ADVERTISING AND PROMOTION AGREEMENT
EXHIBIT 10.18
This Advertising and Promotion Agreement (the "Agreement") is entered into
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as of June 7, 1999 (the "Effective Date") between Yahoo! Inc., a Delaware
Corporation ("Yahoo") and U.S. XXXXXX.xxx Inc., a Delaware corporation ("1-800
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U.S. SEARCH").
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In consideration of the mutual promises contained in this Agreement, Yahoo
and 0-000 X.X. SEARCH hereby agree as follows:
1. Definitions.
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The following terms are used in this Agreement with the respective meanings
set forth below:
"1-800 U.S. SEARCH Banner Advertisements" means banner advertisements
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meeting Yahoo's standard requirements and that: (a) promote the products and
services of 0-000 X.X. SEARCH, (b) have dimensions no larger than 468 pixels
wide by 60 pixels high, (c) do not have "looped" animation, (d) do not have any
animation longer than six seconds, (e) have a file size of no greater than 12K,
(f) [*] and (g) will permit users to navigate directly to a page on the
0-000 X.X. SEARCH dedicated to the online purchase of Public Record Information.
"1-800 U.S. SEARCH Link" means any link placed by Yahoo under this
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Agreement, including, without limitation, the 0-000 X.X. SEARCH Banner
Advertisements, and 0-000 X.X. SEARCH Search Module, Graphic Link, and
Functional Text Link.
"1-800 U.S. SEARCH Marks" means all domain names, trademarks and logos
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(collectively, the "Marks") of 0-000 X.X. SEARCH designated by 0-000 X.X. SEARCH
for Yahoo's use in conjunction with Yahoo's performance under this Agreement.
"1-800 U.S. SEARCH Search Module" means a search module that: (a) [*]
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(b) contains the 0-000 X.X. SEARCH name, logo or other 0-000 X.X. SEARCH Marks
(or any Xxxx that is a successor company of 0-000 X.X. SEARCH) and (c) [*]
"1-800 U.S. SEARCH Site" means the web site owned or operated by 0-000 X.X.
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SEARCH currently located at xxxx://xxx.0000xxxxxxxx.xxx or any sub pages that is
dedicated to providing users with online access and the ability to search for
Public Record Information.
"Functional Text Link" means a text link that: (a) contains, at 1-800 U.S.
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SEARCH's option either (1) a 0-000 X.X. SEARCH Xxxx, without graphic, (or any
Xxxx that is a successor
[*] = Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
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company of 0-000 X.X. SEARCH) or (2) a textual reference to the services of 1-
800 U.S. SEARCH relevant to the listing where the link appeared that is mutually
agreed to by the parties, (b) is of no more than 21 characters (including
spaces), [*] (c) permits users to navigate directly to a page on the 0-000 X.X.
SEARCH Site dedicated to the online purchase of Public Record Information
specific to the listing where the link appeared.
"Graphic Link" shall mean a link that: (a) contains a 0-000 X.X. SEARCH
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Xxxx (or any Xxxx that is a successor company of 0-000 X.X. SEARCH), (b) has
dimensions no larger than 88 pixels wide by 31 pixels high (c) has a maximum
file size of less than 2 KB, (d) is accompanied by a text link of no more than
twenty-five (25) characters, (e) does not contain animation and (f) permits
users to navigate directly to a page on the 0-000 X.X. SEARCH Site dedicated to
providing users with online access to and the ability to search for Public
Record Information.
"Page View" means a user's request for a page on a world wide web site.
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"Public Record Information" includes information about individuals and
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businesses that is obtained from the records of local, state and federal
government agencies and entities and also includes publicly available
information from non-government sources.
"Term" means the period beginning on the date this Agreement is fully
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executed and continuing until [*].
"Yahoo Main Site" means Yahoo's principal U.S. based directory to the World
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Wide Web currently located at xxxx://xxx.xxxxx.xxx.
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"Yahoo People Search" means Yahoo's U.S. based service that is part of
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Yahoo Main Site and is currently located at xxxx://xxxxxx.xxxxx.xxx that allows
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users to search for and access individual telephone numbers and email addresses.
"Yahoo Properties" means any Yahoo branded or co-branded media properties,
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including, without limitation, Internet guides, that are developed in whole or
in part by Yahoo or its affiliates.
2. 0-000 X.x. Search Search Module. Subject To Section 5.6 Hereof:
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2.1 Yahoo will place a Graphic Link and a 0-000 X.X. SEARCH Search Module
on (a) the top page of Yahoo People Search in a manner substantially
similar to the example set forth in Exhibit A, (b) the page of Yahoo
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People Search that results when no listings are returned on a search
query submitted on Yahoo People Search for a telephone listing in a
manner substantially similar to the example set forth on Exhibit B,
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(c) the page of Yahoo People Search that results when no listings are
returned on a search query submitted on Yahoo People Search for an
email address in a manner substantially similar to the example set
forth on Exhibit
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[*] = Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
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C, and (d) the page of Yahoo People Search that results when a user
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chooses to conduct an advanced email search in a manner substantially
similar to the example set forth on Exhibit D.
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2.2 Yahoo will place a Functional Text Link and a Graphic Link on (a) the
page of Yahoo People Search that results when telephone listings are
returned on a search query submitted on Yahoo People Search for a
telephone listing in a manner substantially similar to the example set
forth on Exhibit E and (b) the page of Yahoo People Search that
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results when email listings are returned on a search query submitted
on Yahoo People Search for an email address in a manner substantially
similar to the example set forth on Exhibit F. [*]
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2.3 [*] such that when a user clicks on the Functional Text Link placed
(a) in telephone listings, [*] and (b) in email listings, [*].
2.4 [*]. All search queries submitted via the 0-000 X.X. SEARCH Search
Module shall direct the user to a page on the U.S. SEARCH Site with
the ability to search for Public Record Information.
3. 0-000 X.X. Search Banner Advertisements. Subject to Section 5.6 hereof:
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3.1 Yahoo shall place 1-800 U.S. SEARCH Banner Advertisements on certain
directory and keyword search result pages of the Yahoo Main Site
described on Exhibit G.
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3.2 All 0-000 X.X. SEARCH Banner Advertisements shall be [*] Yahoo's
standard insertion orders to be completed upon execution of this
Agreement.
4. Representations And Warranties.
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[*] = Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
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0-000 X.X. SEARCH represents and warrants that (a) it is in compliance with
[*] rules and regulations of any and all governmental entities or agencies
of any jurisdiction, (b) it is in compliance with [*] laws, rules and
regulations of any jurisdiction, including, without limitation, all
federal, state, and local rules and regulations relating to consumer
protection, privacy, the promotion, distribution, reproduction and sale of
any and all material, content, products and services offered, provided or
distributed on the 0-000 X.X. SEARCH Site and [*] that is material to its
business and the satisfaction of its obligations under this Agreement and
(c) there are no pending or threatened claims, suits, actions or charges
against it alleging any violation of any of rules and regulations referred
to in clauses (a) and (b) above.
5. Implementation.
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5.1 Yahoo [*] user interface and placement of the 0-000 X.X. SEARCH
Links. 0-000 X.X. SEARCH shall promptly provide Yahoo all URLs, URL
formats (as applicable), content, and other materials necessary for
Yahoo to provide the 0-000 X.X. SEARCH Links. All content and material
contained in the 0-000 X.X. SEARCH Links is subject to Yahoo's
approval, such approval shall not be unreasonably withheld 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.
5.2 0-000 X.X. SEARCH hereby grants to Yahoo a non-exclusive, worldwide,
fully paid license to use, reproduce and display the 0-000 X.X. SEARCH
Marks (a) to indicate the location of the 0-000 X.X. SEARCH Links as
set forth herein and (b) in connection with the marketing and
promotion of 0-000 X.X. SEARCH in the Yahoo Properties. Yahoo's use of
the 0-000 X.X. SEARCH Marks is subject to the 0-000 X.X. SEARCH
trademark guidelines set forth in Exhibit K hereto. Yahoo shall not
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take any actions inconsistent with 1-800 U.S. SEARCH's ownership of
the 0-000 X.X. SEARCH Marks, and any benefit accruing from use of such
0-000 X.X. SEARCH Marks shall automatically vest in the owner.
5.3 In no event shall the first page on the 0-000 X.X. SEARCH Site to
which users directly click-through from any link placed by Yahoo in
connection with this Agreement, including, without the 0-000 X.X.
SEARCH Links, [*].
[*] = Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
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5.4 [*] Yahoo hereby grants to 0-000 X.X. SEARCH a non-exclusive,
worldwide, fully paid license to use, reproduce and display the Yahoo
name and logo to indicate the location of the Yahoo graphic link as
set forth herein.
5.5 The 0-000 X.X. SEARCH Site shall [*] The 0-000 X.X. SEARCH Site shall
comply with the scale, speed and performance requirements consistent
with other merchants participating in programs of similar scope and
nature on the Yahoo Main Site.
5.6 Yahoo will place the 0-000 X.X. Search Graphic Links, Search Modules,
Functional Text Links and Banner Advertisements as provided in Section
2.1, 2.2 and 3.1 [*]
6. Exclusivity; Right Of First Presentation.
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6.1 During the Term, Yahoo will not place advertisements on behalf of or
integrate a third party in Yahoo People Search which [*] with respect
to any of the following services relating to individuals and
businesses [*]
6.2 0-000 X.X. SEARCH acknowledges that, notwithstanding the limited
exclusivity set forth in Section 6.1, (a) Yahoo shall not be precluded
from incorporating or otherwise advertising or promoting [*] mapping
services, [*]
[*] = Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
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[*] including Yahoo People Search (subject to the exclusivity set
forth in Section 6.1 above and the terms set forth in Section 6.4
below), (b) Yahoo may honor its current contracts [*] (c) Yahoo shall
not be precluded from including links (but not advertising and
promotional links) to any entity in any directory, merchant listing or
other shopping service or feature on any Yahoo Property, (d) except as
expressly set forth in this Agreement, Yahoo shall not be restricted
from placing advertisements and promotions for or on behalf of other
entities that provide services similar to that provided on the 0-000
X.X. SEARCH Site, including without limitation, location services for
individuals and businesses, public records reports, verification and
background check services and conducting its normal course of business
with such entities on any Yahoo Property other than Yahoo People
Search.
6.3 In the event that Yahoo intends to create, develop or otherwise make
available a new advertising opportunity that integrates a third party
public records search module for Public Records Information similar in
scope and nature to the 0-000 X.X. SEARCH Module described in this
Agreement on a site directed to a U.S. audience that is solely "Yahoo"
branded, maintained, controlled and hosted by Yahoo, [*]
6.4 [*]
[*] = Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
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[*]
7. Page Views.
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7.1 During the Term, Yahoo will deliver [*] Page Views ("Total Page
Views") of 0-000 X.X. SEARCH Links as measured by Yahoo's online
reporting system consisting of the following:
[*] and
[*]
7.2 0-000 X.X. SEARCH may apply [*] towards 0-000 X.X. SEARCH Banner
Advertisements placed on those U.S. based Yahoo Properties mutually
agreed upon by both parties, subject to availability, and [*].
[*] = Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
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7.3 0-000 X.X. SEARCH will have the right to [*] as follows:
. After September 15, 1999, and with thirty (30) days prior written
notice to Yahoo, 0-000 X.X. SEARCH [*]. The Page View breakdown
and value of placement for email results pages, email no results
pages, and email advanced search is indicated in Exhibit J
(Insertion Order)
. In addition, in the event that [*]
. In the event [*] The "make good" provision of Section 7.4 shall
still apply to such advertising. All such advertising will be
placed [*].
7.4 In the event that Yahoo fails to deliver the Total Page Views by the
expiration of the Term, Yahoo will "make good" the shortfall by
extending its obligations for placement under Sections 2 and 3 beyond
the end of the Term until such Page View obligation is satisfied and
[*]. The provisions set forth in this Section
[*] = Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
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7.4 set forth the entire liability of Yahoo, and 0-000 X.X. SEARCH's
sole remedy, for Yahoo's breach of its Page View obligations set forth
in Section 7.1.
7.5 Yahoo will provide 0-000 X.X. SEARCH with access to Yahoo's online
reporting statistics that provide (in reasonable detail) Yahoo's
calculation of the Page Views delivered during each month during the
Term. Calculation of Page Views are made in accordance with Yahoo's
established controls over its measurement and reporting of advertising
impressions. Online reports of page views are audited by the Audit
Bureau of Circulations (ABC Interactive). Ernst & Young, LLP has
reviewed and examined the effectiveness Yahoo's controls over its
advertising measurement and reporting functions and the use of
standard methodologies and metrics as defined by the Internet
Advertising Bureau (IAB).
8. Compensation.
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8.1 Slotting Fee. In consideration of Yahoo's performance and obligations
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as set forth herein, 0-000 X.X. SEARCH will pay Yahoo [*] (the
"Payment"). [*] The aggregate sum of the Payments shall equal to
nine million two hundred thousand dollars ($9,200,000) (the "Total
Contract Payment"). [*]
Payment Date
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$ [*] [*]
$ [*] [*]
$ [*] [*]
$ [*] [*]
[*] = Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
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8.2 Payment Information. All payments herein [*] and shall be made by
0-000 X.X. SEARCH via wire transfer into Yahoo's main account pursuant
to the wire transfer instructions set forth on Exhibit H.
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8.3 Late Payments. Any portion of the above payments which has not been
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paid to Yahoo within ten (10) days of the dates set forth above shall
bear interest at the lesser of (i) one percent (1%) per month or (ii)
the maximum amount allowed by law. Notwithstanding the foregoing, any
failure by 0-000 X.X. SEARCH to make the payments specified in Section
8.1 on the dates set forth therein shall constitute a material breach
of this Agreement.
8.4 Credit Worthiness: 0-000 X.X. SEARCH shall provide to Yahoo, at
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Yahoo's request at any time after the IPO of 0-000 X.X. SEARCH, [*].
9. Termination.
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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 Yahoo. This Agreement may be terminated by Yahoo (a)
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immediately upon written notice (i) if 0-000 XX SEARCH does not pay
[*] or (ii) if [*] or (B) with
[*] = Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
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[*].
9.3 Termination by Either Party with Cause. This Agreement may be
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terminated at any time by either party: (i) immediately upon written
notice if the other party: (a) becomes 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 material breach of any of its obligations
under this Agreement (ten (10) days in the case of a failure to pay),
which breach is not cured within such notice period. [*] In the event
that Yahoo provides a notice of termination under this Section 9.3,
[*]. If during the first six months of the Agreement, 0-000 X.X.
SEARCH terminates this Agreement due to a material breach by Yahoo,
then [*]. If, after the first six months of this Agreement, 0-000 X.X.
SEARCH terminates this Agreement due to a material breach by Yahoo,
[*] In any event, [*].
[*] = Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
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9.4 Survival. The provisions of Sections 1, 7.3 and 10.14 shall survive
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expiration or termination of this Agreement.
10. Confidential Information And Publicity.
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10.1 Terms and Conditions. The terms and conditions of this Agreement shall
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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.
10.2 Publicity. Any and all publicity relating to this Agreement and
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subsequent transactions between Yahoo and 0-000 X.X. SEARCH and the
method of its release shall be approved in advance of the release by
both Yahoo and 0-000 X.X. SEARCH.
10.3 Nondisclosure Agreement. Yahoo and 0-000 X.X. SEARCH acknowledge and
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agree to the terms of the Mutual Nondisclosure Agreement attached
hereto as Exhibit with respect to the use and disclosure of
confidential information and all discussions pertaining to or leading
to this Agreement.
10.4 User Data. [*] Each party agrees to use such information only as
authorized by the user and shall not disclose, sell, license or
otherwise transfer any such user information to any third party or use
the user information for the transmission of "junk mail", "spam", or
any other unsolicited mass distribution of information. Neither party
shall be restricted from sending promotions via e-mail to its
respective users who have indicated that they are willing to receive
such promotions.
10.5 Privacy of User Information. 0-000 X.X. SEARCH shall ensure that all
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information provided by users of the 0-000 X.X. SEARCH Site is
maintained, accessed and transmitted in a secure environment and in
compliance with its privacy policy and the security specifications to
be mutually agreed upon by the parties. 0-000 X.X. SEARCH shall
provide a link to its policy (or to Yahoo's policy) regarding the
protection of user data on those pages of the 0-000 X.X. SEARCH Site
where the user is requested to provide personal or financial
information.
[*] = Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
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11. Indemnification.
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0-000 X.X. SEARCH, at its own expense, will indemnify, defend and hold
harmless Yahoo and its employees, representatives, agents and affiliates,
against any claim, suit, action, or other proceeding brought against Yahoo
based on or arising from a claim that (a) would constitute a breach of any
representation and warranty contained in Section 6, (b) any 0-000 X.X.
SEARCH trademark, service xxxx or other 0-000 X.X. SEARCH brand feature,
any material, product or service produced, distributed, offered or provided
by 0-000 X.X. SEARCH, or any material presented on the 0-000 X.X. SEARCH
Site, or any site that is linked from the 0-000 X.X. SEARCH 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, 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 0-000 X.X. SEARCH with prompt notice of any such claim; (y)
Yahoo permits 0-000 X.X. SEARCH to assume and control the defense of such
action upon 0-000 X.X. SEARCH's written notice to Yahoo of its intention to
indemnify; and (z) upon 0-000 X.X. SEARCH's written request, and at no
expense to Yahoo, Yahoo will provide to 0-000 X.X. SEARCH all available
information and assistance necessary for 0-000 X.X. SEARCH to defend such
claim. 0-000 X.X. SEARCH 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. 0-000 X.X. SEARCH 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 in connection
with or arising from any such claim, suit, action or proceeding.
[*]
[*] = Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
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[*]
12. Limitation Of Liability.
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EXCEPT AS PROVIDED IN SECTION 11, UNDER NO CIRCUMSTANCES SHALL US SEARCH,
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.
13. Insurance.
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0-000 X.X. SEARCH agrees that it will maintain insurance with a carrier
that is reasonably acceptable by Yahoo and with coverage for commercial
general liability and errors and omissions of at least one million dollars
per occurrence. 0-000 X.X. SEARCH 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 without Yahoo's prior written consent.
14. General Provisions.
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14.1 Independent Contractors. It is the intention of Yahoo and 0-000 X.X.
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SEARCH that Yahoo and 0-000 X.X. SEARCH 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 0-000 X.X. SEARCH.
14.2 Entire Agreement. This Agreement, together with all Exhibits,
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represents the entire agreement between Yahoo and 0-000 X.X. SEARCH
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 dated
April 27, 1999, between Yahoo and 0-000 X.X. SEARCH.
14.3 Amendment and Waiver. No amendment to, or waiver of, any provision of
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this Agreement shall be effective unless in writing and signed by both
parties. The
[*] = Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
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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
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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
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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 who acquires substantially all of the stock or assets of
a party to this Agreement; provided that consent will be required in
the event that the non-assigning party reasonably determines that the
assignee will not have sufficient capital or assets to perform its
obligations hereunder, or that the assignee is a direct competitor of
the non-assigning party. 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.
14.6 Force Majeure. Neither party shall be liable for failure to perform or
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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
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this agreement shall be deemed to have been given immediately if made
by telecopy or Electronics 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: Senior Vice President (e-mail:
xxxxx@xxxxx-xxx.xxx), with a copy to its General Counsel (e-
mail:xxxxxx@xxxxx-xxx.xxx), and if to 0-000 X.X. SEARCH at the
physical and Electronics 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
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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.
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14.9 Sole Responsibility. 0-000 X.X. SEARCH will remain solely responsible
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for the operation of the 0-000 X.X. SEARCH Site, and Yahoo will
remain solely responsible for the operation of the Yahoo Main Site.
Each party: (a) acknowledges that the 0-000 X.X. SEARCH 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,
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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 0-000 X.X. SEARCH represents and
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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
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Agreement shall be entitled to reimbursement of its expenses,
including reasonable attorneys' fees.
This Advertising and Promotion Agreement has been executed by the duly
authorized representatives of the parties, effective as of the Effective Date.
Yahoo! Inc. U.s. Search, Inc.
By: /s/ Xxxx Xxxxx By: /s/ Xxxxxx X. Xxxxxxxx
----------------------- -----------------------------
Name: Xxxx Xxxxx Name: Xxx Xxxxxxxx
--------------------- ---------------------------
Title: SVP Title: Vice President Operations
-------------------- --------------------------
Attn: Senior VP Sales Attn: Vice President Operations
34200 Central Expressway 0000 Xxxxxxxx Xxxx, Xxx. 000
Xxxxx Xxxxx, XX 00000 Xxxxxxxx Xxxxx, XX 00000
Tel.: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
e-mail: xxxxx@xxxxx-xxx.xxx e-mail: xxxxxxxxx@0000xxxxxx.xxx
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EXHIBIT A
0-000 X.X. SEARCH Module
xxxx://xxxxxx.xxxxx.xxx/xxxxxxxxx/xx/000/0-000Xxxxxx.xxxx
---------------------------------------------------------
Top Page Yahoo People Search
(screenshot of Top Page Yahoo People Search)
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EXHIBIT B
Phone No Results
(screenshot of Phone No Results page)
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EXHIBIT C
Email No Results
(screenshot of Email No Results page)
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EXHIBIT D
Email Advanced Search
(screenshot of Email Advanced Search page)
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EXHIBIT E
Phone Results
(screenshot of Phone Results page)
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EXHIBIT F
Email Results
(screenshot of Email Results page)
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EXHIBIT G
Directory and Keyword Results Pages Of Yahoo! Main Site
[*]
[*] = Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
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EXHIBIT H
Wire Transfer Instructions
Yahoo's Bank Information:
Institution Name: [*]
Institution Address: [*]
ABA: [*]
Beneficiary Name: [*]
Beneficiary Account Number: [*]
[*] = Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
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EXHIBIT I
MUTUAL NON-DISCLOSURE AGREEMENT
This Agreement governs the disclosure of information by and between Yahoo!
Inc., a California corporation, and ___________________________________________
("Participant").
1. The "Confidential Information" is that confidential, proprietary, and
trade secret information being disclosed by the disclosing party described as
(please be specific):
(a) Yahoo Confidential Information (owned by Yahoo and any of its
affiliates)___________________________________________________________
______________________________________________________________________
______________________________________________________________________
_____________________________________________
(b) Participant Confidential Information
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
________________________
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 of this Agreement.
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
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party with a reasonable opportunity to seek protective legal treatment for such
Confidential Information).
5. "Residual Information" shall mean any Confidential Information of the
disclosing party which may be retained in intangible form in the minds of those
individuals of the receiving party who have had proper access to such
Confidential Information. Notwithstanding anything else in this Agreement, the
receiving party shall be free to use any Residual Information for any purpose
whatsoever, including, without limitation, the development of its own products,
or business, provided that such party shall not be entitled to disclose Residual
Information to any third parties unless such disclosure is in the course of, or
as part of, any disclosure of its own products or business or their development.
6. 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.
7. 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.
8. All materials (including, without limitation, documents, drawings,
models, apparatus, sketches, designs and lists) furnished to one party by the
other, and which are 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.
9. This Agreement shall govern all communications between the parties
that are made during the period from the effective date of this Agreement 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 Sections 4 or 5.
Neither party shall communicate any information to the other in violation of the
proprietary rights of any third party. Neither party acquires any licenses
under any intellectual property rights of the other party under this Agreement.
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EXHIBIT J
Insertion Order
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EXHIBIT K
1-800-US SEARCH TRADEMARK GUIDELINES
1. General. All 0-000 X.X. Search trademarks, logos, service marks, trade dress,
slogans, etc, or other brand features (collectively the "Brand Features") will
be used only as explicitly licensed by 0-000 X.X. Search, 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 proper usage of the 0-000 X.X. Search
Brand Features.
2. Appearance of Logos. The Licensee shall ensure that the presentation of the
1-800 U.S. Search Brand Features shall be consistent with 0-000 X.X. Search's
own use of the 1-800 U.S. Search Brand Features in comparable media.
3. Notices. All trademarks and service marks included in the 0-000 X.X. Search
Brand Features shall be designated with "SM", "TM" or "(R)", in the manner
directed by 1-800 U.S. Search.
4. Appearance. From time to time during the term of the license, 0-000 X.X.
Search may provide the Licensee with written guidelines for the size, typeface,
colors and other graphic characteristics of the 0-000 X.X. Search Brand
Features, which upon delivery to the Licensee shall be deemed to be incorporated
into these "1-800 U.S. Search Trademark Usage Guidelines".
5. Restrictions Upon Use. The 1-800 U.S. Search 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,
0-000 X.X. Search or any 1-800 U.S. Search personnel;
b. in a manner that is misleading, defamatory, libelous, obscene or
other wise objectionable, in 0-000 X.X. Search's reasonable opinion;
c. in a way that infringes, derogates, dilutes or impairs the rights
of 0-000 X.X. Search in the 0-000 X.X. Search Brand Features;
d. as part of a name of a product or service of a company other than
0-000 X.X. Search, except as expressly provided in a written agreement by
0-000 X.X. Search.
6. Remedy. The Licensee will make any changes to its use of the 0-000 X.X.
Search Brand Features as are reasonably requested by 0-000 X.X. Search.
7. Revisions. These Guidelines may be modified at any time by 0-000 X.X. Search
upon written notice to the Licensee.
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EXHIBIT L
[*]
[*]
[*] = Certain information in this exhibit has been omitted and filed separately
with the commission. Confidential treatment has been requested with respect to
the omitted portions.
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