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CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN REDACTED PROVISIONS OF
THIS AGREEMENT. THE REDACTED PROVISIONS ARE IDENTIFIED BY THREE ASTERISKS AND
ENCLOSED BY BRACKETS. THE CONFIDENTIAL PORTION HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT 10.21
GEOCITIES PAGES THAT PAY MERCHANT AGREEMENT
This Merchant Agreement ("Agreement") is entered as of March 1, 1999
(the "Effective Date") by and between GeoCities, a California corporation, with
its principal place of business at 0000 Xxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxxx,
Xxxxxxxxxx 00000 ("GeoCities"), and Xxxxxxx.xxx, Inc., a Delaware corporation,
with its principal place of business at 0000 Xxxxxxx Xxxxxx, Xxxxxx xxx Xxx, XX
00000 ("Merchant").
WHEREAS, GeoCities operates a leading community-oriented World Wide Web
("Web") site (the "GeoCities Site", deemed to include successor and related Web
sites) and has organized a GeoCities-branded affiliates programs under the name
"pages That Pay" comprising a network of affiliated Web sites and a
corresponding network of merchant Web sites whereby certain affiliate sites are
linked to certain merchant Web sites and merchants compensate such affiliates
for certain commercial activities on such merchant sites which result from user
traffic for which the affiliates are directly responsible;
WHEREAS, GeoCities has entered into an agreement with Be Free, Inc.
("Be Free"), for, among other things, Be Free to administer such affiliates
program using its leading edge proprietary technology and services (the "Be Free
Agreement");
WHEREAS, the parties hereto desire that Merchant participate in the
GeoCities affiliates program as a merchant;
AND WHEREAS, GeoCities is willing to enroll Merchant in the affiliates
program under the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. DEFINITIONS.
1.1 "Affiliate(s)" means an individual or legal entity which GeoCities
deems eligible to participate in the Program, agrees to certain terms and
conditions of membership, and places a Qualifying Link on its own Website for
the purpose of referring sales to Merchant for a Commission.
1.2 "Affiliate Pageview" means the successful move of a Visitor from an
Affiliate's Website to Merchant's Website directly through the use of a
Qualifying Link.
1.3 "Banner Impression" means a Web page containing a Merchant
advertising banner, Merchant text mention or hyperlink to the Merchant Website
transmitted by the GeoCities Site in response to a request from a third-party
Internet user entitled to interact with the GeoCities Site (whether or not such
user receives the tramitted Web page).
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1.4 "Confidential Information" of a Disclosing Party shall mean the
following, to the extent previously, currently or subsequently disclosed to the
other party hereunder or otherwise: information relating to products, services
or technology of the Disclosing Party or the properties, composition, structure,
organization, use or processing thereof, or systems therefor, or to the
Disclosing Party's business (including, without limitation, computer programs,
code, algorithms, schematics, data, know-how, processes, ideas, inventions
(whether patentable or not), names and expertise of employees and consultants
and other technical, business, financial, customer and product development
plans, forecasts, strategies and information). In particular, but without
limitation, Program Technology and modifications or improvements thereto by
whomever made shall be considered Confidential Information of GeoCities.
1.5 "Commission(s)" shall mean the fee(s) Merchant shall pay to
Affiliates for Qualifying Transactions under this Agreement as specified in
Addendum No. 1 to this Agreement (attached hereto).
1.6 "Customer Data" means any and all information reasonably obtainable
in connection with commercial transactions enabled or facilitated through the
Program concerning GeoCities Members, Affiliates Visitors and/or merchants,
whether in separately identifiable or aggregated form, including, without
limitation, first or last name; e-mail or other address; postal code; gender or
other demographic characteristics; year or date of birth; social security or
other tax identification number; occupation or other socio-economic or financial
information; nature, subject matter, date or amount paid in any commercial
transaction(s); number or identification of viewed/downloaded Website(s);
preferences or habits; and any other identifying information, whether or not
actually provided, collected, derived or deducted, and regardless or its
accuracy or completeness.
1.7 "Disclosing Party" shall mean a party hereto that discloses its
Confidential Information to the other party.
1.8 "FTC Order" means that certain "Agreement Containing Consent Order"
issued by the U.S. Federal Trade Commission on June 11, 1998, attached hereto as
Exhibit B as well as any and all subsequent or related official materials,
regulations, laws judgement or orders.
1.9 "GeoCities Member" means a GeoCities customer or other individual
or entity which, according to GeoCities' then-current policies and procedures is
entitled to participate in the Program as an Affiliate.
1.10 "Program" means the network of participating affiliates and
merchants, subject to the terms of applicable separate agreements, in GeoCities'
"Pages That Pay" affiliates program wherein (a) affiliates are enabled to
generate hypertext links ("Links") from their personalized Web pages to
participating merchant Web sites, (b) encourage/enable Visitors to affiliate Web
pages to use Links to make purchases and otherwise interact with merchant
Websites, and (c) receive compensation on an agreed upon basis with respect to
commercial activity generated by such Link.
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1.11 "Program Technology" means any software (in object code form
only), hardware or other technology provided to Merchant by BeFree or GeoCities
relating to the Program, and all updates, improvements, patches, upgrades, and
bug fixes thereof.
1.12 "Qualifying Link" means a graphics or textual link from an
Affiliate's Web page to Merchant's Website which effectuates a Qualifying
Transaction. The link will establish a direct hyperlink connection enabling
Visitors to move from Affiliate's Web page to Merchant's Website using a single
keystroke.
1.13 "Qualifying Transaction" means a sale or other event as described
in Addendum No. 1 to this Agreement (attached hereto) completed directly after a
hyperlink transfer from Affiliate's Web page to Merchant's Website through a
Qualifying Link that triggers an obligation on Merchant to pay such Affiliate a
Commission under this Agreement. All disputes regarding determinations of
Qualifying Transaction will be resolved mutually between GeoCities and Merchant.
1.14 "Receiving Party" shall mean a person or entity that receives
Confidential Information of another party.
1.15 "Visitor(s)" means, with respect to an Affiliate's Web page or
Merchant Website, a third party Internet user entitled to interact with such
Website (such as by viewing or downloading material).
1.16 "Website" or "Site" or "Web page" means a URL site or page on the
Web.
2. PROGRAM IMPLEMENTATION AND OPERATION.
2.1 Subject to the terms and conditions of this Agreement, GeoCities
shall have the sole right and responsibility to solicit merchants and affiliates
for participation in the Program, except as provided in Addendum No. 1.
2.2 Merchant agrees to use best efforts to assist (including but not
limited to the commitment of adequate technical personnel) Be Free and GeoCities
in the expeditious installation and testing of software and/or hardware
necessary to add Merchant to the Program and participate fully in the Program,
including, but not limited to, any materials needed to allow for accurate and
timely reporting of Qualifying Transaction data into the Be Free system and as
further specified in Exhibit A.
2.3 GeoCities shall compensate Be Free for the reasonable installation
costs of adding Merchant to the Program under this Agreement.
3. PROGRAM MANAGEMENT.
3.1 GeoCities will provide Merchant with reasonable program management
tools that will provide Merchant with comprehensive information relating to
Qualifying Links, Qualifying
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Transactions and other relevant data. Merchant shall have access to regular
reports reasonably necessary to allow Merchant generally to monitor Qualifying
Transactions and Commissions owed to Affiliates.
3.2 Merchant shall make available in a timely manner at no charge to
GeoCities all software, technical data, files, documentation, sample output or
other information and resources reasonably required by GeoCities or BeFree for
the operation of the Program. Merchant will be solely responsible for and
assumes the risk of any problems resulting from, the content, accuracy,
completeness and consistency of such data, materials and information supplied by
Merchant.
3.3 Merchant shall not operate a site, nor will GeoCities permit the
operation of any sites within its community, which: promotes sexually explicit
materials; promotes violence; promotes discrimination based on race, gender,
religion, ethnicity, nationality, disability, sexual orientation or age;
promotes illegal activities; or violates intellectual property rights. GeoCities
and Merchant represent and warrant that they shall each comply with all
applicable laws of all applicable jurisdictions (including, without limitation,
those relating to the protection of intellectual property, export restrictions,
consumer protection and taxation).
3.4 In addition to GeoCities' standard terms and conditions of the
Program, any Affiliate of Merchant shall also be required to comply with the
specific requirements set forth in Exhibit C (the "Merchant Terms and
Conditions"). Merchant represents and warrants that the enforcement of Merchant
Terms and Conditions in connection with the Program, will not violate any laws,
regulations or rights of Affiliates, GeoCities Members or other third parties.
Except as expressly set forth above, Merchant may not impose any additional
requirements or restrictions on Affiliates without the prior written consent of
GeoCities. GeoCities or Merchant shall have the right, upon ten (10) business
days notice to the other, to amend Exhibit C by removing a particular aspect of
Merchant Terms and Condition if either party determines, in its reasonable
discretion, that such aspect is unfair, offensive or otherwise objectionable.
Merchant represents and warrants that it will apply Merchant Terms and
Conditions in a fair and even manner.
3.6 Merchant shall automatically approve each and every GeoCities
Member that wishes to establish a Qualifying Link and become an Affiliate on a
preliminary basis. Merchant shall have the right to review Affiliate Sites and
reject the Affiliate, within five (5) business days of Merchant's discovery of a
Disqualification Fact. "Disqualification Fact" shall mean any demonstrable fact
relating to an Affiliate that puts such Affiliate in violation of any GeoCities
Program requirement or Merchant Terms and Conditions. Notwithstanding the
foregoing, Merchant shall provide notice to GeoCities at least two (2) business
days prior to notifying the Affiliate that it has been rejected by Merchant.
Such notice shall identify the rejected Affiliate, the URL of the Affiliate
Site, and a detailed explanation describing the Disqualification Fact and any
other bases for rejecting the Affiliate. Notwithstanding the disqualification of
an affiliate under this Section, Merchant shall, under the terms of this
Agreement, pay such affiliate any Commissions earned by the Affiliate for
Qualifying Transactions that occurred prior to the Affiliate's disqualification.
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3.7 GeoCities and BeFree shall have the sole right and responsibility
to host all Web pages relating to link generation, reporting, account management
and other functions of the Program. If Merchant wishes to add certain Program
functionality (e.g., link generations, profile management, etc.) to its Website,
it shall submit a written request to GeoCities. Merchant shall have the right to
add such functionality to its Website only with the consent of both GeoCities
and BeFree, such consent which shall not be unreasonably withheld by either
party, and only on terms and conditions to be negotiated by the parties.
4. PAYMENT TERMS.
4.1 Merchant shall pay Commissions to Affiliates on a quarterly basis
according to the terms of the BeFree payment system implemented by GeoCities, in
its sole discretion, as part of the Program (the "payment System")/ Such
payments shall be made within fifteen (15) days after the applicable calendar
quarter.
4.2 GeoCities shall be responsible for transmitting any payments
directly to Affiliates in the form of a check, or by other means that GeoCities,
in its sole discretion, deems appropriate, including but not limited to consumer
credits or merchant points.
4.3 GeoCities shall provide documentation as reasonably required under
the Payment System to substantiate payments to Affiliates.
4.4 The parties shall use best efforts to correct payment errors,
whether such errors result in overpayment or underpayment.
4.5 All late payments by Merchant under this Agreement will be assessed
a service fee of one and one-half percent (1.5%) of the amount due per month, to
the extent allowed by law. Additionally, Merchant shall pay any collection
costs, including reasonable attorneys' fees, incurred by GeoCities in the course
of collecting on such overdue or unpaid amounts.
5. SUPPORT AND MAINTENANCE.
5.1 BeFree shall provide standard support and maintenance for the
program pursuant to the BeFree Agreement. The Program Technology shall, from
time to time, be upgraded at no additional cost to Merchant; provided, however,
that Merchant uses best efforts to assist (including but not limited to the
commitment of adequate technical personnel) Be Free and GeoCities in the
expeditious installation and testing of software and/or hardware necessary to
implement such upgrades in a timely fashion.
5.2 GeoCities shall work diligently with BeFree to address technical
problems with Qualifying Links or other aspects of Program. In the event
equipment failure, human error or other technical problems prevent all
Qualifying Link from operating for more than twenty-four (24) consecutive hours,
GeoCities will compensate Merchant as follows: GeoCities will provide Merchant
with one Banner Impression for each Affiliate Pageview estimated to be lost as a
result of the total outage; the estimated number of Affiliate Pageviews lost
shall be calculated by
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multiplying the average number of Affiliate Pageviews per day for the
immediately preceding seven (7) calendar days by the number of days of complete
outage. Additionally, if such technical problems prevent all Qualifying Links
from operating for more than an aggregate of seventy-two (72) hours each month
for three (3) consecutive months, Merchant shall have the additional right,
within ten (10) days of the end of such period, to terminate this Agreement upon
thirty (30) days' notice. The compensation and termination right, if any, set
forth in this Section 5.2 shall be Merchant's sole and exclusive remedy for any
failures under this Section or errors in Qualifying Links or interruption of
services under the program due to equipment failure, human error or other
technical problems.
6. AFFILIATE INFORMATION.
6.1 Subject to the terms and conditions of this Agreement and any
applicable laws, rules or regulations, GeoCities shall provide Merchant with
Customer Data, and information relating to Affiliates as reasonably necessary to
accomplish the purposes of this Agreement ("Affiliate Information").
6.2 Merchant and GeoCities represent and warrant that they will not
resell any Affiliate Information or Customer Data or use Affiliate Information
or Customer Data or engage in any other conduct in violation of the FTC Order.
Merchant shall cooperate fully with GeoCities, and follow and comply with all
reasonable instructions and directions of GeoCities, to ensure compliance with
the FTC Order.
6.3 Merchant shall provide a readily-visible, accessible and otherwise
reasonable mechanism on its Site for Affiliates to request the removal of all
personally-identifiable information relating to such Affiliate from Merchant's
database and other records.
7. ADVERTISING, PROMOTION AND TRADEMARKS.
7.1 Merchant shall participate in the Program at the participation
level set forth in Addendum No. 1 to this Agreement (the "Participation Level").
As a condition to participating in Program at the Participation Level, Merchant
shall pay the participation fee as specified in Addendum No. 1 to this Agreement
(the "Participation Fee").
7.2 Merchant will use commercially reasonable efforts to provide art,
copy and other materials necessary for the creation of Qualifying Links and
other hyperlinks pursuant to this Agreement. Additionally, if Merchant chooses
to participate in any promotions in the Program, Merchant shall provide any
materials reasonably required by GeoCities for such participation.
7.3 Subject to all the terms and conditions of this Agreement, Merchant
hereby grants GeoCities and Affiliates a nonexclusive, non-transferable,
non-sublicensable license to use the Merchant Marks on their respective Websites
solely in connection with the activities contemplated herein. "Merchant Marks"
shall mean solely the Merchant name, logo, tag lines, and any other service
marks in the form provided by Merchant to GeoCities for use in the Program under
this Agreement; provided, however, that Merchant, from time to time, may
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change the appearance and/or style of the Merchant Marks. GeoCities hereby
acknowledges and agrees that (i) the Merchant Marks are owned solely and
exclusively by Merchant, (ii) except as set forth herein, GeoCities has no
rights, title or interest in or to the Merchant Marks and (iii) all use of the
Merchant Marks by GeoCities shall inure to the benefit of Merchant. GeoCities
agrees not to apply for registration of the Merchant Marks (or any xxxx
confusingly similar thereto) anywhere in the world.
7.4 Merchant shall have the right to promote the Program on its Website
provided however, that the form and substance of such promotion shall be subject
to GeoCities' prior review and written consent which consent shall not be
unreasonably withheld. Subject to all the terms and conditions of this Agreement
and to GeoCities' right to prior review and approval set forth in this Section,
GeoCities hereby grants Merchant a nonexclusive, non-transferable,
non-sublicensable license to use the GeoCities Marks on its Websites and in its
related off-line collateral solely in connection with the promotion of the
Program under this Section. "GeoCities Marks" shall mean solely GeoCities' name,
logo and tag lines in the form provided by GeoCities to Merchant for promoting
the Program under this Agreement; provided, however, that GeoCities, from time
to time, may change the appearance and/or style of the GeoCities Marks. Merchant
hereby acknowledges and agrees that (i) the GeoCities Marks are owned solely and
exclusively by GeoCities, (ii) except as set forth herein, Merchant has no
rights, title or interest in or to the GeoCities Marks and (iii) all use of the
GeoCities Marks by Merchant shall inure to the benefit of GeoCities. Merchant
agrees not to apply for registration of the GeoCities Marks (or any xxxx
confusingly similar thereto) anywhere in the world.
8. LICENSES.
8.1 Subject to the terms and conditions of this Agreement, GeoCities
hereby grants Merchant a nonsublicenseable, non-exclusive, non-transferable
worldwide right and license during the term of this Agreement to use the Program
Technology internally only to participate in the Program as set forth herein and
only as set forth in the documentation provided therewith. Merchant has no right
to receive, use or examine any source code or design documentation relating to
the Program Technology.
8.2 Other than the rights and licenses expressly granted to Merchant in
this Agreement, no rights or licenses, express or implied, are granted or deemed
granted hereunder or in connection herewith.
9. OWNERSHIP.
9.1 As between the parties, GeoCities, BeFree and their licensors
retain all title to, and all right to Program Technology and any intellectual
property rights thereto, all copies and derivative works thereof by whomever
made, and all related documentation and materials. GeoCities shall have all
right, title and interest in and to all Customer Data, Affiliate Information and
content created by or otherwise provided by GeoCities in conjunction with the
Program.
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9.2 Merchant represents, warrants and agrees not to (i) disassemble,
decompile or otherwise reverse engineer the Program Technology or otherwise
attempt to learn the source code, structure, algorithms or ideas underlying the
Program Technology, to the maximum extent allowed under applicable law, (ii)
rent, lease or otherwise provide temporary access to Program Technology, (iii)
copy, alter or modify the Program Technology, or (iv) allow others to do any of
the foregoing.
10. TERMS AND TERMINATION.
10.1 The Term of this Agreement and the rights granted herein is set
forth in Addendum No. 1 to this Agreement (attached hereto).
10.2. The Agreement may terminate immediately upon the following
events:
(i) if any party ceases to do business, or otherwise
terminates its business operation.; or
(ii) if any party materially breaches any material provisions
of this Agreement and fails to cure such breach within thirty (30) days
of written notice describing the breach; or
(iii) if any party becomes insolvent or seeks protection under
any bankruptcy, receivership, trust deed, creditors arrangement,
composition or comparable proceeding.
10.3 Either party shall have the right immediately to terminate this
Agreement in the event the other party commits fraud or violates any law,
statue, ordinance or regulation (including without limitation those governing
export control, consumer protection, unfair competition, anti-discrimination or
false advertising).
10.4 Additional termination rights of the parties, if any, are set
forth in Addendum No. 1 to this Agreement (attached hereto).
10.5 Upon any termination of this Agreement by either party, (I) all
rights and licenses granted to the other party under this Agreement shall
terminate, (ii) each party will immediately cease using and return to the other
party and/or destroy all of the other party's Confidential Information, Program
Technology, and other confidential materials in its possession, custody or
control in whichever form held (including without limitation all documents or
media containing any of the foregoing and all copies, extracts or embodiments
thereof), (iii) each party shall immediately pay al sums lawfully due the other
under this Agreement, (iv) Merchant shall not, directly or indirectly, initiate
or solicit contact with Affiliates or GeoCities Members for any purpose, and (v)
all other obligations and rights under this Agreement shall terminate except
Sections, 1, 4, 6, 9, 10, 11, 12, 13, 14, 16 (as applicable) of this Agreement
will continue in accordance with their terms.
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10.6 Each party understands that the rights of termination hereunder
are absolute. Neither party shall incur any liability whatsoever for any damage,
loss or expenses of any kind suffered or incurred by the other (or for any
compensation to the other) arising from or incident to any termination of this
Agreement by such party which complies with the terms of the Agreement whether
or not such party is aware of any such damage, loss or expenses. Termination is
not the sole remedy under this Agreement and, whether or not termination is
effected, all other remedies will remain available.
11. CONFIDENTIALITY.
11.1 Each party recognizes that the Confidential Information of the
other party (and the confidential nature thereof) are critical to the business
of the other party and that it would not enter into this Agreement without
assurance that such technology and information and the value thereof will be
protected as provided in this Section 11 and elsewhere in this Agreement.
11.2 The Receiving Party agrees (I) to hold the Disclosing Party's
Confidential Information in confidence and to take all reasonable precautions to
protect such Confidential Information (including, without limitation, all
precautions the Receiving Party employs with respect to its confidential
materials, (ii) not to divulge any such Confidential Information or any
information derived therefrom to any third person, (iii) not to make any use
whatsoever at any time of such Confidential Information except as expressly
authorized in this Agreement, and (iv) shall comply with all export laws,
restrictions, national security controls and regulations of the United States or
other applicable foreign agency or authority, and not to export or re-export, or
allow the export or re-export of any such Confidential Information or any copy
or direct product thereof in violation of any such restrictions, laws or
regulations, or to any Group D:1 or E:2 country (or any national of such
country) specified in the then current Supplement No. 1 to Part 740, or, in
violation of the embargo provisions in Part 746, of the U.S. Export
Administration Regulations (or any successor regulations or supplement), except
in compliance with and with all licenses and approvals required under applicable
export laws and regulations, including without limitation, those of the U.S.
Department of Commerce.
11.3 Any employee, contractor or other person given access to any such
Confidential Information must have a legitimate "need to know" and shall be
similarly bound in writing. Without granting any right or license, the
Disclosing Party agrees that the foregoing clauses (i), (ii) and (iii) shall not
apply with respect to information the Receiving Party can document (A) is in or
(through no improper action or inaction by the Receiving Party, agent or
employee) enters the public domain (and is readily available without substantial
effort), (B) was rightfully in its possession or known by it prior to receipt
from the Disclosing Party, (C) was rightfully disclosed to it by another person
without restriction, (D) was independently developed by it by persons without
access to such information and without use of any Confidential Information of
the Disclosing Party or (E) was required to be disclosed in accordance with
applicable law provided that reasonable efforts are undertaken by the Receiving
Party to minimize the extent of any required disclosure and to obtain an
undertaking from the recipient to maintain the confidentiality thereof. Each
party's obligations under this Section 11 (except under clause (iv)
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of Section 11.2) shall terminate, with respect to any particular information,
ten (10) years after the date of disclosure of such information.
11.4 The Receiving Party acknowledges and agrees that due to the unique
nature of the Disclosing Party's Confidential Information, there can be no
adequate remedy at law for any breach of its obligations hereunder, that any
such breach may allow the Receiving Party or third parties unfairly to compete
with the Disclosing Party resulting in irreparable harm to the Disclosing Party,
and therefore, that upon any such breach or any threat thereof, the Disclosing
Party shall be entitled to appropriate equitable relief in addition to whatever
remedies it might have at law and to be indemnified by the Receiving Party from
any loss or harm, including, without limitation, lost profits and attorney's
fees, in connection with any breach or enforcement of the Receiving Party's
obligations hereunder or the unauthorized use or release of any such
Confidential Information. The Receiving Party will notify the Disclosing Party
in writing immediately upon the occurrence of any such unauthorized release or
other breach. Any breach of this Section 11 will constitute a material breach of
this Agreement.
12. INCIDENTAL AND CONSEQUENTIAL DAMAGES. EXCEPT FOR A BREACH OF SECTION 11,
GEOCITIES WILL NOT BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR
OTHER THEORY FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING
WITHOUT LIMITATION LOST PROFITS) WITH RESPECT TO ANY SUBJECT MATTER OF THIS
AGREEMENT.
13. LIMITATION OF LIABILITY; DISCLAIMER.
13.1 GEOCITIES MAKES NO REPRESENTATIONS THAT THE OPERATIONS OF THE
SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. GEOCITIES HAS NO RESPONSIBILITY FOR
THE CONTENT, QUALITY AND ACCURACY OF THE PRODUCTS, SERVICES OR WEBSITES OF
MERCHANT, AFFILIATES OR BEFREE. UNDER NO CIRCUMSTANCES WILL GEOCITIES BE
RESPONSIBLE FOR THE TRANSACTIONS OR NEGLIGENCE OF EITHER MERCHANT OR AFFILIATES.
13.2 GEOCITIES MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO
THE SUBJECT MATTER OF THIS AGREEMENT INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
13.3 GEOCITIES WILL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF
THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY
FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, TECHNOLOGY OR RIGHTS OR
FOR ANY AMOUNTS AGGREGATING IN EXCESS OF AMOUNTS PAID TO IT HEREUNDER IN THE
TWELVE MONTH (12) PERIOD BEFORE THE CAUSE OF ACTION AROSE.
14. Indemnification. Each party will defend and hold harmless the other party
against any claim or suit against the other part and its shareholders,
directors, officers, employees,
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contractors and agents from any claims, liability, damage, cost and expense
(including attorneys' fees and costs of suite) to the extent they arise out of
disputes involving the indemnifying party's breach of its obligations herein.
Each party shall indemnify and hold harmless the other party, its shareholder,
directors, officers, employees, contractors and agents against and from damages,
costs, expenses and attorneys' fees, if any, finally awarded in such suit or the
amount of the settlement thereof. Neither party is authorized to agree to any
settlement, compromise or the like which would require that the other party make
any payment, or bear other obligations.
15. Audit. Each party shall keep and maintain detailed and accurate books and
records with regard to its performance hereunder. Each party or its independent
certified public accountant shall be entitled to review and audit such books and
records twice a year during normal business hours upon reasonable notice to the
other party and at the requesting party's expense; provided that the audited
party will bear such expense fully if the review or audit shows any
non-compliance (in excess of five (5) percent) with the terms of this Agreement.
All books and records relating to each party's obligations under this Agreement
shall be retained by the party's for five years after the termination or
expiration of this Agreement.
16. General
16.1 Assignability. Merchant shall not, directly or indirectly, assign,
transfer, divide, share or sublicense this Agreement, or any or all of its
performance, rights or obligations hereunder to any third party without
GeoCities' prior written consent, which consent shall not be unreasonably
withheld. Any attempt to do so in violation of this Section shall be null and
void. This Agreement will inure to the benefit of and be biding upon the parties
and their respective successors and permitted assigns.
16.2 Waiver. Any failure on the part of any party to enforce at any
time, or for any period of time, any of the provisions of this Agreement shall
not be deemed or construed to be a waiver of such provisions or of the right of
such party thereafter to enforce each and every such provision. No waiver will
be binding unless executed in writing by the party making the waiver.
16.3 Severability. If a court of law finds any provision of this
Agreement unenforceable, the parties agree to replace the offending provision
with an enforceable provision that most nearly achieves the intent and economic
effect of the unenforceable provision and all other terms shall remain in full
force and effect.
16.4 Force Majeure. No party shall be liable hereunder by any reason of
any failure or delay in the performance of its obligations hereunder (except
payment of money) on account of strikes, riots, insurrection, fires, floods,
storms, explosions, war, governmental action, labor conditions, earthquakes,
material shortages or any other cause which is beyond the reasonable control of
such party.
16.5 No Third Party Beneficiaries. Except as otherwise expressly
provided herein, the provisions of this Agreement are for the benefit of the
parties hereto and not for any other person or entity. This Agreement shall not
provide any non-party with any remedy, claim, liability.
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reimbursement, claim of action or other right in excess of those existing
without reference hereto.
16.6 Notice. All notices, requests, demands, applications, services of
process, and other communications which are required to be or may be given under
this Agreement will be in writing and will be deemed to have been duly given if
sent by telecopy or facsimile transmission, answer back requested, or delivered
by courier or mailed, certified first class mail, postage prepaid, return
receipt requested, to the parties to this Agreement at the following addresses:
If to Merchant: Xxxx Xxxxxxx
VP Business Development & Counsel
Xxxxxxx.xxx, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxx xxx Xxx, XX 00000
If to GeoCities: Xxxxxxx Xxxxxxx
Senior Vice President of Advertising and Strategic Development
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
(000) 000-0000 (Direct)
(000) 000-0000 (fax)
cc: Xxxx Xxxxxxxx
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
00 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
(000) 000-0000 (fax)
(000) 000-0000 (voice)
or to such other address as either party will have furnished to the other by
notice given in accordance with this Section. Such notice will be effective, (i)
if delivered in person or by courier, upon actual receipt by the intended
recipient, or (ii) if sent by telecopy or facsimile transmission, on the date of
transmission unless transmitted after normal business hours, in which case on
the following date, (iii) if mailed, upon the date of first attempted delivery.
16.7 Modification. No alteration of or modification to this Agreement
shall be effective unless made in writing and executed by the authorized
representative of both parties.
16.8 Relationship of Parties. The parties hereto are independent
contractors and nothing contained in this Agreement shall be deemed or construed
to create a partnership, joint venture, employment, franchise, or agency
relationship between the parties.
16.9 Governing Law. This Agreement will be governed by and construed
under, and the legal relations between the parties hereto will be determined in
accordance with, the laws of
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the State of California, without giving effect to such state's conflict of law
principles. The parties hereby submit to the personal jurisdiction of, and agree
that any legal proceeding with respect to or arising under this Agreement will
be brought in, the state and federal courts sitting in the State of California.
16.10 Attorneys' Fees. If any suit is brought, or an attorney retained
to collect any money due under this Agreement, or to collect a judgement for
breach of this Agreement, the prevailing party will be entitled to recover, in
addition to any other remedy, reimbursement for reasonable attorneys' fees,
courts costs, investigation costs and other related expenses incurred in
connection therewith.
16.11 Entire Agreement. This Agreement, together with all Exhibits
attached hereto, constitutes the entire agreement between the parties with
respect to the subject matter thereof, and supersedes all prior agreements,
understandings and other communications between the parties with respect to the
subject matter hereof.
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IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to execute this agreement the day and year first above written.
GEOCITIES MERCHANT: XXXXXXX.XXX, INC.
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxx Xxxxxxx
-------------------------------- -----------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxx Xxxxxxx
-------------------------------- -----------------------------
Title: Advertising Director West Title: SVP Bus. Develop. & Counsel
-------------------------------- -----------------------------
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EXHIBIT A
INSTALLATION AND OPERATIONAL REQUIREMENTS
To be established by GeoCities, according to GeoCities' reasonable discretion
and the BeFree Agreement.
00
XXXXXXX X
XXX XXXXX
XXXXXX XXXXXX OF AMERICA
FEDERAL TRADE COMMISSION
IN THE MATTER OF
GEOCITIES, A CORPORATION.
FILE NO. 9823015
AGREEMENT CONTAINING CONSENT ORDER
The Federal Trade Commission has conducted an investigation of certain acts and
practices of GeoCities, a corporation ("proposed respondent"). Proposed
respondent, having been represented by counsel, is willing to enter into an
agreement containing a consent order resolving the allegations contained in the
attached draft complain. Therefore,
IT IS HEREBY AGREED by and between GeoCities, by its duly authorized officer,
and counsel for the Federal Trade Commission that:
1. Proposed respondent GeoCities is a California corporation with its principal
office or place of business at 0000 Xxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxxx,
Xxxxxxxxxx 00000.
2. Proposed respondent admits all the jurisdictional facts set forth in the
draft complaint.
3. Proposed respondent waives:
(a) Any further procedural steps;
(b) The requirement that the Commission's decision contain a statement
of findings of fact and conclusions of law; and
(c) All rights to seek judicial review or otherwise to challenge or
contest the validity of the order entered pursuant to this agreement.
4. This agreement shall not become part of the public record of the proceeding
unless and until it is accepted by the Commission. If this agreement is accepted
by the Commission, it, together with the draft complaint, will be placed on the
public record for a period of sixty (60) days and information about it publicly
released. The Commission thereafter may either withdraw its acceptance of this
agreement and so
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notify proposed respondent, in which event it will take such action as it may
consider appropriate, or issue and serve its complaint (in such form as the
circumstances may require) and decision in disposition of the proceeding.
5. This agreement is for settlement purposes only and does not constitute an
admission by proposed respondent that the law has been violated as alleged in
the draft complaint, or that the facts as alleged in the draft complaint, other
than the jurisdictional facts, are true.
6. This agreement contemplates that, if it is accepted by the Commission, and if
such acceptance is not subsequently withdrawn by the Commission pursuant to the
provisions of Section 2.34 of the Commission's Rules, the Commission may,
without further notice to proposed respondent, (1) issue its complaint
corresponding in form and substance with the attached draft complaint and its
decision containing the following order in disposition of the proceeding, and
(2) make information about it public. When so entered, the order shall have the
same force and effect and may be altered, modified, or set aside in the same
manner and within the same time provided by statue for other orders. The order
shall become final upon service. Delivery of the complaint and the decision and
order to proposed respondent's address as stated in this agreement by any means
specified in Section 4.4 (a) of the Commission's Rules shall constitute service.
Proposed respondent waives any right it may have to any other manner of service.
The complaint may be used in construing the terms of the order. No agreement,
understanding, representation, or interpretation not contained in the order or
the agreement may be used to vary or contradict the terms of the order.
7. Proposed respondent has read the draft complaint and consent order. It
understands that it may be liable for civil penalties in the amount provided by
law and other appropriate relief for each violation of the order after it
becomes final.
ORDER
DEFINITIONS
For purposes of this order, the following definitions shall apply:
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1. "Child" or "children" shall mean a person of age twelve (12) or under.
2. "Parents" or "parental" shall mean a legal guardian, including, but not
limited to, a biological or adoptive parent.
3. "Personal identifying information" shall include, but is not limited to,
first and last name, home or other physical address (e.g., school), e-mail
address, telephone number, or any information that identifies a specific
individual, or any information which when tied to the above becomes identifiable
to a specific individual.
4. "Disclosure" or "disclosed to third party(ies)" shall mean (a) the release of
information in personally identifiable form to any other individual, firm, or
organization for any purpose or (b) making publicly available such information
by any means including, but not limited to, public posting on or through home
pages, pen pal services, e-mail services, message boards, or chat rooms.
5. "Clear(ly) and prominent(ly)" shall mean in a type size and location that are
not obscured by any distracting elements and are sufficiently noticeable for an
ordinary consumer to read and comprehend, and in a typeface that contrasts with
the background against which it appears.
6. "Archived" database shall mean respondent's off-site "back-up" computer tapes
containing member profile information and GeoCities Web site information.
7. "Electronically verifiable signature" shall mean a digital signature or other
electronic means that ensures a valid consent by requiring: (1) authentication
(guarantee that the message has come from the person who claims to have sent
it); (2) integrity (proof that the message contents have not been altered,
deliberately or accidentally, during transmission); and (3) non-repudiation
(certainty that the sender of the message cannot later deny sending it).
8. "Express parental consent" shall mean a parent's affirmative agreement that
is obtained by any of the following means: (1) a signed statement transmitted by
postal mail or facsimile: (2) authorizing a charge to a credit card via a secure
server; (3) e-mail accompanied by an electronically verifiable signature; (4) a
procedure that is specifically authorized by statue, regulation, or guideline
issued by the Commission; or (5) such other procedure that ensures verified
parental consent and ensures the identity of the parent, such as the use of a
reliable certifying authority.
9. Unless otherwise specified, "respondent" shall mean GeoCities, its successors
and assigns and its officers, agents, representatives, and employees.
10."Commerce" shall mean as defined in Section 4 of the Federal Trade Commission
Act, 15 U.S.C.Section 44.
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IT IS ORDERED that respondent, directly or through any corporation, subsidiary,
division, or other device, in connection with any online collection of personal
identifying information from consumers, in or affecting commerce, shall not make
any misrepresentation, in any manner, expressly or by implication, about its
collection or use of such information from or about consumers, including, but
not limited to, what information will be disclosed to third parties and how the
information will be used.
II.
IT IS FURTHER ORDERED that respondent, directly or through any corporation,
subsidiary, division, or other device, in connection with any online collection
of personal identifying information from consumers, in or affecting commerce,
shall not misrepresent, in any manner, expressly or by implication, the identity
of the party collecting any such information or the sponsorship of any activity
on its Web site.
III.
IT IS FURTHER ORDERED that respondent, directly or through any corporation,
subsidiary, division, or other device, in connection with the online collection
of personal identifying information from children, in or affecting commerce,
shall not collect personal identifying information from any child if respondent
has actual knowledge that such child does not have his or her parent's
permission to provide the information to respondent. Respondent shall not be
deemed to have actual knowledge if the child has falsely represented that (s)he
is not a child and respondent does not knowingly possess information that such
representation is false.
IV.
IT IS FURTHER ORDERED that respondent, directly or through any corporation,
subsidiary, division, or other device, in connection with the online collection
of personal identifying information, in or affecting commerce, shall provide
clear and prominent notice to consumers, including the parents of children, with
respect to respondent's practices with regard to its collection and use of
personal identifying information. Such notice shall include, but is not limited
to, disclosure of:
A. what information is being collected (e.g., "name," "home address,"
"e-mail address," "age," "interests");
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B. it's intended use(s);
C. the third parties to whom it will be disclosed (e.g., "advertisers
of consumer products," mailing list companies," "the general public");
D. the consumer's ability to obtain access to or directly access such
information and the means by which (s)he may do so;
E. the consumer's ability to remove directly or have the information
removed from respondent's databases and the means by which (s) he may
do so; and
F. the procedures to delete personal identifying information from
respondent's databases and any limitations related to such deletion.
Such notice shall appear on the home page of respondent's Web site(s) and at
each location on the site(s) at which such information is collected.
Provided that, respondent shall not be required to include the notice at the
locations at which information is collected if such information is limited to
tracking information and the collection of such information is described in the
notice required by this Part.
Provided further that, for purposes of this Part, compliance with all of the
following shall be deemed adequate notice: (a) placement of a clear and
prominent hyperlink or button labeled PRIVACY NOTICE on the home page(s), which
directly links to the privacy notice screen(s); (b) placement of the information
required in this Part clearly and prominently on the privacy notice screen(s),
followed on the same screen(s) with a button that must be clicked on to make it
disappear; and (c) at each location on the site at which any personal
identifying information is collected, placement of a clear and prominent
hyperlink on the initial screen on which the collection takes place, which links
directly to the privacy notice and which is accompanied by the following
statement in bold typeface:
NOTICE: We collect personal information on this site. To lean more
about how we use your information click here.
V.
IT IS FURTHER ORDERED that respondent, directly or through any corporation,
subsidiary, division, or other device, in connection with the online collection
of personal identifying information from children, in or affecting commerce,
shall maintain a procedure by which it obtains express parental consent prior to
collecting and using such information.
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Provided that, respondent may implement the following screening procedure that
shall be deemed to be in compliance with this Part. Respondent shall collect and
retain certain personal identifying information from a child, including birth
date and the child's and parent's e-mail addresses (hereafter "screening
information"), enabling respondent to identify the site visitor as a child and
to block the child's attempt to register with respondent without express
parental consent. If respondent elects to have the child register with it,
respondent shall: (1) give notice to the child to have his/her parent provided
express parental consent to register; and/or (2) sent a notice to the parent's
e-mail address for the purpose of obtaining express parental consent. The notice
to the child or parent shall provide instructions for the parent to: (1) go to a
specific URL on the Web site to receive information on respondent's practices
regarding its collection and use of personal identifying information from
children and (2) provide express parental consent for the collection and use of
such information. Respondent's collection of screening information shall be by a
manner that discourages children from providing personal identifying information
in addition to the screening information. All personal identifying information
collected from a child shall be held by respondent in a secure manner and shall
not be used in any manner other than to effectuate the notice to the child or
parent, or to block the child from further attempts to register or otherwise
provide personal identifying information to respondent without express parental
consent. The personal identifying information collected shall not be disclosed
to any third party prior to the receipt of express parental consent. If express
parental consent is not received by twenty (20) days after respondent's
collection of the information from the child, respondent shall remove all such
personal identifying information from its databases, except such screening
information necessary to block the child from further attempts to register or
otherwise provide personal identifying information to respondent without express
parent consent.
VI.
IT IS FURTHER ORDERED that respondent GeoCities, and its successors and assigns,
shall provide a reasonable means for consumers, including the parents of
children, to obtain removal of their or their children's personal identifying
information collected and retained by respondent and/or disclosed to third
parties, prior to the date of service of this order, as follows:
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A. Respondent shall provide a clear and prominent notice to each
consumer over the age of twelve (12) from whom it collected personal
identifying information and disclosed that information to CMG
Information Services, Inc., describing such consumer's options as
stated in Part VI.C and the manner in which (s)he may exercise them.
B. Respondent shall provide a clear and prominent notice to the parent
of each child from whom it collected personal identifying information
prior to May 20, 1998, describing the parent's options as stated in
Part VI.C and the manner in which (s)he may exercise them.
C. Respondent shall provide the notice within thirty (30) days after
the date of service of this order by e-mail, postal mail, or facsimile.
Notice to the parent of a child may be to the e-mail address of the
parent and, if not known by respondent, to the em-mail address of the
child. The notice shall include the following information:
1. the information that was collected (e.g., "name," "home
address," "e-mail address," "age," "interests"); its use(s)
and/or intended use(s); and third parties to whom it was or
will be disclosed (e.g., "advertisers of consumer products,"
"mailing list companies," "the general public") and with
respect to children, that the child's personal identifying
information may have been made public through various means,
such as by publicly posting on the child's personal home page
or disclosure by the child through the use of an em-mail
account;
2. the consumer's and child's parents right to obtain access
to such information and the means by which (s)he may do so;
3. the consumer's and child's parent's right to have the
information removed from respondent's or a third party's
databases and the means by which (s)he may do so;
4. a statement that children's information will not be
disclosed to third parties, including public posting, without
express parental consent to the disclosure or public posting;
5. the means by which express parental consent may be
communicated to the respondent permitting disclosure to third
parties of a child's information; and
6. a statement that the failure of a consumer over the age of
twelve (12) to request removal of the information from
respondent's databases will be deemed as approval to its
continued retention and/or disclosure to third parties by
respondent.
D. Respondent shall provide to consumers, including the parents of
children, a reasonable and secure means to request access to or
directly access their or their children's personal identifying
information. Such means may include direct access through password
protected personal profile, return e-mail bearing an electronically
verifiable signature, postal mail, or facsimile.
E. Respondent shall provide to consumers, including the parents of
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children, a reasonable means to request removal of their or their
children's personal identifying information from respondent's and/or
the applicable third party's databases or an assurance that such
information has been removed. Such means may include e-mail, postal
mail, or facsimile.
F. The failure of a consumer over the age of twelve (12) to request the
actions specified above within twenty (20) days after his/her receipt
of the notice required in Part VI.A shall be deemed to be consent to
the information's continued retention and use by respondent and any
third party.
G. Respondent shall provide to the parent of a child a reasonable means
to communicate express parental consent to the retention and/or
disclosure to third parties of his/her child's personal identifying
information. Respondent shall not use any such information or disclose
it to any third party unless and until it receives express parental
consent.
H. If, in response to the notice required in Part VI.A, respondent has
received a request by a consumer over the age of twelve (12) that
respondent should remove from its databases the consumer's personal
identifying information or has not received the express consent of a
parent of a child to the continued retention and/or disclosure to third
parties of a child's personal identifying information by respondent
within twenty (20) days after the parent's receipt of the notice
required in Part VI.B, respondent shall within ten (10) days:
1. Discontinue its retention and/or disclosure to third
parties of such information, including but not limited to (1)
removing from its databases all such information, (b) removing
all personal home pages created by the child, and (c)
terminating all e-mail accounts for the child; and
2. Contact all third parties to whom respondent has disclosed
the information, requesting that they discontinue using or
disclosing that information to other third parties, and remove
the information from their databases.
With respect to any consumer over the age of twelve (12) or
any parent of a child who has consented to respondent's
continued retention and use of personal identifying
information pursuant to this Part, such consumer's or parent's
continuing right to obtain access to his/her or a child's
personal identifying information or removal of such
information from respondent's databases shall be as specified
in the notice required by part IV of this order.
I. Within thirty (30) days after the date of service of this order,
respondent shall obtain from a responsible official of each third party
to whom it has disclosed personal identifying information and from each
GeoCities Community Leader a statement stating that (s)he has been
advised of the terms of this order and of respondent's obligations
under this Part, and that (s)he agrees, upon notification from
respondent, to discontinue using or disclosing a consumer's or child's
personal identifying information to other third parties and to remove
any such information from its databases.
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J. As may be permitted by law, respondent shall cease to do business
with any third party that fails within thirty (30) days of the date of
service of this order to provide the statement set forth in Part VI.I
or whom respondent knows or has reason to know has failed at any time
to (a) discontinue using or disclosing a child's personal identifying
information to other third parties, or (b) remove any such information
from their databases. With respect to any GeoCities Community Leader,
the respondent shall cease the Community Leader status of any personal
who fails to provide the statement set forth in Part VI.I or whom
respondent knows or has reason to know has failed at any time to (a)
discontinue using or disclosing a child's personal identifying
information t other third parties, or (b) remove any such information
from their databases.
For purposes of this Part: "third party(ies)" shall mean each GeoCities
Community Leader, CMG Information Services, Inc., Surplus Software, Inc.
(Surplus Direct/Egghead Computer), Sage Enterprises, Inc. (GeoPlanet/Planetall),
Netopia, Inc. (Netopia), and InfoBeat/Mercury Mail (InfoBeat).
VII.
IT IS FURTHER ORDERED that for the purposes of this order, respondent shall not
be required to remove personal identifying information from its archived
database if such information is retained solely for the purposes of Web site
system maintenance, computer file back-up, to block a child's attempt to
register with or otherwise provide personal identifying information to
respondent without express parental consent, or to respond to requests for such
information from law enforcement agencies or pursuant to judicial process.
Except as necessary to respond to requests from law enforcement agencies or
pursuant to judicial process, respondent shall not disclose to any third party
any information retained it its archived database. In any notice required by
this order, respondent shall include information, clearly and prominently, about
its policies for retaining information in its archived database.
VIII.
IT IS FURTHER ORDERED that for five (5) years after the date of this order,
respondent GeoCities, and its successors and assigns, shall place a clear and
prominent hyperlink within its privacy statement which states as follows in bold
typeface:
NOTICE: Click here for important information about safe surfing from
the Federal Trade Commission.
The hyperlink shall directly link to a hyperlink/URL to be
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provided to respondent by the Commission. The Commission may change the
hyperlink/URL upon thirty (30) days prior written notice to respondent.
IX.
IT IS FURTHER ORDERED that respondent GeoCities, and its successors and assigns,
shall maintain and upon request make available to the Federal Trade Commission
for inspection and copying the following:
A. For five (5) years after the last date of dissemination of a notice
required by this order, a print or electronic copying in HTML format of
all documents relating to compliance with Parts IV through VIII of this
order, including, but not limited to, a sample copy of every
information collection form, Web page, screen, or document containing
any representation regarding respondent's information collection and
use practices, the notice required by Parts IV through VI, any
communication to third parties required by Part VI, and every Web page
or screen linking to the Federal Trade Commission Web site. Each Web
page copy shall be accompanied by the URL of the Web page where the
material was posted online. Electronic copies shall include all text
and graphics files, audio scripts, and other computer files used in
presenting information on the World Wide Web; and
Provided that, after creation of any Web page or screen in compliance
with this order, respondent shall not be required to retain a print or
electronic copy of any amended Web page or screen to the extent that
the amendment does not affect respondent's compliance obligations under
this order.
B. For five (5) years after the last collection of personal identifying
information from a child, all materials evidencing the express parental
consent given to respondent.
X.
IT IS FURTHER ORDERED that respondent GeoCities, and its successors and assigns,
shall deliver a copy of this order to all current and future principals,
officers, directors, and managers, and to all current and future employees,
agents, and representatives having responsibilities with respect to the subject
matter of this order. Respondent shall deliver this order to current personnel
within thirty (30) days after the date of service of this order, and to future
personnel within thirty (30) days after the person assumes such position or
responsibilities.
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XI.
IT IS FURTHER ORDERED that respondent GeoCities, and its successors and assigns,
shall establish an "information practices training program" for any employee or
GeoCities Community Leader engaged in the collection or disclosure to third
parties of consumers' personal identifying information. The program shall
include training about respondent's privacy policies, information security
procedures, and disciplinary procedures for Violations of its privacy policies.
Respondent shall provide each such current employee and GeoCities Community
Leader with information practices training materials within thirty (30) days
after the date of service of this order, and each such future employee or
GeoCities Community Leader such materials and training within thirty (30) days
after (s) he assumes his/her position or responsibilities.
XII.
IT IS FURTHER ORDERED that respondent GeoCities, and its successors and assigns,
shall notify the Commission at least thirty (30) days prior to any change in the
corporation that may affect compliance obligations arising under this order,
including, but not limited to, a dissolution, assignment, sale, merger, or other
action that would result in the emergence of a successor corporation; the
creation or dissolution of a subsidiary, parent, or affiliate that engages in
any acts or practices subject to this order; the proposed filing of a bankruptcy
petition; or a change in the corporate name or address. Provided, however, that,
with respect to any proposed change in the corporation about which respondent
learns less than thirty (30) days prior to the date such action is to take
place, respondent shall notify the Commission as soon as is practicable after
obtaining such knowledge. All notices required by this Part shall be sent by
certified mail to the Associate Director, Division of Enforcement, Bureau of
Consumer Protection, Xxxxxxx Xxxxx Xxxxxxxxxx, Xxxxxxxxxx, X.X. 00000.
XIII.
IT IS FURTHER ORDERED that respondent GeoCities, and its successors and assigns,
shall, within sixty (60) days after service of this order, and at such other
times as the Federal Trade Commission may require, file with the Commission a
report, in writing, setting forth in detail the manner and form in which they
have complied with this order.
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XIV.
This order will terminate twenty (20) years from the date of its issuance, or
twenty (20) years from the most recent date that the United States or the
Federal Trade Commission files a complaint (with or without an accompanying
consent decree) in federal court alleging any violation of the order, whichever
comes later; provided, however, that the filing of such a complaint will not
affect the duration of:
A. Any Part in this order that terminates in less than twenty (20)
years;
B. This order's application to any respondent that is not named as a
defendant in such complaint; and
C. This order if such complaint is filed after the order has terminated
pursuant to this Part.
Provided, further, that if such complaint is dismissed or a federal court rules
that the respondent did not violate any provision of the order, and the
dismissal or ruling is either not appealed or upheld on appeal, then the order
will terminate according to this Part as though the complaint had never been
filed, except that the order will not terminate between the date such complaint
is filed and the later of the deadline for appealing such dismissal or ruling
and the date such dismissal or ruling is upheld on appeal.
In the matter of GeoCities FTC File No. 9823015
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EXHIBIT C
MERCHANT TERMS AND CONDITIONS
Each Affiliate shall provide its name, address, e-mail address to GeoCities
which will then make such information available to Merchant, subject to any
applicable laws and/or regulations. Merchant shall have the right to communicate
directly with Affiliates via e-mail in a reasonable fashion consistent with
industry-accepted practices regarding commercial e-mail frequency and content.
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ADDENDUM NO. 1
(1) DEFINITION OF "QUALIFYING TRANSACTION(S)": To be established based upon
the mutual agreement of the parties no later than March 1, 1999.
(2) DEFINITION OF "COMMISSION(S)": To be established based upon the mutual
agreement of the parties no later than March 1, 1999.
(3) DEFINITION OF "MERCHANT PARTICIPATION LEVEL": Subject to Merchant's
payment of the Merchant Participation Fee, GeoCities shall promote
Merchant in the Program as follows:
a) Merchant shall be featured at the PREMIER merchant partner level,
the highest level of promotion in the Program.
b) PREMIER merchant partner status provides that Merchant shall receive
at least the same level or promotion from GeoCities as all other PREMIER status
merchants in the Program.
c) Merchant shall receive three million (3,000,000) Banner Impressions
a month from GeoCities.
d) Subject to the terms and conditions of this Agreement and GeoCities'
reasonable policies regarding promotional materials, Merchant shall have a
one-time opportunity to deliver a live link message of up to thirty (30) words
to current GeoCities customers promoting Merchant's participation in the
Program.
e) GeoCities shall, from time to time, send e-mails to Affiliates
relating to the Program (the "Affiliate E-mails"). Subject to the terms and
conditions of this Agreement and GeoCities' reasonable policies regarding
promotional materials, Merchant shall have the right to prime placement in up to
six (6) Affiliate E-mails in which Merchant may message Affiliates regarding
specific programs of a commercial nature and, in addition, Merchant may state in
its Affiliate terms and conditions that it has the right to directly e-mail its
Affiliates with specific programs and promotions on a periodic basis.
f) GeoCities shall create an "Entertainment and Sports Ticket Booth"
(rotating mentions in designated neighborhoods) dedicated to highlighting
Merchant offers as well as showcasing the best "Fan Sites" within the GeoCities
Site.
(4) DEFINITION OF "MERCHANT PARTICIPATION FEE": Merchant shall pay the
following Merchant Participation Fee:
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a) Beginning on the Effective Date, Merchant shall pay [***] dollars
($[***]) for months one and two, and [***] per calendar month for months three
through twelve to GeoCities, which shall be billed by GeoCities and paid by
Merchant on a monthly basis.
b) Merchant shall also pay GeoCities a one time bounty acquisition fee
(the "Bounty Acquisition Fee") based on the following schedule:
# of Affiliates Bounty Fee
--------------- ----------
Affiliate Nos. 0-10,000 $[***] per Affiliate
Affiliate Nos. 10,001-50,000 $[***] per Affiliate
Affiliate Nos. 50,001 and over $[***] per Affiliate
For example, if Merchant has 75,000 total Affiliates during the term of this
Agreement, Merchant shall owe a total Bounty Acquisition Fee according to the
above schedule of [***] dollars ($[***]) calculated as follows: $[***] per
Affiliate for the first 10,000 Affiliates, $[***] per Affiliate for the next
40,000 Affiliates, and $[***] per Affiliate for the next 25,000 Affiliates.
Merchant shall make Bounty Acquisition Fee payments to GeoCities on a quarterly
basis.
c) In addition to the fees set forth in (4)(a)&(b) above, Merchant
shall also pay GeoCities an "Active Affiliate Fee" The breakdown is as follows:
# of Active Affiliate
Transfers or Transaction One Time Bounty Fee
------------------------ -------------------
0-20,000 $[***]
20,000-40,000 $[***]
Over 40,000 $[***]
For the purposes of this Agreement, "Active Affiliate" shall mean an
Affiliate responsible for at least an aggregate of [***] Affiliate
Pageviews or who is responsible for at least one Qualifying
Transaction. GeoCities shall be entitled only to one Active Affiliate
Fee per Active Affiliate during the term of this Agreement. Merchant
shall make Active Affiliate Fee payments to GeoCities on a quarterly
basis.
(5) Term of Agreement: This Agreement shall have a term of one year from
the Effective Date and Merchant will have an exclusive option (which
will terminate one month after this Agreement expires) to renew the
Agreement upon terms to be presented to Merchant no later than thirty
days prior to the expiration of year one.
(6) Additional Termination Right: Merchant shall have a one-time right, at
any time within sixty (60) days of the Effective Date, to terminate
this Agreement on sixty (60) days'
[***] Confidential treatment has been requested for redacted portion. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
16
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written notice to GeoCities if GeoCities fails to implement the Program as set
forth in this Agreement. The parties expressly understand and acknowledge that
Merchant's decision to terminate the Agreement under this additional termination
right may not be based, in whole or in part, on the fact that an insufficient
number of GeoCities Members have become Affiliates or that an insufficient
number of Qualifying Transactions have resulted from the Program.
(7) Category Exclusivity: For the term of this Agreement, GeoCities shall
not allow Excluded Companies or other merchants (except "GeoShop"
merchants who do not have in excess of $[***] total annual revenue from
the sale of sports, travel, and/or entertainment tickets) primarily in
the business of marketing, distributing or selling tickets to travel,
live entertainment or sporting events to participate in the Program by
allowing affiliates in the Program to establish Links to such
merchants' Websites for the purpose of effectuating the sale of tickets
to live entertainment or sporting events. For the purposes of this
Agreement, "Excluded Companies" shall include, but not be limited to,
Ticketmaster, Inc., Ticketmaster Online Citysearch, Inc., USA Networks,
Lycos, ETM, Advantix, Inc., TicketStop, LaserGate, Schubert,
Nederlander, Paciolan, BASS, Protix, TicketsLive, Fantastix,
CultureFinder, Capital Tickets, Dillards, TicketWeb, Xxxx Xxxxxx
Presents, Center State, TicketWeb, and SFX.
[***] Confidential treatment has been requested for redacted portion. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
17
