Exhibit 10.2
Yahoo! Store Merchant Service Agreement
AGREEMENT
The Yahoo! Store service ("Yahoo! Store" or the "Service"), owned and operated
by Yahoo! Inc. (Yahoo!), is provided to you ("you" or "Merchant") under the
terms and conditions of this Yahoo! Store Merchant Service Agreement and any
amendments thereto and any operating rules or policies (collectively, the "YMSA"
or "Agreement"). Yahoo! reserves the right, in its sole discretion, to change,
modify, add or remove all or part of the YMSA at any time. Merchant will receive
notice of such changes and/or modifications pursuant to Section 14 regarding
notices.
1.1 By accepting the terms and conditions of the YMSA, Merchant (a) represents
and warrants that he or she is 18 years old or older; (b) agrees to provide
true, accurate, current and complete information about Merchant as prompted by
the Account Registration Form; and (c) agrees to maintain and update this
information to keep it true, accurate, current and complete. If any information
provided by Merchant is untrue, inaccurate, not current or incomplete, Yahoo!
has the right to terminate Merchant's account and refuse any and all current or
future use of the Service.
1.2 BY COMPLETING THE ACCOUNT REGISTRATION PROCESS AND CLICKING THE "I ACCEPT"
BUTTON, YOU AGREE TO BE BOUND BY THE YMSA. Nothing in this agreement obligates
Yahoo! or the Service to list, link to, accept or otherwise host any online
store anywhere on the Yahoo! site. If these terms and conditions or any future
changes are unacceptable to you, you may cancel your account pursuant to Section
6.2 regarding non-renewal of service.
2.0 DESCRIPTION OF YAHOO! STORE SERVICE. Yahoo! hosts interactive online stores
("Store") on the World Wide Web and may provide Merchants with, among other
things, (i) access to its Yahoo! Store Software ("Software") to facilitate the
creation and maintenance of Stores for the sale of goods and services; and (ii)
the listing of such Stores in the Yahoo! Store Listings located at
xxxxxx.xxxxx.xxx ("Online Store Services").
3.0 MERCHANT'S OBLIGATIONS
3.1 Merchant acknowledges and agrees that it shall be responsible for all goods
and services offered at Merchant's Store, all materials used or displayed at the
Store, and all acts or omissions that occur at the Store or in connection with
Merchant's account or password. Certain Stores may be subject to additional
requirements.
3.1.1 Merchant agrees to display in the Store Merchant's contact information,
including but not limited to Merchant's company name, address, telephone number,
fax number and
e-mail address. Merchant also agrees to update such information to keep it true,
accurate, current and complete.
3.1.2 Merchant agrees that any and all press releases and other public
announcements related to this Agreement and subsequent transactions between
Yahoo and Merchant, including the method and timing of such announcements, must
be approved in advance by Yahoo in writing. Yahoo reserves the right to withhold
approval of any public announcement in its sole discretion. Without limitation,
any breach of Merchant's obligation regarding public announcements shall be a
material breach of the YMSA.
3.1.3 Merchant represents and warrants that it has full power and authority
under all relevant laws and regulations:
- to offer and sell the goods and services offered at the Store, including but
not limited to holding all necessary licenses from all necessary jurisdictions
to engage in the advertising and sale of the goods or services offered at the
Store;
- to copy and display the materials used or displayed at the Store; and,
- to provide for credit card payment and delivery of goods or services as
specified at the Store.
3.1.4 Merchant represents and warrants that it will not engage in any
activities:
- that constitute or encourage a violation of any applicable law or regulation,
including but not limited to the sale of illegal goods or the violation of
export control or obscenity laws;
- that defame, impersonate or invade the privacy of any third party or entity;
- that infringe the rights of any third party, including but not limited to the
intellectual property, business, contractual, or fiduciary rights of others;
and,
- that are in any way connected with the transmission of "junk mail" "spam" or
the unsolicited mass distribution of e-mail, or with any unethical marketing
practices.
3.2 Yahoo! reserves the right to refuse to host or continue to host any Store
which it believes, in its sole discretion: (1) offers for sale goods or
services, or uses or displays materials, that are illegal, obscene, vulgar,
offensive, dangerous, or are otherwise inappropriate; (2) has substantially
changed its Store from the time it was accepted; (3) has received a significant
number of complaints for failing to be reasonably accessible to customers or
timely fulfill customer orders; (4) has become the subject of a government
complaint or investigation; or (5) has violated or threatens to violate the
letter or spirit of the YMSA.
4.0 PROPRIETARY RIGHTS
4.1 SOFTWARE LICENSE. Yahoo! hereby grants Merchant a non-exclusive,
non-transferable license to use the Software in object code form only on a
server controlled by Yahoo! for the sole purpose of creating and maintaining
Stores on such server. Merchant is not being granted any right to copy the
Software or to use it on computers other than a server controlled by Yahoo!.
Merchant may not use Web pages or parts of Web pages generated by means of the
Software, other than content that originates from and is proprietary to
Merchant, on any server other than the servers controlled by Yahoo! without
Yahoo!'s express written agreement. Merchant also acknowledges and agrees that
the Software is intended for access and use by means of web browsing software,
and that Yahoo! does not commit to support any particular browsing platform.
Yahoo! reserves the right at any time to revise and modify the Software, release
subsequent versions thereof and to alter features, specifications, capabilities,
functions, and other characteristics of the Software, without notice to
Merchant. If any revision or modification to the Software materially changes
Merchant's ability to conduct business, Merchant's sole remedy is to terminate
the YMSA pursuant to Section 6.2 regarding non-renewal of service.
4.2 YAHOO! INTELLECTUAL PROPERTY. Merchant acknowledges and agrees that content
available from Yahoo! or the Service, including but not limited to text,
software, music, sound, logos, trademarks, service marks, photographs, graphics,
or video, is protected by copyright, trademark, patent, or other proprietary
rights and laws, and may not be used in any manner other than as specified in
Section 4.1 above.
4.3 MERCHANT'S PROPERTY. Merchant agrees that by using the Service, Merchant
grants Yahoo!, and its successors and assigns, a non-exclusive, worldwide,
royalty-free, perpetual, non-revocable license under Merchant's copyrights and
other intellectual property rights, if any, in all material and content
displayed in Merchant's Store to use, distribute, display, reproduce, and create
derivative works from such material in any and all media and display in any
manner and on any Yahoo! property the results of search queries and comparisons
conducted on Yahoo!, including, without limitation, searches conducted on Yahoo!
Shopping and the Service. Merchant also grants Yahoo! the right to maintain such
content on Yahoo!'s servers during the term of the YMSA and to authorize the
downloading and printing of such material, or any portion thereof, by endusers
for their personal use.
4.4 UNAUTHORIZED ACCESS. Merchant shall not attempt to gain unauthorized access
to any servers controlled by Yahoo!.
5.0 FEES
5.1 HOSTING FEE. Merchant shall pay to Yahoo! a monthly hosting fee in the
amount of $49.95, with the first payment due on the Start Date (as defined in
Section 6.1) and subsequent payments due on a monthly basis from the Start Date
(e.g., if the Start Date
were September 10, then payments of the hosting fee would be due on the 10th day
of every month thereafter).
5.2 INSERTION FEE. Merchant shall pay to Yahoo! a monthly insertion fee in the
amount of $0.10 for every product available from Merchant's Store, based on the
daily average number of products available from Merchant's Store during the
applicable calendar month and prorated by the number of days in the applicable
calendar month that Merchant restricts its Store from accepting orders, with
payments due on the 6th day of the month after the applicable calendar month
(e.g., if the daily average number of products for the month of September were
100, and Merchant were to close its Store for 4 days over the Labor Day holiday,
then Merchant would pay a listing fee in the amount of $8.66 on October 6).
5.3 TRANSACTION FEE. Merchant shall pay to Yahoo! a monthly transaction fee
equal to 0.5% of Total Revenue, with payments due on the 6th day of the month
after the calendar month to which the transaction fee applies. "Total Revenue"
means the total dollar amount, excluding shipping and handling charges and any
applicable taxes, of all transactions conducted through Merchant's Store.
5.4 REVENUE SHARE FEE. Merchant shall pay to Yahoo! a monthly revenue share fee
equal to 3.5% of Network Revenue, with payments due on the 6th day of the month
after the calendar month to which the revenue share fee applies. "Network
Revenue" means that portion of Total Revenue generated from transactions
conducted through Merchant's Store that originate from Yahoo!'s network of
properties (e.g., a hypertext link within Yahoo!'s main directory that permits
users to navigate directly to Merchant's Store). Yahoo! shall identify these
transactions by, among other things, placing a 30-day cookie within the user's
Internet browser at the time that the user navigates to Merchant's Store
directly from a page within the xxxxx.xxx domain. For clarity, Yahoo! is not
obligated under the YMSA to place links within Yahoo!'s network of properties
that drive traffic to Merchant's Store.
5.5 RECONCILIATION AND AUDITING FOR TRANSACTION FEES AND REVENUE SHARE FEES.
With respect to the fees set forth in Sections 5.3 and 5.4, Merchant shall be
entitled to identify, and exclude from Total Revenue and Network Revenue, those
transactions conducted through Merchant's Store that are cancelled or for which
no products are shipped to the purchaser ("Excluded Transactions"), except that
Merchant must identify a transaction as an Excluded Transaction within 90 days
from the date on which the transaction was originally conducted. Yahoo! shall be
entitled to audit, at a mutually agreed upon time during normal business hours,
those Merchant records relating to Excluded Transactions and otherwise to
investigate Excluded Transactions, which might include contacting the purchaser
to confirm that the transaction at issue is an Excluded Transaction.
5.6 MECHANICS. All fees are cumulative and payable in U.S. dollars. Yahoo shall
calculate all fees and, in its discretion and on the applicable due date set
forth herein, either (a)
charge payments to the credit card number given to Yahoo! at the time of
registration or to any other credit card number that Merchant so designates, or
(b) invoice payments to be paid by Merchant within ten (10) days after the
invoice date. Late payments shall bear interest at the rate of one percent (1%)
per month (or the highest rate permitted by law, if less). In the event of any
failure by Merchant to make payment, Merchant shall be responsible for all
reasonable expenses (including attorneys' fees) incurred by Yahoo! in collecting
such amounts. Yahoo! may, upon 30 days prior notice to Merchant, alter its fees
under the YMSA.
6.0 TERMS
6.1 TERM. The term of the YMSA shall be 30 days commencing on the date that
Merchant opens an account for Merchant's Store (the "Start Date"). The term
shall automatically renew for successive monthly periods at renewal rates
applicable at the time, unless notice of non-renewal is provided in accordance
with Section 6.2, below; provided, however, that to qualify for each renewal
Merchant must at the time of renewal be in substantial compliance with the
material terms and conditions of the YMSA. Yahoo! shall have the right, but not
the obligation, to review any Store for compliance with the YMSA as part of the
renewal process, or at any time.
6.2 NON-RENEWAL. Either party, in its sole and absolute discretion, may give
notice of nonrenewal with or without cause and without stating any reason
therefor. Any notice of nonrenewal must be given at least five (5) days prior to
the end of the current monthly period in order for the YMSA to expire on the
last day of that monthly period; otherwise, the YMSA will expire on the last day
of the following monthly period (e.g., if the Start Date were September 10, and
Merchant were to provide Yahoo! with notice of nonrenewal on October 7, then the
YMSA would expire on November 10). All notices under this Section 6.2 must be
given in the manner described in Section 14 regarding notice.
7.0 TERMINATION
7.1 TERMINATION. Either party may terminate the YMSA on thirty (30) days notice
if the other party has materially breached or is otherwise not in compliance
with any provision of the YMSA, and such breach or noncompliance is not cured
within such thirty (30) day period. Yahoo! reserves the right to immediately
suspend any customer access to the Store until such breach or noncompliance is
cured.
7.2 TERMINATION FOR ILLEGAL OR OTHER ACTIVITY. Notwithstanding the foregoing,
Yahoo! may, but has no duty to, immediately terminate Merchant and remove it
from Yahoo! servers if Yahoo! in its sole discretion concludes that Merchant is
engaged in illegal activities or the sale of illegal or harmful goods or
services, or is engaged in activities or sales that may damage the rights of
Yahoo! or others. Any termination under this Section
7.2 shall take effect immediately and Merchant expressly agrees that it shall
not have any opportunity to cure.
7.3 WAIVER. Merchant expressly waives any statutory or other legal protection in
conflict with the provisions of this Section 7.
7.4 DELETION OF INFORMATION. Upon termination, Yahoo! reserves the right to
delete from its servers any and all information contained in Merchant's account,
including but not limited to order processing information, mailing lists, and
any Web pages generated by the Software.
7.5 SURVIVAL. The provisions of Section 4 (Proprietary Rights), Section 8.1
(Merchant Information), Section 10 (Indemnity), and Section 11 (Disclaimer of
Warranties and Liabilities) of this Agreement shall survive any termination of
the Agreement.
8.0 MERCHANT PRIVACY
8.1 MERCHANT INFORMATION. Yahoo! maintains information about Merchant and the
Store on Yahoo! servers, including but not limited to Merchant's account
registration information, Merchant's customer order information, sales
information, and clickstream data ("Merchant Information"). Merchant grants to
Yahoo! a non-exclusive, worldwide, royalty-free, perpetual license to use
Merchant Information in aggregate form (i.e., in a form that is not individually
attributable to the Merchant) for research, marketing and other promotional
purposes.
8.1.1 Merchant agrees that Yahoo! may disclose Merchant Information in the good
faith belief that such action is reasonably necessary: (a) to comply with the
law; (b) to comply with legal process; (c) to enforce the YMSA; (d) to respond
to claims that the Merchant or Store is engaged in activities that violate the
rights of third parties; or (e) to protect the rights or interests of Yahoo!,
Yahoo! Store or others; provided, however, that nothing in this section shall
impose a duty on Yahoo! to make any such disclosures.
8.1.2 Merchant agrees that Yahoo! may delete customer credit card information
from Yahoo! servers 14 days after Merchant retrieves such information, and may
delete all other Merchant Information from Yahoo! servers at the end of each
calendar year.
8.2 PASSWORD. Merchant shall receive a password from Yahoo! to provide access to
and use of the Software and Online Store Services. Merchant is entirely
responsible for any and all activities which occur under Merchant's account and
password. Merchant agrees to keep its password confidential, to allow no other
person or company to use its account, and to notify Yahoo! promptly if Merchant
has any reason to believe that the security of its account has been compromised.
8.3 TECHNICAL ACCESS. Merchant acknowledges and agrees that technical processing
of Merchant Information is and may be required: (a) for the Service to function;
(b) to conform to the technical requirements of connecting networks; (c) to
conform to the technical requirements of the Service; or (d) to conform to
other, similar technical requirements. Merchant also acknowledges and agrees
that Yahoo! may access Merchant's account and its contents as necessary to
identify or resolve technical problems or respond to complaints about the
Service.
8.4 MERCHANT PRIVACY POLICY. Merchant agrees (a) to post a privacy policy in its
Merchant Store that, at a minimum, discloses any and all uses of personal
information collected from users by Merchant; (b) to include in Merchant's
privacy policy a paragraph provided or approved by Yahoo! that describes
Yahoo!'s collection and use of Merchant's customer information, (c) to provide a
hypertext link to Merchant's privacy policy on the home page of the Merchant
Store and on all pages where Merchant collects personal information from users,
including but not limited to all check out pages; and (d) to use personal
information only as expressly permitted by Merchant's privacy policy.
9.0 MAINTENANCE AND SUPPORT
9.1 Merchant can obtain assistance with any technical difficulty that may arise
in connection with Merchant's utilization of the Software or Online Store
Services by requesting assistance by email to xxxxx-xxxxxxx@xxxxx-xxx.xxx.
Yahoo! reserves the right to establish limitations on the extent of such
support, and the hours at which it is available.
9.2 Merchant is responsible for obtaining and maintaining all telephone,
computer hardware and other equipment needed for its access to and use of the
Software and Online Store Services and Merchant shall be responsible for all
charges related thereto.
10.0 INDEMNITY
Merchant agrees to indemnify and hold harmless Yahoo!, and its parents,
subsidiaries, affiliates, officers, directors, shareholders, employees and
agents, from any claim or demand, including reasonable attorneys fees, made by
any third party due to or arising out of Merchant's conduct, Merchant's use of
the Service, the goods or services offered at Merchant's Store, any alleged
violation of the YMSA, or any alleged violation of any rights of another,
including but not limited to Merchant's use of any content, trademarks, service
marks, trade names, copyrighted or patented material, or other intellectual
property used in connection with Merchant's Store. Yahoo! reserves the right, at
its own expense, to assume the exclusive defense and control of any matter
otherwise subject to indemnification by Merchant, but doing so shall not excuse
Merchant's indemnity obligations.
11.0 DISCLAIMER OF WARRANTIES AND LIABILITIES
THE SERVICE AND SOFTWARE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS
WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT. NEITHER THIS AGREEMENT OR ANY DOCUMENTATION FURNISHED UNDER IT
IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT THE ONLINE STORE SERVICES WILL
BE UNINTERRUPTED, TIMELY OR ERROR-FREE OR THAT THE SOFTWARE WILL PROVIDE
UNINTERRUPTED, TIMELY OR ERROR FREE SERVICE. THE SECURITY MECHANISM INCORPORATED
IN THE SOFTWARE HAS INHERENT LIMITATIONS AND MERCHANT MUST DETERMINE THAT THE
SOFTWARE ADEQUATELY MEETS ITS REQUIREMENTS. MERCHANT ACKNOWLEDGES AND AGREES
THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE
OF THE SERVICE IS DONE AT ITS OWN DISCRETION AND RISK AND THAT MERCHANT WILL BE
SOLELY RESPONSIBLE FOR ANY DAMAGES TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT
RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. YAHOO!, AND ITS PARENTS,
SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND
AGENTS, SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES
WHATSOEVER, FOR ANY LOSS OF BUSINESS, PROFITS OR GOODWILL, LOSS OF USE OR DATA,
INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF ANY CHARACTER, EVEN IF YAHOO! IS AWARE OF THE RISK OF
SUCH DAMAGES, THAT RESULT IN ANY WAY FROM MERCHANT'S USE OR INABILITY TO USE THE
ONLINE STORE SERVICES OR THE SOFTWARE, OR THAT RESULT FROM ERRORS, DEFECTS,
OMISSIONS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY OTHER FAILURE OF
PERFORMANCE OF THE ONLINE STORE SERVICES OR THE SOFTWARE. YAHOO!'S LIABILITY TO
MERCHANT SHALL NOT, FOR ANY REASON, EXCEED THE AGGREGATE PAYMENTS ACTUALLY MADE
BY MERCHANT TO YAHOO! OVER THE COURSE OF THE EXISTING TERM. SOME JURISDICTIONS
DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE
ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
12.0 NO RESALE OR ASSIGNMENT OF SERVICE
Merchant agrees not to resell or assign or otherwise transfer its rights or
obligations under the YMSA without the express written authorization of Yahoo!.
13.0 FORCE MAJEURE
Neither party shall be liable to the other for any delay or failure in
performance under the YMSA resulting directly or indirectly from acts of nature
or causes beyond its reasonable control.
14.0 NOTICES
Any notices or communications under the YMSA shall be by electronic mail or in
writing and shall be deemed delivered upon receipt to the party to whom such
communication is directed, at the addresses specified below. If to Yahoo!, such
notices shall be addressed to xxxxx-xxxxx@xxxxx-xxx.xxx or 000 Xxxxx Xxxxxx,
Xxxxxxxxx, XX 00000, XXX. If to Merchant, such notices shall be addressed to the
electronic or mailing address specified when Merchant opens an account with
Yahoo! Store, or such other address as either party may give the other by notice
as provided above.
15.0 ENTIRE AGREEMENT
The YMSA constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all previous proposals, both oral and
written, negotiations, representations, writings and all other communications
between the parties.
16.0 GENERAL
The YMSA and the relationship between Merchant and Yahoo! shall be governed by
the laws of the state of California without regard to its conflict of law
provisions. Merchant and Yahoo! agree to submit to the personal and exclusive
jurisdiction of the Superior Court of the State of California for the County of
Santa Xxxxx or the United States District Court for the Northern District of
California. Yahoo!'s failure to exercise or enforce any right or provision of
the YMSA shall not constitute a waiver of such right or provision. If any
provision of the YMSA is found by a court of competent jurisdiction to be
invalid, the parties nevertheless agree that the court should endeavor to give
effect to the parties intentions as reflected in the provision, and agree that
the other provisions of the YMSA remain in full force and effect. Merchant
agrees that regardless of any statute or law to the contrary, any claim or cause
of action arising out of or related to use of the Service or the YMSA must be
filed within one (1) year after such claim or cause of action arose, or be
forever barred. The section titles in the YMSA are for convenience only and have
no legal or contractual effect.
17.0 ADDITIONAL CONSIDERATIONS FOR YAHOO! SHOPPING.
17.1 ELIGIBILITY FOR YAHOO! SHOPPING. In order to become eligible for
discretionary placement with Yahoo! Shopping, Merchant agrees to the following:
(a) Merchant will comply with the Yahoo! Shopping Merchant Guidelines, currently
located at xxxx://xxxxx.xxxxx.xxx/xxxxxxxxxx.xxxx; and (b) Merchant grants to
Yahoo! a non-exclusive, worldwide, royalty-free license to modify certain pages
within the Merchant's Store solely for purpose of implementing features and
functionality of Yahoo! Shopping that, in Yahoo!'s reasonable discretion, either
facilitate transactions or promote Yahoo! Shopping or Yahoo! generally (e.g.,
integration of Yahoo! Wallet into the check-out process within Merchant's
Store).
17.2 DISCRETIONARY PLACEMENT WITHIN YAHOO! SHOPPING. Subject to Section 17.1
above, Yahoo! will consider Merchant for discretionary placement within Yahoo!
Shopping, which might include a Merchant listing in the following areas: (a)
xxxx://xxxxxxxx.xxxxx.xxx; or (b) contextually relevant search results pages.
Yahoo! will be entitled to revoke any discretionary placement at any time in its
sole discretion.
