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EXHIBIT 10.9
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CONFIDENTIAL
FASHION ACCESSORIES PROGRAM
ADVERTISING AND PROMOTION AGREEMENT
This Advertising and Promotion Agreement (this "Agreement") is entered
into as of August 11, 1999 (the "Effective Date") between Yahoo! Inc., a
Delaware corporation with offices at 0000 Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxx, XX
00000 ("Yahoo") and Xxxxxxx.xxx, Inc., a Delaware corporation with offices at
0000 Xxxxxxx Xxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 ("Ashford").
In consideration of the mutual promises contained in this Agreement,
Yahoo and Ashford hereby agree as follows:
1. DEFINITIONS.
The following terms are used in this Agreement with the respective
meanings set forth below:
"Ashford Banner" shall mean the advertising promotions Ashford provides
to Yahoo hereunder and reasonably approved by Yahoo that: (a) promotes the
on-line sale of Fashion Accessories Products, (b) has dimensions no larger than
468 pixels wide by 60 pixels high, (c) does not have "looped" animation, (d)
does not have any animation longer than six seconds, (e) has a file size of no
greater than 12K, and (f) will permit users to navigate directly to a Page on
the Ashford Site relating to the Ashford Banner content. Yahoo may modify these
specifications (except clause (f)) at its reasonable discretion, provided that
any such modification does not have a material adverse impact on the value of
the Ashford Banner, as would be reasonably determined by a similarly situated
independent third party merchant.
"Ashford Banner Category Pages" shall mean those Pages within the
Ashford Banner Categories identified on Exhibit A.
"Ashford Banner Keywords" shall mean those keywords identified as such
on Exhibit A; provided that, Yahoo may substitute any such keyword for a
comparable keyword in its reasonable discretion with consent from Ashford, which
shall not be unreasonably withheld or delayed.
"Ashford Banner Pages" shall mean the Ashford Banner Category Pages and
Ashford Banner Search Results Pages.
"Ashford Banner Search Results Pages" shall mean those Pages displayed
upon a user's searching the Yahoo Main Site for an Ashford Banner Keyword.
"Ashford Brand Features" shall mean all trademarks, service marks,
logos and other distinctive brand features of Ashford that are used in or relate
to its business.
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"Ashford Button" shall mean a link substantially similar in form as
that set forth on Exhibit B that: (a) contains an Ashford logo and has
dimensions no larger than 88 pixels wide by 31 pixels high, (b) does not contain
animation, (c) has a file size of no greater than 2K, (d) contains alt text of
no more than ten (10) characters (including spaces), (e) and will permit users
to navigate directly to a Page on the Ashford Site reasonably relating to the
Page on which such Ashford Button appears. Yahoo may modify these specifications
(except clause (e)) at its reasonable discretion, provided that any such
modification does not have a material adverse impact on the value of the Ashford
Button, as would be reasonably determined by a similarly situated independent
third party merchant.
"Ashford Button Category Pages" shall mean those Pages within the
Ashford Button Categories identified on Exhibit A.
"Ashford Button Keywords" shall mean those keywords identified as such
on Exhibit A; provided that, Yahoo may substitute any such keyword for a
comparable keyword in its reasonable discretion with consent from Ashford, which
shall not be unreasonably withheld or delayed.
"Ashford Button Pages" shall mean the Ashford Button Category Pages and
Ashford Button Search Results Pages.
"Ashford Button Pages Area" shall mean the area on the Ashford Button
Pages on which the Ashford Button appears (together with other merchant or Yahoo
buttons).
"Ashford Button Search Results Pages" shall mean those Pages displayed
upon a user's searching the Yahoo Main Site for an Ashford Button Keyword
"Ashford Competitors" shall mean those merchants listed on Exhibit G;
[ * ]
"Ashford E-Mail" shall mean an e-mail message promoting Fashion
Accessories Products that: (a) is a single HTML mail message; (b) contains an
image in JPEG or GIF format under 5K in file size; (c) has a total page weight
of no more than 30K, (d) contains no animation longer than 6 seconds (with no
"looping") (e) contains no Java, JavaScript, frames, ActiveX , dynamic HTML ,
background body image or background color, (f) contains up to four lines of text
as provided by Ashford and reasonably approved by Yahoo, with no more than 40
characters (including spaces) on each line. Yahoo may modify these
specifications at its reasonable discretion, provided that any such modification
does not have a material adverse impact on the value of the Ashford E-Mail, as
would be reasonably determined by a similarly situated independent third party
merchant.
"Ashford Front Page Promotion" shall mean a promotion substantially
similar in form as that set forth on Exhibit B which will appear on the home
page of the Yahoo Main Site, that will in all cases comply with Yahoo's current
front-page promotion guidelines attached as Exhibit D, which may be modified by
Yahoo at its sole discretion; provided that, in the event that any such
modification has a material adverse impact on the value of the Ashford Front
Page Promotion as would be reasonably determined by a similarly situated
independent third-party merchant, Ashford shall be permitted to substitute any
undelivered Ashford Front Page Promotion inventory for alternative promotions in
the Yahoo Main Site mutually agreed upon by the parties ("Substitue Front Page
Inventory"). Any substitutions shall be made based on the ratio of
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Yahoo's then-current ratecard prices for the Substitute Front Page Inventory and
the then current value of the Ashford Front Page Promotion inventory to be
substituted (i.e., if at the time of substitution, the Substitute Front Page
Inventory is valued at a [ * ] cpm on Yahoo's then current ratecard, and the
then current value of the Ashford Front Page Promotion in the then current rate
card is [ * ], then Ashford shall get [ * ] the number of remaining impressions
of the Ashford Front Page Promotions when converted to the new inventory).
"Ashford Link" shall mean any link placed by Yahoo under this
Agreement, including, without limitation, the Ashford Banner, Ashford Button,
and Ashford E-Mail.
"Ashford Site" shall mean the web site owned by Ashford currently
located at xxxx://xxx.xxxxxxx.xxx.
"Fashion Accessories Merchant" shall mean any company or other entity
that derives fifty percent (50%) or more of its revenue through the on-line sale
of Fashion Accessories Products.
"Fashion Accessories Merchant Program" shall mean Yahoo's program
consisting of certain marketing, advertising and promotional activities with
Fashion Accessories Merchants.
"Fashion Accessories Products" shall mean jewelry, certain leather
goods (e.g., handbags and wallets), pens, eyewear and similar fashion
accessories (e.g., watches).
"February 1999 Agreement" shall mean that Advertising and Promotion
Agreement, between Ashford and Yahoo, dated February 26, 1999.
"Launch Date" shall mean the date of first public availability of the
Ashford Links on the Yahoo Properties.
"Merchant Button" shall mean a link to a third party merchant's World
Wide Web site that substantially conforms to the specifications of Yahoo's then
current merchant promotional buttons.
"Page" means any World Wide Web page (or, for online media other than
Web sites, the equivalent unit of the relevant protocol).
"Page View" shall mean a user's request for a Page as measured by
Yahoo's advertising reporting system.
"Term" shall mean the period beginning on the Effective Date and
continuing for a period of twelve (12) months following the Launch Date.
"Treasure Xxxx Click-Throughs" shall mean a user's "pressing" or
"clicking" on a Treasure Xxxx Promotion "Win It" icon, as measured by Yahoo's
advertiser reporting system.
"Treasure Xxxx Promotion" shall mean a multi-sponsor promotion on the
Yahoo Properties, conforming to the specifications set forth in Exhibit E (which
may be modified at Yahoo's reasonable discretion, provided that any such
modification does not have a material adverse impact on the value of the
Treasure Xxxx Promotion), in which users view sponsors' pages and answer
demographic questions in exchange for entries towards a drawing for prizes.
"Yahoo Brand Features" shall mean all trademarks, service marks, logos
and other distinctive brand features of Yahoo that are used in or relate to its
business.
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"Yahoo Main Site" shall mean Yahoo's principal U.S. based directory to
the World Wide Web currently located at xxxx://xxx.xxxxx.xxx.
"Yahoo Properties" shall mean any Yahoo branded or co-branded media
properties, including, without limitation, Internet guides, that are developed
in whole or in part by Yahoo or its affiliates.
"Yahoo Sports" shall mean Yahoo's sports related property currently
located at xxxx://xxxxxx.xxxxx.xxx.
2. ASHFORD BANNER, FRONT PAGE PROMOTION AND SPORTS PROMOTION.
2.1 During the Term, Yahoo shall provide the Ashford Banner, on a
rotating basis until its Page View obligations under Section 7
are met, on the Ashford Banner Pages. Yahoo agrees to use
commercially reasonable efforts to ensure that the Ashford
Banners are served on the Ashford Banner Pages during each
month of the Term, unless otherwise mutually agreed upon by
the parties.
2.2 During the Term, Yahoo shall provide the Ashford Front Page
Promotion, on a rotating basis until its Page View obligations
under Section 7 are met, on the home page of the Yahoo Main
Site. Yahoo agrees to use commercially reasonable efforts to
ensure that the Ashford Front Page Promotions are served on
the home page of the Yahoo Main Site on the dates specified on
Exhibit A or, subject to availability, other dates mutually
agreed upon by the parties.
2.3 During the Term, Yahoo shall provide Ashford with an
advertising promotion valued at [ * ], calculated at a [ * ]
discount off of Yahoo's then current standard rate card
prices, in Yahoo Sports. The form of such advertisement shall
be mutually agreed upon by the parties but consistent with
applicable standard forms of advertising appearing in Yahoo
Sports.
3. ASHFORD BUTTONS.
3.1 Yahoo shall provide the Ashford Button on the Ashford Button
Pages throughout the Term. The Ashford Button's placement on
the Ashford Button Pages shall rotate equally with any other
buttons appearing in the Ashford Button Pages Area (consistent
with the limited exclusivity provision of Section 6.1). Yahoo
shall provide up to three (3) text links to accompany the
Ashford Button on the Ashford Button Pages. In no case shall
any Ashford Button text link exceed sixteen (16) characters
(including spaces). Further, each Ashford Button text link
shall promote Fashion Accessories Products and permit users to
navigate via a link directly to a Page on the Ashford Site
relating to the Fashion Accessories Products relevant to the
Ashford Button Page on which such text link appears.
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4. ASHFORD E-MAILS AND TREASURE XXXX PROMOTION.
4.1 Yahoo shall deliver (i) [ * ] Ashford E-Mails to unique
registered users of its U.S. based email service through the
Yahoo! Delivers program (the "Yahoo Delivers Program"); and
(ii) [ * ] Ashford E-Mails to unique registered users of its
U.S. based email service through the Yahoo! Welcome and/or
Birthday Club program (the "Yahoo Welcome Program"). In
addition, Yahoo shall deliver [ * ] Treasure Xxxx
Click-Throughs. In all cases, Ashford E-Mails shall be
delivered only (x) to those registered users of Yahoo's U.S.
based e-mail service that have indicated during the
registration process for such service a willingness to receive
promotional solicitations via Yahoo Mail; and (y) in
accordance with Yahoo's privacy policy. The text of the
Ashford E-Mail and materials necessary for Ashford's
participation in the aforementioned programs shall be provided
by Ashford and shall be subject to Yahoo's reasonable approval
and consistent with Yahoo's generally applicable policies and
guidelines for such messages and programs. Yahoo shall use
commercially reasonable efforts to target the Ashford E-Mails
delivery to its users based on gender and age characteristics
mutually agreed upon by the parties.
5. IMPLEMENTATION.
5.1 Yahoo will be solely responsible for the user
interface and placement of the Ashford Links and
Ashford shall be solely responsible for and shall
provide Yahoo with all artwork and design elements of
the Ashford Links.
5.2 Ashford shall promptly provide Yahoo all URLs, URL
formats (as applicable), content, and other materials
necessary for Yahoo to provide the Ashford Links. All
content and material contained in the Ashford Links
is subject to Yahoo's reasonable approval and must
comply with all applicable federal, state and local
laws, rules and regulations, including, without
limitation, consumer protection laws and rules and
regulations governing product claims, truth in
labeling, and false advertising.
5.3 During the Term, Ashford hereby grants to Yahoo a
non-exclusive, worldwide, fully paid license to use,
reproduce and display the Ashford Brand Features (i)
to indicate the location of the Ashford Links as set
forth herein and (ii) in connection with the
marketing and promotion of Ashford in the Yahoo
Properties. In association with the forgoing license,
Yahoo agrees to comply with the reasonable quality
control guidelines provided by Ashford to Yahoo from
time to time. Yahoo agrees that all uses of the
Ashford Brand Features shall be on behalf of Ashford
and the goodwill associated therewith shall inure to
the sole benefit of Ashford.
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5.4 In no event shall the first Page on the Ashford Site
to which users click-through directly from any
Ashford Link contain graphic or textual hyperlinks,
banner advertisements or promotions of the following
third parties: [ * ]
5.5 Ashford shall place a Yahoo graphic link on the first
Page of the Ashford Site to which users directly
click-through from any Ashford Link. Such Yahoo
graphic link shall be substantially similar in form
as that set forth on Exhibit B, unless the parties
mutually agree to an alternative placement; and (b)
directly link the user back to a Page on the Yahoo
Properties either to the page from which the user
click-through from or to the Yahoo Main Site home
page.
5.6 During the Term, Yahoo hereby grants to Ashford 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 links as
set forth herein. In association with the forgoing
license, Ashford agrees to comply with the Trademark
Usage Guidelines attached as Exhibit X. Xxxxxxx
agrees that all uses of the Yahoos name and logo
shall be on behalf Yahoo and the goodwill associated
therewith shall inure to the sole benefit of Yahoo.
5.7 The Ashford Site shall comply with the scale, speed
and performance requirements mutually agreed upon by
the parties, but in no event shall the scale, speed
and performance of the Ashford Site be materially
less capable in such regard to comparable similarly
situated Yahoo merchants.
6. LIMITED EXCLUSIVITY; RIGHT OF FIRST PRESENTATION.
6.1 Yahoo shall display no more than one (1) Merchant
Button of any Ashford Competitor on the Ashford
Button Pages. Further, in the event that Yahoo elects
to display seven (7) or more Merchant Buttons on the
Ashford Button Pages, Yahoo shall: [ * ].
6.2 For clarity, Ashford acknowledges that the foregoing
limited exclusivity provision of Section 6.1 shall
not preclude Yahoo from, among other things: (i)
promoting or placing banners, Merchant Buttons or any
other advertising of any entity (including Ashford
Competitors) on any Yahoo Property other than the
Ashford Button Pages; (ii) subject to Section 6.1,
promoting or placing banners, Merchant Buttons or any
other advertising of any entity except Ashford
Competitors on the Ashford Button Pages; or (iii)
promoting or placing banners or any other advertising
except Merchant Buttons of any entity (including
Ashford Competitors) on the Ashford Button Pages,
provided that if Yahoo incorporates a non-banner
promotion which is larger than the Ashford Buttons on
the Ashford Button Pages, Ashford shall have the
right to and Yahoo will agree to [ * ].
6.3 Within thirty (30) days prior to the expiration of
the Term, Yahoo will provide written notice to
Ashford in the event that Yahoo, at its sole
discretion, elects
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to extend the availability of the Fashion Accessories
Merchant Program described in this Agreement. Yahoo
shall describe Yahoo's reasonable business
requirements for such Fashion Accessories Merchant
Program in its written notice to Ashford. The parties
will [ * ]. The parties acknowledge that the
promotional opportunities and terms offered in any
Fashion Accessories Merchant Program may differ
substantially from those contained in this Agreement.
Further, under no circumstances shall the foregoing
right of presentation be deemed to restrict Yahoo's
ability to extend merchant positions in any
subsequent Fashion Accessories Merchant Program to
any third parties, provided that Yahoo complies with
the terms of this Section 6.3.
6.4 Yahoo will provide written notice to Ashford in the
event that Yahoo, at its sole discretion, elects to
create, during the Term, a new promotional
opportunity substantially similar in scope and nature
to this Fashion Accessories Merchant Program on the
Yahoo Main Site. Yahoo shall describe Yahoo's
reasonable business requirements for the new
promotional opportunity in its written notice to
Ashford. [ * ] For clarity, the parties acknowledge
that advertising and promotional opportunities that
are in the normal course of Yahoo's business
including, but not limited to, banner ads on category
pages and keyword search results pages, shall not be
considered new promotional opportunities for the
purposes of this Section 6.4.
7. PAGE VIEWS.
7.1 With respect to the Ashford Button, Ashford Banner,
and Ashford Front Page Promotion, Yahoo shall deliver
a minimum of [ * ] Page Views.
7.2 Yahoo shall use reasonable commercial efforts to
deliver such Page Views as follows: [ * ] Page Views
of the Ashford Button; [ * ] Page Views of the
Ashford Banner; and [ * ] Page Views of the Ashford
Front Page Promotion. Notwithstanding the foregoing,
Yahoo's Page View obligations are with respect to the
program as a whole as set forth in Section 7.1 above
and Yahoo shall not be in breach of this Agreement
for failure to deliver the specific number of Page
Views in any of the areas set forth in this Section
7.2.
7.3 In the event that Yahoo fails to deliver [ * ] or
less of (i.e. delivers [ * ] or more of) the number
of Page Views referred to in Section 7.1 at the
expiration of the Term, Yahoo will "make good" the
shortfall [ * ] after the end of the Term by
extending its obligations under Sections 2, 3 and 6
in the areas of the Yahoo Main Site set forth therein
(or similar mutually agreed upon inventory) beyond
the end of the Term until such Page View obligation
is satisfied. The provisions set forth in this
Section 7.3 set forth the entire liability of Yahoo,
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and Ashford's sole remedy, for Yahoo's breach of its
Page View obligations set forth in this Section 7.
7.4 Throughout the Term, Yahoo shall provide Ashford
access to an electronic database that describes
Yahoo's calculation of the Page Views delivered
during the Term. The database will be updated
according to Yahoo's standard updating procedures.
8. COMPENSATION.
8.1 Slotting Fee. In consideration of Yahoo's performance
and obligations as set forth herein, Ashford will pay
Yahoo a non-refundable slotting fee equal to two
million dollars ($2,000,000). Such fee shall be paid
to Yahoo on the dates set forth below with the first
payment designated as a set up fee for the design,
consultation and development of the Ashford Links.
a) Payment Date
-----------------------------------------------------
b) [ * ] [ * ]
c) [ * ] [ * ]
d) [ * ] [ * ]
e) [ * ] [ * ]
f) [ * ] [ * ]
8.2 Payment Information. All payments herein are
non-refundable and non-creditable (except as provided
in Section 9.3(b)) and shall be made by Ashford via
wire transfer into Yahoo's main account pursuant to
the wire transfer instructions set forth on Exhibit
C.
8.3 Late Payments. Any portion of the above payments
which has not been paid to Yahoo within [ * ] days of
the dates set forth above shall bear interest at the
greater of (i) one percent (1%) per month or (ii) the
maximum amount allowed by law. Notwithstanding the
foregoing, any failure by Ashford to make the
payments specified in Sections 8.1 on the dates set
forth therein shall constitute a material breach of
this Agreement.
9. TERMINATION.
9.1 Term. This Agreement shall commence upon the
Effective Date and, unless terminated as provided
herein, shall remain in effect for the Term.
9.2 Termination by Either Party with Cause. This
Agreement may be terminated at any time by either
party: (i) immediately upon written notice if the
other
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party: (a) is declared insolvent; (b) files a
petition in bankruptcy; or (c) makes an assignment
for the benefit of its creditors; or (ii) thirty (30)
days after written notice to the other party of such
other party's breach of any of its obligations under
this Agreement in any material respect (ten (10) days
in the case of a failure to pay), which breach is not
remedied within such notice period. In the event that
Yahoo provides a notice of termination under clause
(ii) above, Yahoo shall have the right to suspend its
performance under this Agreement for the notice
period unless and until the breach is fully remedied
by Ashford prior to the expiration of the notice
period.
9.3 Termination by Yahoo.
a) Yahoo may terminate this Agreement upon
forty-five (45) days written notice to
Ashford if (i) at any time during the Term
Yahoo reasonably determines that Ashford
Site is not fully operational with support
for conducting on-line sales of Fashion
Accessories Products, or (ii) at any time
during the Term after October 1, 1999, Yahoo
reasonably determines that the Ashford Site
is no longer one of the top five (5) sites
for the on-line sale of Fashion Accessories
Products (as determined, to the extent
practical, over a reasonable period of time,
by an independent, qualified and
industry-recognized third party based on the
quantity and quality of customers and
product offerings).
b) In the event of a termination of this
Agreement by Yahoo pursuant to Section
9.3(a) or Section 14.5: (i) Ashford's
payment obligations after the effective date
of such termination (the "Section 9.3(a)
Termination Date") [ * ]; and (ii) Yahoo
shall [ * ]. For the purposes of this
Section 9.3(b), the value of [ * ]. Any [ *
] pursuant to this Section 9.3(b) shall be
substantially similar to the promotions
contemplated under this Agreement unless
otherwise mutually agreed upon by the
parties. Yahoo agrees that any [ * ] subject
to this Section 9.3(b) shall be [ * ].
9.4 Survival. The provisions of Sections 1, 7.3, 8,
9.3(b) and 10 through 14 and this 9.4 shall survive
expiration or termination of this Agreement; provided
that, [ * ].
10. CONFIDENTIAL INFORMATION AND PUBLICITY.
10.1 Terms and Conditions. The terms and conditions of
this Agreement shall be considered confidential and
shall not be disclosed to any third parties except to
such party's accountants, attorneys, or except as
otherwise required by law. Neither party shall make
any public announcement regarding the existence of
this Agreement without the other party's prior
written approval and consent. If this Agreement or
any of its terms must be disclosed under any law,
rule or regulation, the disclosing party shall (i)
give written notice of the intended disclosure to the
other party at least five (5) days in advance of the
date of disclosure, (ii) redact portions of this
Agreement to the fullest extent permitted
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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.
10.2 Publicity. Any and all publicity relating to this
Agreement and subsequent transactions between Yahoo
and Ashford and the method of its release shall be
approved in advance of the release, in writing, by
both Yahoo and Ashford. Subject to the pre-approval
restrictions of this Section 10.2, the parties agree
that Ashford may issue a press release relating to
this Agreement.
10.3 Nondisclosure Agreement. Yahoo and Ashford
acknowledge and agree that the Mutual Nondisclosure
Agreement terms attached as Exhibit F, shall be
incorporated by reference and made a part of this
Agreement, and shall govern the use and disclosure of
information and all discussions pertaining to or
leading to this Agreement.
10.4 User Data. 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 shall be retained by and owned
solely by Yahoo. All information and data provided to
Ashford on the Ashford Site or otherwise collected by
Ashford relating to user activity on the Ashford Site
shall be retained by and owned solely by Ashford.
Each party agrees to use any personally identifying
user information only as authorized by the user and
shall not disclose, sell, license or otherwise
transfer any such user information to any third party
without the consent of the user or use the user
information for the transmission of "junk mail,"
"spam," or any other unsolicited mass distribution of
information.
10.5 Privacy of User Information. Ashford shall ensure
that all information provided by users of the Ashford
Site is maintained, accessed and transmitted in a
secure environment and in compliance with industry
standard security specifications. Further, Ashford
shall provide a link to its privacy policy regarding
the protection of user data on those pages of the
Ashford Site where the user is requested to provide
personal or financial information.
11. INDEMNIFICATION.
11.1 Ashford, at its own expense, will indemnify, defend
and hold harmless Yahoo and its employees,
representatives, agents and affiliates, against any
third party claim, suit, action, or other proceeding
brought against Yahoo based on or arising from a
claim any Ashford Brand Feature, any material,
product or service produced, distributed, offered or
provided by Ashford, or any material presented on the
Ashford Site, infringes in any manner any copyright,
patent, trademark, trade secret or any other
intellectual property right of any third party, is or
contains any material or information that is obscene,
defamatory,
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libelous, slanderous, or that violates any law or
regulation, or that otherwise 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, breach of contract, injury, damage
or harm of any kind to any third party; provided,
however, that in any such case: (x) Yahoo provides
Ashford with prompt notice of any such claim; (y)
Yahoo permits Ashford to assume sole control over the
defense or settlement of such action upon Ashford's
written notice to Yahoo of its intention to
indemnify; and (z) upon Ashford's written request,
and at no expense to Yahoo, Yahoo will provide to
Ashford all available information and assistance
necessary for Ashford to defend and settle such
claim. Ashford will not enter into any settlement or
compromise of any such claim, which settlement or
compromise would result in any liability to Yahoo,
without Yahoo's prior written consent, which shall
not unreasonably be withheld. Ashford will pay any
and all costs, damages, and expenses (including, but
not limited to, reasonable attorneys' fees and costs
awarded against Yahoo) incurred by Yahoo in
connection with or arising from any such claim, suit,
action or proceeding.
11.2 Yahoo, at its own expense, will indemnify, defend and
hold harmless Ashford and its employees,
representatives, agents and affiliates, against any
claim, suit, action, or other proceeding brought
against Ashford based on or arising from [ * ];
provided, however, that in any such case: (x) Ashford
provides Yahoo with prompt notice of any such claim;
(y) Ashford permits Yahoo to assume sole control over
the defense and settlement of such action upon
Yahoo's written notice to Ashford of its intention to
indemnify; and (z) upon Yahoo's written request, and
at no expense to Ashford, Ashford will provide to
Yahoo all available information and assistance
necessary for Yahoo to defend and settle such claim.
Yahoo will not enter into any settlement or
compromise of any such claim, which settlement or
compromise would result in any liability to Ashford,
without Ashford's prior written consent, which shall
not unreasonably be withheld. Yahoo will pay any and
all costs, damages, and expenses, (including, but not
limited to, reasonable attorneys' fees and costs
awarded against Ashford) incurred by Ashford in
connection with or arising from any such claim, suit,
action or proceeding.
12. LIMITATION OF LIABILITY.
12.1 EXCEPT AS PROVIDED IN SECTION 11, UNDER NO
CIRCUMSTANCES SHALL ASHFORD, YAHOO, OR ANY AFFILIATE
BE LIABLE TO THE OTHER 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.
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13. INSURANCE.
13.1 Ashford agrees that it will maintain insurance with a
carrier that is reasonably acceptable to Yahoo and
with coverage for commercial general liability and
errors and omissions of at least [ * ] per
occurrence. Ashford will name Yahoo as an additional
insured on such insurance and will provide evidence
of such insurance to Yahoo within ten (10) days of
the Effective Date. Such insurance policy shall not
be cancelled or modified in a manner which makes such
policy non-compliant with this Section 13.1 without
Yahoo's prior written consent.
14. GENERAL PROVISIONS.
14.1 Independent Contractors. It is the intention of Yahoo
and Ashford that Yahoo and Ashford are, and shall be
deemed to be, independent contractors with respect to
the subject matter of this Agreement, and nothing
contained in this Agreement shall be deemed or
construed in any manner whatsoever as creating any
partnership, joint venture, employment, agency,
fiduciary or other similar relationship between Yahoo
and Ashford.
14.2 Entire Agreement. This Agreement, together with all
Exhibits hereto, represents the entire agreement
between Yahoo and Ashford with respect to the subject
matter hereof and thereof and shall supersede all
prior agreements and communications of the parties,
oral or written, including without limitation the
Letter of Agreement executed on or about June 1,
1999, between Yahoo and Ashford. The parties
acknowledge and agree that this Agreement shall have
no effect on the February 1999 Agreement and the
February 1999 Agreement shall remain in full force
and effect.
14.3 Amendment and Waiver. No amendment to, or waiver of,
any provision of this Agreement shall be effective
unless in writing and signed by both parties. The
waiver by any party of any breach or default shall
not constitute a waiver of any different or
subsequent breach or default.
14.4 Governing Law. This Agreement shall be governed by
and interpreted in accordance with the laws of the
State of California without regard to the conflicts
of laws principles thereof.
14.5 Successors and Assigns. Neither party shall assign
its rights or obligations under this Agreement
without the prior written consent of the other party,
which shall not unreasonably be withheld or delayed.
Notwithstanding the foregoing, either party may
assign this Agreement to an entity that acquires
substantially all of the stock or assets of a party
to this Agreement; provided that if the non-assigning
party 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, the
non-assigning party can terminate this Agreement for
convenience at any time after such an assignment. All
terms and provisions of this Agreement shall be
binding upon and inure to the benefit of the parties
hereto and their respective permitted transferees,
successors and assigns.
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14.6 Force Majeure. Neither party shall be liable for
failure to perform or delay in performing any
obligation (other than the payment of money) under
this Agreement if such failure or delay is due to
fire, flood, earthquake, strike, war (declared or
undeclared), embargo, blockade, legal prohibition,
governmental action, riot, insurrection, damage,
destruction or any other similar cause beyond the
control of such party.
14.7 Notices. All notices, requests and other
communications called for by this agreement shall be
deemed to have been given immediately if made by
facsimile or Electronic mail (confirmed by concurrent
written notice sent via overnight courier for
delivery by the next business day), if to Yahoo at
0000 Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxx, XX 00000, Fax:
(000) 000-0000 Attention: Vice President (e-mail:
[ * ]), with a copy to its General Counsel (e-mail:
[ * ]), and if to Ashford at the physical or
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.
14.8 Severability. If any provision of this Agreement is
held to be invalid, illegal or unenforceable for any
reason, such invalidity, illegality or
unenforceability shall not effect any other
provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or
unenforceable provision had never been contained
herein.
14.9 Sole Responsibility. Ashford will remain solely
responsible for the operation of the Ashford Site,
and Yahoo will remain solely responsible for the
operation of the Yahoo Main Site. Each party: (a)
acknowledges that the Ashford Site and the Yahoo Main
Site may be subject to temporary shutdowns due to
causes beyond the operating party's reasonable
control; and (b) subject to the terms of this
Agreement, retains sole right and control over the
programming, content and conduct of transactions over
its respective internet-based service.
14.10 Counterparts. This Agreement may be executed in two
counterparts, both of which taken together shall
constitute a single instrument. Execution and
delivery of this Agreement may be evidenced by
facsimile transmission.
14.11 Authority. Each of Yahoo and Ashford represents and
warrants that the negotiation and entry of this
Agreement will not violate, conflict with, interfere
with, result in a breach of, or constitute a default
under any other agreement to which they are a party.
14.12 Attorneys Fees. The prevailing party in any action to
enforce this Agreement shall be entitled to
reimbursement of its expenses, including reasonable
attorneys' fees.
[Signature page follows]
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This Advertising and Promotion Agreement has been executed by the duly
authorized representatives of the parties, effective as of the Effective Date.
YAHOO! INC. XXXXXXX.XXX
By: By:
------------------------- -------------------------
Name: Name:
----------------------- -----------------------
Title: Title:
----------------------- -----------------------
Attn: VP, Business Development Attn: VP, Business Development
3420 Central Expressway 0000 Xxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000 Xxxxxxx, XX 00000
Tel.: (000) 000-0000 Tel: 000-000-0000
Fax: [ * ] Fax: 000-000-0000
e-mail: [ * ] email: xxxxxxx@xxxxxxx.xxx
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EXHIBIT A
Ashford Banner Keywords:
[ * ]
Ashford Banner Categories:
[ * ]
Ashford Button Keywords:
[ * ]
Ashford Button Categories:
[ * ]
Dates for the Ashford Front Page Promotions: [ * ] through [ * ]; [ * ] through
[ * ]; and [ * ] through [ * ] or other dates as mutually agreed by the parties.
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EXHIBIT B
(ATTACH SCREEN SHOTS)
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EXHIBIT C
Wire Transfer Instructions
Yahoo's Bank Information:
Institution Name: [ * ]
Institution Address: [ * ]
ABA: [ * ]
Beneficiary Name: [ * ]
Beneficiary Account Number: [ * ]
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EXHIBIT D
Front Page Promotion Guidelines
The Front Page Promotion shall be in the form of a banner advertisement and
subsequent promotion pages, and shall have the following specifications and
characteristics (references to the "sponsor" apply to the advertiser on whose
behalf the front page promotion is run).
Banner Specifications:
Size: 230 pixels wide by 33 pixels high. File size must not exceed 3k.
The banner can animate for a period of not more than 6 seconds. No endless
looping is permitted. For a 14 day promotion campaign, the sponsor may run up to
6 different banners that will rotate equally.
Background Color: Backgrounds which are not transparent must have a color(s)
which are using a HSB color space, between 0% and 50% in saturation, and between
50% and 80% in brightness. The hue may be any value. Yahoo reserves the right to
define the portions of a submitted image that comprises the background.
Transparent backgrounds are permitted.
All banners are subject to aesthetic and content approval by Yahoo. All artwork
must be submitted to Yahoo at least five (5) business days prior to the
promotion's launch date. Yahoo reserves the right to review, reject or modify
any part of any creative at its sole discretion. The sponsor shall ensure that
their promotion complies in all respects with applicable laws and regulations.
The sponsor expressly understands and agrees that the approval of the official
rules for any promotion by Yahoo shall not constitute an opinion as to the legal
appropriateness or adequacy of such rules or their manner of use.
Sweepstakes Prizes: Yahoo requires that front page promotion sponsors provide a
prize package of a minimum retail value. Values for different types of front
page promotions are set forth below.
Type of Promotion:
Prize Package Minimum
Front Page Banner [ * ]
Front Page Text [ * ]
Prize values for multi-sponsored promotions vary.
Sponsor is responsible for all shipping/handling charges and any other expenses
associated with prize fulfillment.
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Sponsor is responsible for sending 1099 notifications to the promotion winners
and the IRS.
Sponsor shall deliver prizes to winning contestant within six (6) weeks of the
promotion's conclusion.
Sponsor hosted promotions.
A standard promotion hosted by the sponsor shall consist of the following:
Banner(s) or text links on a Yahoo hosted page that link to the sponsor hosted
promotion jump page.
A jump page consisting of promotion graphics, client graphics, copy/content and
contest description.
A rules page consisting of official rules that govern the promotion.
An entry form page consisting of promotion graphics and the entry form. The
entry form shall include the following disclaimer located directly next to the
"submit" button.
(Sponsor's Name) is solely responsible for the use of this information.
A thank you page consisting of graphics and text.
Total size of all graphics on each promotion page must be less than 35K. This is
to optimize loading times for contestants and to reduce the amount of people
that turn away from the promotion before the page loads.
If sponsor host's the promotion, sponsor further agrees to the following:
To allow Yahoo engineers to run a stress test program to test the sponsor's
server(s) capacity. A mutually agreed upon time will be arranged with sponsor to
run this test program, which simulates the traffic level that can be expected
from a front page promotion. Sponsor shall make necessary modifications to its
server capacity so that it will pass such test prior to the start date of the
promotion.
Submit promotion URLs at least five (5) business days prior to the starting date
of the promotion for Yahoo final approval (which may include Yahoo required
modifications to the promotion).
Sponsor may not post any contest page until it receives final approval of the
entire page from Yahoo.
Consistent with its privacy policy, Yahoo reserves the right to access all
aggregate information captured on entry form submissions through the promotion.
Sponsor agrees to provide such
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information to Yahoo immediately upon Yahoo's request. Yahoo's use of this
information will in all cases in accordance with its privacy policy.
Traffic sent to sponsor home page.
In order to send traffic from the promotional banner on Yahoo directly to a
sponsor's home page instead of a jump page, the following requirements must be
met, with no exceptions:
Sponsor agrees to create a customized prominent graphic dedicated to
prize/contest details to be displayed on sponsor's home page. Such graphic shall
always be above the fold of the sponsor's home page and link directly to the
sweepstakes page/entry form.
Total pixel area of the graphic must be at least 28,080 k or the equivalent of a
468x60 banner.
All artwork/creative must be submitted to Yahoo at least five (5) business days
prior to the promotion's start date.
Yahoo reserves the right to review, reject or modify any part of any creative at
its sole discretion.
Sponsor shall be responsible for the design, layout, posting and maintenance of
the promotion pages.
Sponsor shall operate the contest on computers and network hardware under its
ownership or control.
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EXHIBIT E
Treasure Xxxx Promotion Specifications
YAHOO! TREASURE XXXX: MATERIALS SPECS AND DUE DATES
Note: This is a general overview of the promotion's ad specs. When your
insertion order is completed, you will receive a customized version with the
game icon (gif) attached.
Welcome to Yahoo!'s Treasure Xxxx! Please take a few minutes to review this
information, which details all the program basics.
CLIENT DELIVERABLES
Note: All deliverables are DUE EVERY FRIDAY, 12:00 PM EST. New campaigns "go
live" every Wednesday.
OFFER PAGE URL
Yahoo! has final approval on all client creative submitted. If file size and
creative does not meet Yahoo! specifications, we reserve the right to reject
any/all deliverables.
Offer pages are client specific and client hosted (your opportunity put a
specific offer in front of your audience). These pages are linked with game
pages and will include a "Win It" sweepstakes button which users click on to
continue through Treasure Xxxx. These pages may contain email address opt-in
forms, software download capabilities, or links to other sites. OFFER PAGES MUST
NOT EXCEED 30K TO OPTIMIZE YAHOO!'S FAST PAGE LOADING STANDARDS. Include target
= "top" in the href tag if you have a framed site.
[GRAPHIC OMITTED]
Note: every offer page must include this button. If the button does not appear
on the offer page, Yahoo! will remove the page until the button is included.
Your redirect URL for the button will be assigned to you when your completed
insertion order is received.
BANNER
468 x 60 -- 12k max., no looping and maximum 6 second animation. This will be
served after a player has seen your site and clicked on the entry button. HTML
banners are not allowed. The banner only re-directs back to your offer page (not
your Web site).
[Note: We do not report impressions or banner click-through rates from banners.
The emphasis of the banner is to provide supplemental branding and stimulate
opt-ins.]
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OPT-IN OFFER
Maximum 50 characters. This will appear under your banner and must clearly
indicate what the player is signing up for (i.e. "Yes, I want more information
on space age widgets!"). Every week, you will receive a list of the e-mail
addresses of players who checked the box next to your OPT-IN offer. If players
request to be removed from this list, you will be responsible for removing them
once the list is in your possession.
EMAIL INSERTS (RESTRICTED TO CERTAIN PACKAGES)
Promotion focused e-mail messaging is sent once per week on Wednesday and
includes scoring information and 1-3 sponsor messages. Multi-sponsor e-mail
messages are 30 words long and placed in the center of the message.
Click-throughs from email inserts will be included in the following week's
report to sponsors.
REPORTING:
Once per week, Yahoo! will send you a report that includes:
o # of clicks delivered per offer page (broken down by day)
o The number of email inserts sent and click-through statistics from the
email inserts (if applicable)
Twice per month, Yahoo! will send you a report that includes:
o The list of the opt-in email addresses. Opt-ins will be reported distinctly
by landing page.
TERMS AND CONDITIONS
BANNERS ON TREASURE XXXX
The banners on Treasure Xxxx game pages provide supplemental branding and create
an opt-in email list for sponsors. Restrictions include:
o Banners must link back to the offer page within Treasure Xxxx. These
banners cannot link to other pages within sponsors' sites.
o Impressions and click-throughs from banners are not reported
separately, nor can multiple banners be rotated. One banner follows each
sponsor offer page.
o Third party ad banner serving is not allowed
o Clients may submit new offer page/banner pairs each week with the same
deliverable timeline as stated above.
MULTIPLE OFFER PAGE RULES
The number of offer pages scheduled to run must be clearly outlined in the
Insertion Order. If sponsors want to run multiple pages simultaneously, they
must spend at least $5,000 per page (For example, to run three pages
simultaneously, they will need to spend $15,000).
The number of clicks that we will deliver per offer page will be roughly equal
to the total clicks on the Insertion Order divided by the number of offer pages.
However, these are estimates and some variation is likely to occur.
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BACK BUTTON
The back button on sponsors' offer pages must be enabled. However, there is no
back button requirement for any pages deeper in sponsors' sites.
BROWSER SPAWNING
The offer page is not permitted to spawn a new browser window when users click
back into the promotion.
INTERSTITIAL
Sponsor interstitial between offer pages and game pages are not permitted.
Competitive advertising
Offer pages may not feature banner ads from Yahoo's online portal competitors.
SPECIAL REQUIREMENTS FOR THE "WELCOME" PAGE ON TREASURE XXXX
Sponsors can purchase clicks to the first page of the Treasure Xxxx promotion.
This high-profile page guarantees approximately 100% unique users. However, the
following restrictions apply:
o Unlike other offer pages in Treasure Xxxx, all offers on the Welcome
page are hosted by Yahoo! (including graphics). The sponsor must
provide the basic HTML and graphics to Yahoo! and Yahoo! will
re-purpose the material to fit within the space and page size
requirements.
o Graphics and HTML are limited to 20K and 500 pixels in width.
o Banner ads do not follow the Welcome page.
o Sponsors cannot put an email opt-in field in the Welcome page (or any
other type of form). Users must link to an email opt-in form.
o The Welcome page only provides general traffic; sponsors cannot reach
targeted selects from this page.
o Creative materials must be received 2 weeks before the launch date.
o The Insertion Order must specifically mention that the creative will
run on the Welcome Page.
CONTACTS FOR QUESTIONS AND COMMENTS:
Questions about ad specifications go directly to:
Xxxx Xxxxxx, Promotions Coordinator
xxxxx@xxxxx-xxx.xxx
(000) 000-0000
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EXHIBIT F
MUTUAL NONDISCLOSURE AGREEMENT TERMS
1. "Confidential Information" is that confidential, proprietary, and
trade secret information being disclosed by the disclosing party pursuant to
this Agreement.
2. Except as set forth in this Section 2, all Confidential Information
shall be in tangible form and shall be marked as Confidential or proprietary
information of the disclosing party. If the Confidential Information is
disclosed orally or visually, it shall be identified as such at the time of
disclosure and confirmed in a writing to the recipient within thirty (30) days
of such disclosure.
3. Each of the parties agrees that it will not make use of,
disseminate, or in any way disclose any Confidential Information of the other
party to any person, firm or business, except to the extent necessary for
negotiations, discussions, and consultations with personnel or authorized
representatives of the other party and any purpose the other party may hereafter
authorize in writing. Each of the parties agrees that it shall disclose
Confidential Information of the other party only to those of its employees who
need to know such information and who have previously agreed, either as a
condition to employment or in order to obtain the Confidential Information, to
be bound by terms and conditions substantially similar to those set forth in
this Exhibit D.
4. There shall be no liability for disclosure or use of Confidential
Information which is (a) in the public domain through no fault of the receiving
party (b) rightfully received from a third party without any obligation of
confidentiality, (c) rightfully known to the receiving party without any
limitation on use or disclosure prior to its receipt from the disclosing party,
(d) independently developed by the receiving party (e) generally made available
to third parties without any restriction on disclosure, or (f) communicated in
response to a valid order by a court or other governmental body, as otherwise
required by law, or as necessary to establish the rights of either party under
this Agreement (provided that the party so disclosing has provided the other
party with a reasonable opportunity to seek protective legal treatment for such
Confidential Information).
5. Each of the parties agrees that it shall treat all Confidential
Information of the other party with the same degree of care as it accords to its
own Confidential Information, and each of the parties represents that it
exercises reasonable care to protect its own Confidential Information.
6. Each of the parties agrees that it will not modify, reverse
engineer, decompile, create other works from, or disassemble any software
programs contained in the Confidential Information of the other party unless
otherwise specified in writing by the disclosing party.
7. All materials (including, without limitation, documents, drawings,
models, apparatus, sketches, designs and lists) furnished to one party by the
other, and which are
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designated in writing to be the property of such party, shall remain the
property of such party and shall be returned to it promptly at its request,
together with any copies thereof.
8. This terms set forth in this Exhibit D shall govern all
communications between the parties that are made during the period from the
Effective Date to the date on which either party receives from the other written
notice that subsequent communications shall not be so governed, provided,
however, that each party's obligations under Sections 2 and 3 with respect to
Confidential Information of the other party which it has previously received
shall continue unless and until such Confidential Information falls within
Section 4. Neither party shall communicate any information to the other in
violation of the proprietary rights of any third party.
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EXHIBIT G
ASHFORD COMPETITORS
--------------------------------------------------------------------------------
COMPANY WEBSITE
--------------------------------------------------------------------------------
[ * ] [ * ]
--------------------------------------------------------------------------------
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EXHIBIT H
TRADEMARK USAGE GUIDELINES
1. General. All Yahoo Brand Features will be used only as explicitly
licensed by Yahoo, and only under the terms and conditions and for the purposes
described in such license. The other party to such license shall herein be
referred to as the "Licensee". All such uses shall be in a manner consistent
with the following guidelines.
2. Appearance of Logos. The Licensee shall ensure that the presentation
of the Yahoo Brand Features shall be consistent with Yahoo's own use of the
Yahoo Brand Features in comparable media.
3. Notices. All trademarks and service marks included in the Yahoo
Brand Features shall be designated with "SM", "TM" or "(R)", in the manner
directed by Yahoo.
4. Appearance. From time to time during the term of the license, Yahoo
may provide the Licensee with guidelines for the size, typeface, colors and
other graphic characteristics of the Yahoo Brand Features, which upon delivery
to the Licensee shall be deemed to be incorporated into these "Yahoo Trademark
Usage Guidelines".
5. Restrictions Upon Use. The Yahoo Brand Features shall not be
presented or used:
A. in a manner that could be reasonably interpreted to suggest
editorial content has been authored by, or represents the views or
opinions of, Yahoo or any Yahoo personnel;
B. in a manner that is misleading, defamatory, libelous,
obscene or otherwise objectionable, in Yahoo's reasonable opinion;
C. in a way that infringes, derogates, dilutes or impairs the
rights of Yahoo in the Yahoo Brand Features;
D. as part of a name of a product or service of a company
other than Yahoo, except as expressly provided in a written agreement
by Yahoo.
6. Nonexclusive Remedy. The Licensee will make any changes to its use
of the Yahoo Brand Features as requested by Yahoo. The foregoing remedy shall be
in addition to any other legal and equitable rights that Yahoo may possess
relating to Licensee's use of the Yahoo Brand Features.
7. Revisions. These Guidelines may be modified at any time by Yahoo
upon written notice to the Licensee.
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