liability of Yahoo, and TMCS's sole
remedy, for Yahoo's failure to meet its Page View obligation set forth in
Section 6.1.
6.3 TMCS will provide all materials for the TMCS Banners within **
business days from the Effective Date and thereafter 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 TMCS
Banners. Notwithstanding anything to the contrary in this Agreement, Yahoo will
have no obligation to post any TMCS Banners that is not in accordance with such
policies. TMCS hereby grants to Yahoo a non-exclusive, worldwide, fully paid
license to use, reproduce and display the TMCS Banners (and the contents,
trademarks and brand features contained therein) in accordance herewith.
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
8
6.4 All contents of TMCS Banners are subject to Yahoo's reasonable
approval. Yahoo reserves the right to reject or cancel any TMCS Banners,
insertion order, URL link, space reservation or position commitment, at any
time, in its reasonable discretion for any failure to comply with Yahoo's
standard advertising specifications, including those set forth at
xxxx://xxxx.xxxxx.xxx/xxxx/xxxxxxxxxxx/xxx in accordance with clauses (iii),
(iv) and (v) of Section 3.1(a).
6.5 Yahoo will make commercially reasonable efforts to provide a monthly
report of the Page Views that Yahoo delivers on the TMCS Ticket Content Pages
within fifteen days (15) days after the end of the previous month.
6.6 TMCS acknowledges and agrees that Page View statistics provided by
Yahoo are the official, definitive measurements of Yahoo's performance. The
processes and technology used to generate such statistics have been certified
and audited by Ernst & Young an independent agency and their report is currently
located at xxxx://xxxxxxxxxxxxxx.xxx/xxxxx/xxxxxxxxxxx.xxxx. No other
measurements or usage statistics (including those of TMCS or any third party)
will be applicable to this Agreement.
SECTION 7: INDEMNIFICATION
TMCS, 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 TMCS Content as
delivered to Yahoo or any TMCS Brand Feature, service, product or information
produced, distributed or offered by TMCS (including without limitation, the sale
of tickets) or any material presented on the TMCS Site 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 TMCS with prompt notice of any such claim;
(y) Yahoo permits TMCS to assume and control the defense of such action, with
counsel chosen by TMCS (who shall be reasonably acceptable to Yahoo); and (z)
TMCS 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.
TMCS 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 TMCS Content.
Yahoo, at its own expense, will indemnify, defend and hold harmless
TMCS and its employees, representatives, agents and affiliates, against any
claim, suit, action, or other proceeding brought against TMCS or its
affiliates based on or arising from a claim that the Yahoo Brand Features as
delivered to TMCS or that any ** by Yahoo or its Affiliates (not authorized
or contemplated under this Agreement) ** in any manner any ** of any third
party; provided, HOWEVER, that in any such case: (x) TMCS provides Yahoo with
prompt notice of any such claim; (y) TMCS permits Yahoo to assume and control
the defense of such action, with counsel chosen by Yahoo (who shall be
reasonably acceptable to TMCS); and (z) Yahoo does not enter into any
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
9
settlement or compromise of any such claim without TMCS' prior written consent,
which consent shall not be unreasonably withheld. Yahoo 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 TMCS in
connection with or arising from any such claim, suit, action or proceeding.
SECTION 8: LIMITATION OF LIABILITY.
EXCEPT AS PROVIDED IN SECTION 7, UNDER NO CIRCUMSTANCES SHALL TMCS,
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 9: TERM AND TERMINATION
9.1 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 ** from the
Effective Date (the "Term"). In the event that Yahoo has not integrated the
TMCS Content into any of the Yahoo Properties described on Exhibit C within
** from the Effective Date, Yahoo will use commercially reasonable efforts to
integrate the TMCS Content by the ** and the term of the Agreement will, at
TMCS' option and with written notice to Yahoo, extend for an additional term
so that the contract terminates ** from the date in which the TMCS Content is
integrated, with no additional compensation.
9.2 TERMINATION FOR CAUSE. Notwithstanding the foregoing, this Agreement
may be terminated by either party immediately upon notice if the other party:
(a) becomes insolvent; (b) files a petition in bankruptcy; (c) makes an
assignment for the benefit of its creditors: or (d) breaches any of its
obligations under this Agreement in any material respect, which breach is not
remedied within thirty (30) days following written notice to such party.
9.3 EFFECT OF TERMINATION. Any termination pursuant to this Section 9 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 4, 6.2, 7, 8, 10, 11, 12 and this Section 9.3 shall survive any
termination or expiration of this Agreement. Upon execution of this Agreement,
the Content License, Promotion and Link Agreement entered into between the
parties on June 1, 1998 (and subsequently amended) will automatically terminate.
Neither party will have any obligation to the other under such agreement except
for those provisions that survive termination.
SECTION 10: OWNERSHIP.
10.1 BY TMCS. Yahoo acknowledges and agrees that: (i) as between TMCS on the
one hand, and Yahoo and its Affiliates on the other, TMCS owns all right, title
and interest in the TMCS Content and the TMCS Brand Features; (ii) nothing in
this Agreement shall confer in Yahoo or an Affiliate any right of ownership in
the TMCS Content or the TMCS Brand Features; and (iii) neither Yahoo nor its
Affiliates shall now or in the future contest the validity of the TMCS Brand
Features.
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
10
10.2 BY-YAHOO. TMCS acknowledges and agrees that: (i) as between TMCS 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 (except for any TMCS
Content or TMCS Brand Features appearing thereon) and the Yahoo Brand Features;
(ii) nothing in this Agreement shall confer in TMCS any right of ownership in
the Yahoo Brand Features; and (iii) TMCS shall not now or in the future contest
the validity of the Yahoo Brand Features. Yahoo and its Affiliates shall own
any derivative works created hereunder which incorporate the TMCS Content or
Teaser Content (e.g., the Content Pages), excluding the TMCS content and Teaser
Content itself. Without limiting the foregoing and for the avoidance of doubt,
Yahoo shall not be entitled to use, display or otherwise deal with the TMCS
Content alter a date ending ** days after the end of the Term.
10.3 NO LICENSES. No licenses are granted by either party except for those
expressly set forth in this Agreement.
SECTION 11: PUBLIC ANNOUNCEMENTS.
The parties will cooperate to create any and all appropriate public
announcements relating to the relationship set forth in this Agreement. Neither
party shall make any public announcement regarding the existence or content of
this Agreement without the other party's prior written approval and consent. 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. If this Agreement or any of
its terms must be disclosed under any law, rule or regulation (e.g., as part of
a filing with the United States Securities and Exchange Commission), excluding
an order or other discovery request issued by a court of competent jurisdiction,
the disclosing party will (a) give written notice of the intended disclosure to
the other party at least 5 business days in advance of the date of disclosure;
(b) redact portions of this Agreement to the fullest extent permitted under any
applicable laws, rules and regulations; and (c) submit a request, to be agreed
upon by the other party, that such portions and other provisions of this
Agreement requested by the other party 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. Yahoo will work with TMCS on a press release to be issued by TMCS and
subject to Yahoo's approval, within six business days of signature of this
Agreement by both parties.
SECTION 12: USER DATA.
12.1 USER DATA: Yahoo and TMCS agree that protecting users' privacy rights
is a critical element of their business relationship. Accordingly, each
party agrees to adhere to TRUSTe guidelines on the collection and use
of all user data, will collect such data pursuant to written privacy
policies that are conspicuously posted on all pages where a user is
requested to provide personal or financial information and will
continuously satisfy all applicable privacy and consumer protection
laws and regulations.
12.2 DATA OWNERSHIP: 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 (including, without limitation, data
submitted by Users on the TMCS Ticket Content and Content Pages) will
be retained by and owned solely by Yahoo. TMCS will
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
11
have the right to use information provided by such users solely as
necessary to provide the services generally available on the TMCS Sites
requested by the user. All information and data provided to TMCS on the
TMCS Sites or otherwise collected by TMCS relating to user activity on
the TMCS Sites will be retained by and owned solely by TMCS. Each party
agrees to use all personally identifying information only as authorized
by the user that provided such information and will not disclose, sell,
license or otherwise transfer any such user information to any third
party other than in accordance with its published privacy policy or use
the user information for the transmission of "junk mail," "spam" or
any other unsolicited mass distribution of information.
SECTION 13: NOTICE: MISCELLANEOUS PROVISIONS
13.1 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 000, Xxxxx Xxxxx, XX 00000, Fax:
** Attention: Senior Vice President, Business Development (e-mail:**),
with a copy to its General Counsel (e-mail:**), and if to TMCS at the
physical and electronic mail addresses set forth on the signature page
of this Agreement, 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.
13.2 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. Notwithstanding the foregoing, (i) Either
party may assign this Agreement without such consent 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 (50%)
of such its voting securities are transferred except that any
assignment or transfer to a competitor of the non-transferring party or
to any entity that the non-transferring party does not reasonably
believe has sufficient resources to fulfil its obligations under this
Agreement will require the prior written consent of the
non-transferring party, and (ii) in the event that the non-
transferring party does not consent to a proposed assignment, the
non-transferring party will have the right to terminate the Agreement
with fifteen (15) days written notice to the transferring party. 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
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
12
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.
[signature page follows]
13
YAHOO, INC. TICKET MASTER ONLINE-CITY SEARCH
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxxx Marriott
----------------------------- ---------------------------------
Title: SVP Title: EVP
--------------------------- -------------------------------
Address: 0000 Xxxxxxx Xxxxxxxxxx Address: 000 Xxxx Xxxxxxxx Xxxx
Xxxxx Xxxxx, XX 00000 Xxxxx 000 Xxxxxxxx, XX 00000
------------------------- -----------------------------
Telecopy: ** Telecopy:
------------------------ ----------------------------
E-mail: ** E-mail: **
-------------------------- ------------------------------
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
14
