EXHIBIT 10.1
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN PORTIONS OF THIS DOCUMENT.
CONFIDENTIAL PORTIONS HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
YAHOO! INC.
LICENSE AGREEMENT
This License Agreement (the "Agreement") is made as of this 17th day of
February, 1999 (the "Effective Date") between Yahoo! Inc., a California
corporation, with offices at 0000 Xxxxxxx Xxxxxxxxxx, Xxxxx 000, Xxxxx Xxxxx, XX
00000, ("Yahoo") and The Xxxxxx.xxx, Inc., a Delaware corporation, with offices
at Xxx Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 ("Licensor").
In consideration of the mutual promises contained herein, the parties agree as
follows:
Section 1: Definitions.
"Affiliates" shall mean any company or any other entity world-wide, including,
without limitation, corporations, partnerships, joint ventures, and Limited
Liability Companies in which Yahoo owns at least a twenty percent (20%)
ownership, equity, or financial interest.
"Click-through" shall mean a user selecting or clicking on the Licensor Content
from the Content Pages that will directly link the user to the full text of the
news story on the Licensor Site.
"Content Pages" shall mean the pages that result from current stock quote pages
of Yahoo Finance for a company after the user submits a request for "News"
relating to that company.
"Intellectual Property Rights" shall mean all rights in and to trade secrets,
patents, copyrights, trademarks, know-how, as well as moral rights and similar
rights of any type under the laws of any governmental authority, domestic or
foreign.
"Licensor Brand Features" shall mean all trademarks, service marks, logos and
other distinctive brand features of Licensor that are used in or relate to the
Licensor Content, including without limitation, the trademarks, service marks
and logos described in Exhibit A.
"Licensor Content" shall mean, collectively, those headlines of newswires
collected, produced and owned by Licensor which link to certain newswires made
available on Licensor's Site and as described on Exhibit B.
"Licensor Site" shall mean Licensor's World Wide Web site currently located at
xxxx://xxx.xxxxxxxxx.xxx.
"Yahoo Brand Features" shall mean all trademarks, service marks, logos and other
distinctive brand features of Yahoo that are used in or relate to a Yahoo
Property, including, without limitation, the trademarks, service marks and logos
described in Exhibit A.
"Yahoo Finance" shall mean Yahoo's U.S. based property with information relating
to finance and investments and currently located at xxxx://xxxxx.xxxxx.xxx.
"Yahoo Properties" shall mean any Yahoo branded or co-branded media properties,
including, without limitation, Internet guides, developed in whole or in part by
Yahoo or its Affiliates and distributed or made available by Yahoo or its
Affiliates.
Section 2: Licenses; Responsibilities of the Parties.
2.1 Grant of Licenses. Subject to the terms and conditions of this
Agreement, Licensor hereby grants to Yahoo, under Licensor's
Intellectual Property Rights:
(a) A non-exclusive, worldwide license to use, modify, reproduce,
distribute, display and transmit the Licensor Content in
electronic form
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on the Content Pages and in connection with other Yahoo
Properties and to permit users of the Yahoo Properties to
download and print the Licensor Content. Yahoo's license to
modify the Licensor Content shall be limited to modifying the
Licensor Content to fit the format and overall "look and feel"
of the Content Pages or Yahoo Properties.
(b) A non-exclusive, worldwide, license to use, reproduce and
display the Licensor's Brand Features: (i) in connection with
the presentation of the Licensor Content in the Yahoo
Properties; and (ii) in connection with the marketing and
promotion of the Licensor Content in connection with the
Yahoo Properties.
(c) Subject to the restrictions and obligations herein, Yahoo
shall be entitled to sublicense the rights set forth in this
Section 2.1 (i) to its Affiliates only for inclusion in Yahoo
Properties, (ii) in connection with any mirror site or
derivative site of a Yahoo Property, (iii) in connection with
any distribution arrangement concerning a Yahoo Property, and
(iv) in connection with other devices where a user can access
the internet.
(d) Yahoo agrees that any and all use of Licensor's Brand Features
by Yahoo, its Affiliates, or any other sublicensees will at
all times comply with Licensor's reasonable trademark
guidelines as attached hereto as Exhibit "D" and any updates
to such guidelines as provided by Licensor to Yahoo from time
to time.
2.2 Yahoo's Responsibilities.
(a) Yahoo will be responsible for the design, layout, posting, and
maintenance of the Content Pages. Yahoo shall give its users
the option to add the Licensor Content into the appropriate
areas of their personalized and customizable web pages in
accordance with Yahoo's service currently named "Yahoo
Finance." Licensor shall offer such users the opportunity to
register for subscription to Licensor's service on a limited
free-trial basis through a registration page on the Licensor's
Site ("Registration Page") upon such users' Click-throughs
from
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headlines of stories requiring registration on the Licensor
Site ("Licensor Premium Content"). The content, context,
images, format, layout and "look and feel" of the Registration
Page shall be controlled and designed by Licensor, subject to
Yahoo's reasonable approval, not to be unreasonably withheld
or delayed. Click-throughs from head lines of stories which
are not Licensor Premium Content shall go directly on a page
on the Licensor Site containing the full text of that story.
Yahoo shall have the sole right to sell and retain all
revenues with respect to advertising and promotions that
appear on the Yahoo Properties.
(b) Yahoo will not alter or impair any acknowledgment of copyright
or other Intellectual Property Rights of Licensor that may
appear in the Licensor Content and the Licensor Brand
Features, including all copyright, trademark and similar
notices that Licensor may reasonably request.
2.3 Licensor's Responsibilities.
(a) Licensor will provide on-going assistance to Yahoo with regard
to technical, administrative and service-oriented issues
relating to the utilization, transmission and maintenance of
the Licensor Content, as Yahoo may reasonably request.
(b) Licensor also shall provide Yahoo with reasonable prior notice
of any significant enhancements that generally affect the
appearance, updating, delivery or other elements of the
Licensor Content. Licensor will use its reasonable best
efforts to ensure that the Licensor Content is accurate,
comprehensive and updated regularly.
(c) *****
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(d) *****
Section 3: Compensation.
3.1 Slotting Fee. In consideration of Yahoo's performance and obligations
as set forth herein, Licensor will pay Yahoo an annual, non-refundable
slotting fee during the Term (as such term is defined in Section 6
herein) equal to *****. Such fee shall be paid to Yahoo as set forth
below with the first payment designated as a set up fee for the
design, consultation, development, implementation and placement of the
Licensor Content.
Payment Date
--------------------------------------------------------------
$***** upon execution of this Agreement
$*****/month commencing February 15, 1999 and continuing
monthly thereafter until December 15, 1999
3.2 *****
3.3 Payment Information. All slotting fee payments are due on the first day
of each calendar month. ***** Yahoo shall provide Licensor with a
Click- Through report specifying the total number of Click-throughs
recorded by Yahoo for the preceding month within 15 days of the end of
each month during the Term. ***** All payments herein are
non-refundable and non-creditable and shall be made by Licensor via
wire transfer into Yahoo's main account pursuant to the wire transfer
instructions set forth on Exhibit C.
3.4 Late Payments. Any portion of the above payments which has not been
paid to Yahoo on the dates set forth above shall bear interest at the
lesser of (i) one percent (1%) per month commencing five (5) days after
Licensor's receipt of notice of delinquency or (ii) the maximum amount
allowed by law. Notwith-
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standing the foregoing, any failure by Licensor to make the payments
specified in Sections 3.1 and 3.2 on the dates set forth therein shall
constitute a material breach of this Agreement.
3.5 Audit. Licensor is entitled to more than once every twelve (12) months
during the term of this Agreement on notice to the Yahoo, to audit or
have its external auditors audit the Yahoo's books and records, which
relate directly to the number of Click-throughs reported by Yahoo and
calculation of payments due to Yahoo hereunder. Any such audit will be
conducted during Yahoo's normal business hours and at Yahoo's location
where the relevant records are kept in the normal course of business
and shall be conducted to minimize any disruption to Yahoo's business
activities. In the event the audit reveals that the number of actual
Click-throughs exceeds the number reported by Yahoo, Yahoo will
immediately pay refund the difference (required payment minus actual
payment) to Licensor together with any interest accumulated at the
lesser of (i) one percent (1%) per month commencing upon the date of
Yahoo's receipt of such actual payment from Licensor or (ii) the
maximum amount allowed by law.
Section 4: Indemnification.
Licensor, at its own expense, will indemnify, defend and hold harmless Yahoo,
its Affiliates and their employees, representatives, agents and affiliates,
against any claim, suit, action or other proceeding brought against Yahoo or an
Affiliate based on or arising from a claim that the Licensor Content or any
Licensor Brand Feature infringes in any manner any Intellectual Property Right
of any third party or contains any material or information that is obscene,
defamatory, libelous, slanderous, that violates any person's right of publicity,
privacy or personality, or has otherwise resulted in any tort, injury, damage or
harm to any person; provided however, that in any such case: (x) Yahoo provides
Licensor with prompt notice of any such claim; (y) Yahoo permits Licensor to
assume and control the defense of such action, with counsel chosen by Licensor
(who shall be reasonably acceptable to Yahoo); and (z) Licensor does not enter
into any settlement or compromise of any such claim without Yahoo's prior
written consent, which consent shall not be unreasonably withheld. Licensor will
pay any and all costs, damages, and expenses, including, but not limited to,
reasonable attorneys' fees and costs awarded against or
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otherwise incurred by Yahoo or an Affiliate in connection with or arising from
any such claim, suit, action or proceeding. It is understood and agreed that
Yahoo does not intend and will not be required to edit or review for accuracy or
appropriateness any Licensor Content.
Section 5: Limitation of Liability.
EXCEPT AS PROVIDED IN SECTION 5, UNDER NO CIRCUMSTANCES SHALL LICENSOR,
LICENSOR'S LICENSORS, YAHOO, OR ANY AFFILIATE BE LIABLE TO ANOTHER PARTY FOR
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM
THIS AGREEMENT, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR
LOST BUSINESS.
Section 6: Term and Termination.
6.1 Initial Term and Renewals. This Agreement will become effective as of
the Effective Date and shall, unless sooner terminated as provided
below or as otherwise agreed, remain effective for an initial term of
twelve (12) months following the first date of public availability of
the Licensor Content on the Content Pages within a Yahoo Property (the
"Initial Term"). After the Initial Term, this Agreement will be
automatically renewed for successive additional one year periods
("Extension Terms"), unless otherwise terminated by either party by
giving notice to the other party not less than sixty (60) days prior to
the end of a Term. As used herein, the "Term" means the Initial Term
and any Extension Term(s).
6.2 Termination for Cause. Notwithstanding the foregoing, this Agreement
may be terminated by either party immediately upon notice if the other
party: (w) becomes insolvent; (x) files a petition in bankruptcy; (y)
makes an assignment for the benefit of its creditors; or (z) breach
any of its obligations under this Agreement in any material respect,
which breach is not remedied within thirty (30) days (ten (10) days in
the case of a failure to pay) following written notice to such party.
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6.3 Effect of Termination. Any termination pursuant to this Section 6 shall
be without any liability or obligation of the terminating party, other
than with respect to any breach of this Agreement prior to termination.
The provisions of Sections 3, 4, 5, 7, 9, and this Section 6.3 shall
survive any termination or expiration of this Agreement.
Section 7: Ownership.
7.1 By Licensor. Yahoo acknowledges and agrees that: (i) as between
Licensor on the one hand, and Yahoo and its Affiliates on the other,
Licensor owns all right, title and interest in the Licensor Content and
the Licensor Brand Features; (ii) nothing in this Agreement shall
confer in Yahoo or an Affiliate any right of ownership in the Licensor
Content or the Licensor Brand Features. No licenses are granted by
either party except for those expressly set forth in this Agreement.
7.2 By Yahoo. Licensor acknowledges and agrees that: (i) as between
Licensor on the one hand, and Yahoo and its Affiliates on the other,
Yahoo or the Affiliates own all right, title and interest in any Yahoo
Property and the Yahoo Brand Features; (ii) nothing in this Agreement
shall confer in Licensor any license or right of ownership in the Yahoo
Brand Features; and (iii) Licensor shall not now or in the future
contest the validity of the Yahoo Brand Features. No licenses are
hereby granted by Yahoo.
Section 8: Public Announcements and Co-branding Promotions.
The parties will cooperate to create any and all appropriate public
announcements relating to the relationship set forth in this Agreement. Neither
party shall make any public announcement regarding the existence or content of
this Agreement without the other party's prior written approval and consent.
Yahoo shall notify its users of the availability of Licensor Content via the
Content Pages and Yahoo Properties through text links, advertising banners and
other promotional activities ("Promotions"). The parties may agree to co-brand
such Promotions (e.g. "customize Yahoo Financial news to include headlines from
XxxXxxxxx.xxx"), in a manner and for a price that is mutually agreeable to the
parties.
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Section 9: Notice; Miscellaneous Provisions..
9.1 Notices. All notices, requests and other communications called for by
this agreement shall be deemed to have been given immediately if made
by telecopy or electronic mail (confirmed by concurrent written notice
sent first class U.S. mail, postage prepaid), if to Yahoo at 0000
Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxx, XX 00000, Fax: (000) 000-0000
Attention: Vice President (e-mail: *****, with a copy to its General
Counsel *****, and if to Licensor at the physical and electronic mail
addresses set forth on the signature page of this Agreement, or to such
other addresses as either party shall specify to the other. Notice by
any other means shall be deemed made when actually received by the
party to which notice is provided.
Miscellaneous Provisions. This Agreement will bind and inure to the benefit of
each party's permitted successors and assigns. Neither party may assign this
Agreement, in whole or in part, without the other party's written consent;
provided, however, that: (i) either party may assign this Agreement without such
consent in connection with any merger, consolidation, any sale or assignment of
all or substantially all of such party's assets or any other transaction in
which more than fifty percent (50%) of such party's voting securities or
membership interests are transferred. Any attempt to assign this Agreement other
than in accordance with this provision shall be null and void. This Agreement
will be governed by and construed in accordance with the laws of the State of
California, without reference to conflicts of laws rules, and without regard to
its location of execution or performance. If any provision of this Agreement is
found invalid or unenforceable, that provision will be enforced to the maximum
extent permissible, and the other provisions of this Agreement will remain in
force. Neither this Agreement, nor any terms and conditions contained herein may
be construed as creating or constituting a partnership, joint venture or agency
relationship or any other form of legal association between the parties. No
failure of either party to exercise or enforce any of its rights under this
Agreement will act as a waiver of such rights. This Agreement and its Exhibits
are the complete and exclusive agreement between the parties with respect to the
subject matter hereof, superseding and replacing any and all prior agreements,
communications, and understandings, both written and oral, regarding such
subject matter. This Agreement may only be modified, or any rights under it
waived, by a written document executed by both parties. This Agreement may be
executed in any number of
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counterparts, all of which taken together shall constitute a single instrument.
Execution and delivery of this Agreement may be evidenced by facsimile
transmission.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the date first written
above.
YAHOO! INC. XXXXXXXXX.XXX, INC.
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxxxx Xxxxx
------------------------------ ---------------------------------
Title: VP Business Development Title: VP General Manager - Consumer
-------------------------- ------------------------------
Address: 0000 Xxxxxxx Xxxxxxx Address: 0 Xxxxxx Xxxxxx, 00xx Xxxxx
------------------------- ----------------------------
Xxxxx Xxxxx, XX 00000 XX, XX 00000
------------------------- ----------------------------
Telecopy: ***** Telecopy:
------------------------ ---------------------------
E-mail: ***** E-mail: *****
-------------------------- -----------------------------
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EXHIBIT A
LICENSOR BRAND FEATURES
XxxXxxxxx.xxx
XxxXxxxxx.xxx related logos
YAHOO BRAND FEATURES
Yahoo!
Yahoo related logos
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EXHIBIT B
LICENSOR CONTENT
Headlines (and related ticker symbols and URIs of full-text stories on
Licensor's own site) of stories relating to business, financial, industry and
technology news. Licensor Content shall include all XxxXxxxxx.xxx stories
EXCEPT those stories which are hosted on Yahoo!. The excluded content shall be:
Wrong!
View from XxxXxxxxx.xxx
Silicon Valley
Online Brokerage
FundWatch
The above list may be modified from time to time by the parties.
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EXHIBIT C
Wire Transfer Instructions
Yahoo's Bank Information:
Institution Name: *****
Institution Address: *****
ABA: *****
Beneficiary Name: *****
Beneficiary Account Number: *****
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EXHIBIT D
XXXXXXXXX.XXX INC. - SERVICE AND TRADEMARK GUIDELINES
When used in these guidelines, for ease of reference the term trademark refers
to both trademarks and service marks.
1. XxxXxxxxx.xxx trademarks must be used as adjectives, not nouns
Trademarks are adjectives, and should always be used with the generic term that
they modify. For example:
CORRECT: XxxXxxxxx.xxx services are excellent.
INCORRECT: XxxXxxxxx.xxx is the ideal service for your needs.
The above is the most important rule of trademark usage. The word "service", or
similar generic language (i.e. financial information service), should
immediately follow all XxxXxxxxx.xxx trademarks in each piece of advertising,
promotion or other written material. On occasion, the generic term may be
omitted where the immediate context makes it clear that a generic term is
intended, such as in repetitive uses of the trademark within a single paragraph
or section, but these exceptions should be used with care. The generic term
should always be used at the beginning of a piece and at significant points
subsequently. In addition, Intuit trademarks must not be used as possessives.
(This follows from the principle that trademarks are adjectives, not nouns). For
example:
CORRECT: The quality of XxxXxxxxx.xxx is outstanding.
INCORRECT: XxxXxxxxx.xxx quality is outstanding.
2. Retain the distinctive appearance of XxxXxxxxx.xxx trademarks without using
specialized type or logo forms.
XxxXxxxxx.xxx trademarks should always be presented in a distinctive, but non-
stylized fashion. Special typefaces/fonts should not be used, and Company logos
and typefaces cannot be used. This means that the marks must appear in a regular
typeface while retaining their distinctive capitalization and/or spacing. Marks
may also appear in all upper-case letters while retaining correct spacing. For
example:
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CORRECT: XxxXxxxxx.xxx service
INCORRECT: XxxXxxxxx.xxx service
3. Use appropriate status and ownership legends with XxxXxxxxx.xxx trademarks.
All XxxXxxxxx.xxx trademarks that are not registered should appear with the
super script TM. The appropriate legend must be used each time XxxXxxxxx.xxx
trademark is printed. (Please contact XxxXxxxxx.xxx if you need information on
the registration status of a particular trademark.) In addition, all written
documents, displays or advertisements which include XxxXxxxxx.xxx trademark must
contain the appropriate ownership legend, ideally at the beginning of the piece.
For example:
XxxXxxxxx.xxx and XxxXxxxxx.xxx logo are service marks of
XxxXxxxxx.xxx, Inc.
4. Do not use XxxXxxxxx.xxx trademarks in company names or on direct business
source identifiers.
XxxXxxxxx.xxx trademarks may not be used in company names or on direct business
source identifiers like stationery, business cards, and company signs unless
specifically authorized. These items identify the name of a business and, thus,
the source of its products or services. In order to avoid any possible confusion
with regard to the source of XxxXxxxxx.xxx services, no use of XxxXxxxxx.xxx
trademarks on these identifiers is allowed unless prior written approval is
obtained. (Of course, the use of XxxXxxxxx.xxx trademarks in detailed brochures,
certain advertisements, presentations and the like, is permitted as long as all
of the other guidelines contained herein are followed.)
5. Only XxxXxxxxx.xxx may use its trade name, trademark and logo trademark. No
one except XxxXxxxxx.xxx may use its name, trademark or logo trademark in
connection with the sale, provision or advertisement of any product or service.
The only use of its name that is permitted (in connection with selling products
or services) is to display the ownership legend for XxxXxxxxx.xxx trademarks, as
shown above.
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