1
EXHIBIT 10.31
Confidential Treatment has been requested with respect to portions of the
agreement indicated with an asterisk [*]. A complete copy of this agreement,
including the redacted terms, has been separately filed with the Securities and
Exchange Commission.
EXECUTION COPY
SOFTWARE MERCHANT PROGRAM
ADVERTISING AND PROMOTION AGREEMENT
This Advertising and Promotion Agreement (this "Agreement") is entered
into as of February 5, 1999 (the "Effective Date") between Yahoo! Inc., a
California corporation with offices at 0000 Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxx, XX
00000 ("Yahoo") and Xxxxxx.xxx, Corporation, a Delaware corporation with offices
at 0000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, ("Xxxxxx.xxx").
In consideration of the mutual promises contained in this Agreement,
Yahoo and Xxxxxx.xxx hereby agree as follows:
1. DEFINITIONS.
The following terms are used in this Agreement with the respective
meanings set forth below:
"Xxxxxx.xxx Banner" shall mean an advertising promotion substantially
similar in form as that set forth on Exhibit B that: (a) promotes the on-line
sale of Software Products, (b) has dimensions no larger than 468 pixels wide by
60 pixels high, (c) does not have "looped" animation, (d) does not have any
animation longer than six seconds, (e) has a file size no greater than 12K, and
(f) will permit users to navigate directly to a Page on the Xxxxxx.xxx Site or
in the Xxxxxx.xxx Store relating to the Software Product promoted in the
Xxxxxx.xxx Banner. Yahoo may modify these specifications at its discretion,
provided such modification does not adversely impact Xxxxxx.xxx.
"Xxxxxx.xxx Button" shall mean a link substantially similar in form as
that set forth on Exhibit B that: (a) contains a Xxxxxx.xxx logo and has
dimensions no larger than 88 pixels wide by 31 pixels high and promotes Software
Products, (b) does not contain animation, (c) has a file size no greater than
1.5K, (d) and will permit users to navigate directly to a Page on the Xxxxxx.xxx
Site relating to the online sale of Software Products relevant to the content on
the Pace on which such Xxxxxx.xxx Button appears. Yahoo may modify these
specifications at its discretion, provided such modification does not adversely
impact Xxxxxx.xxx.
"Xxxxxx.xxx [*] Promotion" shall mean a promotion substantially similar
in form as that set forth on Exhibit B that: (a) has dimensions no larger than
230 pixels wide by 33 pixels high and promotes Software Products, (b) has no
animation longer than six seconds, (c) does not have "looped" animation, and (d)
has a file size no greater than 3K. In addition, the Xxxxxx.xxx [*] Promotion
shall comply with Yahoo's current [*] promotion guidelines attached as Exhibit
D, which may be modified by Yahoo at its discretion.
"Xxxxxx.xxx [*] Button" shall mean a link substantially similar in form
as that set forth on Exhibit B that: (a) contains a Xxxxxx.xxx logo and has
dimensions no larger than 81 pixels wide by 31 pixels high and promotes
Software-Products, (b) has no animation longer than four
2
(4) seconds, (c) does not have "looped" animation, (d) has a file size no
greater than 4K, and (e) and will permit users to navigate directly to a Page on
the Xxxxxx.xxx Site relating to the online sale of Software Products relevant to
the content on the Page on which such Xxxxxx.xxx Button appears. Yahoo may
modify these specifications at its discretion, provided such modification does
not adversely impact Xxxxxx.xxx.
[*]
"Xxxxxx.xxx [*]" shall mean a promotion substantially similar in form as
that set forth on Exhibit B that: (a) has dimensions mutually agreed upon by the
parties and promotes compelling content that is mutually agreed upon by
Xxxxxx.xxx and Yahoo, (b) [*] software interests, (c) offers new content
relevant to Xxxxxx.xxx Software Products no less than two (2) times per week and
(d) will permit users to navigate directly to a Page on the Xxxxxx.xxx Site
dedicated to the online purchase of the product promoted in the [*]. Yahoo may
modify these specifications at its discretion, provided such modification does
not adversely impact Xxxxxx.xxx.
"Xxxxxx.xxx [*] Banner" shall mean an advertising promotion
substantially similar in form as that set forth on Exhibit B that: (a) promotes
the on-line sale of Software Products, (b) has dimensions no larger than 468
pixels wide by 60 pixels high, (c) does not have "looped" animation, (d) does
not have any animation longer than six seconds, (e) has a file size no greater
than 12K, and (f) will permit users to navigate directly to a Page in the
Xxxxxx.xxx Store relating to the Software Product promoted in the Xxxxxx.xxx [*]
Banner. Yahoo may modify these specifications at its discretion, provided such
modification does not adversely impact Xxxxxx.xxx.
"Xxxxxx.xxx Site" shall mean the web site owned by Xxxxxx.xxx currently
located at xxxx://xxx.xxxxxx.xxx or any successor url.
"Xxxxxx.xxx Store" shall mean an online store created with [*] and
located [*].
"Xxxxxx.xxx [*]" shall mean a promotion substantially similar in form as
that set forth on Exhibit B that: (a) has dimensions no larger than 150 pixels
wide by 275 pixels high and visually promotes Software Products (through a
"product shot"), (b) contains no more than fifty (50) characters of text, (c)
does not contain animation, (d) is in JPEG format, (e) has a file size no
greater than 20K, (f) contains the Xxxxxx.xxx logo which shall be no greater
than ten percent (10%) of the module, (g) and will permit users to navigate
directly to a Page in the Xxxxxx.xxx Store relating to the Software Product
promoted in the [*]. Yahoo may modify these specifications at its discretion,
provided such modification does not adversely impact Xxxxxx.xxx.
"[*] Pages" shall mean those Pages identified as such on Exhibit A;
provided that, Yahoo shall use commercially reasonable efforts to assist
Xxxxxx.xxx in identifying those Pages that best suit its needs and modifying the
[*] Pages accordingly; provided further that, under no circumstances shall more
than thirty percent (30%) of the [*] Pages be modified.
3
"[*]" shall mean [*] as measured by Yahoo's advertiser reporting system,
the accuracy of which is periodically reviewed and certified by Ernst & Young,
LLP or a similarly reputable and independent entity.
"Launch Date" shall mean the date on which Yahoo activates the
Xxxxxx.xxx Button.
"[*]" shall mean the personalized property on the World Wide Web
commonly known as [*].
"[*] Pages" shall mean those Pages identified as such on Exhibit B.
"Page" means any World Wide Web page (or, for online media other than
Web sites, the equivalent unit of the relevant protocol).
"Page View" shall mean a user's request for a Page as measured by
Yahoo's advertiser reporting system, the accuracy of which is periodically
reviewed and certified by Ernst & Young, LLP or a similarly reputable and
independent entity.
"Run of Network" shall mean banners rotating throughout the Yahoo
Properties.
"[*] Pages" shall mean those Pages identified as such on Exhibit A.
"Software Merchant" shall mean any company or other entity engaged in
the on-line sale of Software Products.
"Software Merchant Program" shall mean Yahoo's program consisting of
certain marketing, advertising and promotional activities with Software
Merchants substantially similar to those set forth in this Agreement.
"Software Products" shall mean personal computer software products.
"Term" shall mean the period beginning on [*] and continuing for a
period of eighteen (18) months.
"Yahoo [*] Pages" shall mean those Pages identified as such on Exhibit
B.
"Yahoo Main Site" shall mean Yahoo's principal U.S. based directory to
the World Wide Web currently located at xxxx://xxx.xxxxx.xxx or any successor
url.
"Yahoo Properties" shall mean any Yahoo branded or co-branded media
properties, including, without limitation, Internet guides, that are developed
in whole or in part by Yahoo or its affiliates.
"Yahoo [*] Pages" shall mean those Pages identified as such on Exhibit
B.
"Yahoo Store" shall mean that Yahoo branded property containing various
online stores and currently located at xxxx://xxxxx.xxxxx.xxx or any successor
url.
4
2. XXXXXX.XXX BANNER.
2.1 Yahoo shall provide the Xxxxxx.xxx Banner, on a rotating basis
until its Page View obligations are met, on the [*] Pages (in
the placement as set forth in Exhibit B) and [*].
3. XXXXXX.XXX [*] BANNER.
3.1 Yahoo shall provide the Xxxxxx.xxx [*] Banner, on a rotating
basis until its Page View obligations are met, on the [*] Pages
(in the placement as set forth in Exhibit B).
4. XXXXXX.XXX BUTTON.
4.1 Yahoo shall provide the Xxxxxx.xxx Button, accompanied by one
(1) text link, on a rotating basis until its Page View
obligations are met, on the [*] Pages and [*] Pages (in the
placement as set forth in Exhibit B). Such [*] Pages shall be
those [*] set forth on Exhibit A. Yahoo shall provide up to
three (3) text links to accompany the Xxxxxx.xxx Button on
certain of the [*] Pages based on such pages' capacity as
reasonably determined by Yahoo. In no case shall any Xxxxxx.xxx
Button text link exceed sixteen (16) characters. Further, each
Xxxxxx.xxx Button text link shall promote Software Products and
permit users to navigate directly to a Page on the Xxxxxx.xxx
Site relating to the Software Products relevant to the [*] Page
or [*] Page on which such text link appears.
5. XXXXXX.XXX [*] BUTTON.
5.1 Yahoo shall provide the Xxxxxx.xxx [*] Button on a rotating
basis until its Page View obligations are met, on the [*] Pages
(in the placement as set forth in Exhibit B).
6. XXXXXX.XXX [*].
6.1 Yahoo shall provide the Xxxxxx.xxx [*] on a rotating basis until
its Page View obligations are met, on the [*] Pages (in the
placement as set forth in Exhibit B).
7. XXXXXX.XXX [*] PROMOTION.
7.1 Yahoo shall provide the Xxxxxx.xxx [*] Promotion on a rotating
basis until its Page View obligations are met, on the [*] (in
the placement as set forth in Exhibit B), currently located at
[*].
5
8. XXXXXX.XXX [*].
8.1 Yahoo shall provide the Xxxxxx.xxx [*] on certain versions of
[*] that are co-branded with various original equipment
manufacturers. The determination of which versions of [*] that
the [*] appears on shall be in Yahoo's sole discretion. For
clarity, Yahoo shall have no Page View obligations with respect
to the [*].
9. IMPLEMENTATION.
9.1 Subject to the provisions of this Agreement, Yahoo will be
solely responsible for the user interface and placement of the
[*] and Xxxxxx.xxx shall be solely responsible for and shall
provide Yahoo with all artwork and design elements of the [*].
9.2 Xxxxxx.xxx shall promptly provide Yahoo all URLS, URL formats
(as applicable, content, and other materials necessary for Yahoo
to provide the [*]. All content and material contained in the
[*] are subject to Yahoo's approval and must comply with all
applicable federal, state and local laws, rules and regulations,
including, without limitation, consumer protection laws and
rules and regulations governing product claims, truth in
labeling, and false advertising.
9.3 Each party hereby grants the other party a limited,
non-exclusive, worldwide, fully paid license to use, reproduce
and display such party's trade names, trademarks, service names,
other proprietary marks and any other intellectual property
provided hereunder, solely as is reasonably necessary for the
receiving party to perform its obligations under this Agreement.
Except for the limited license set forth in this Section 9.3,
neither party shall have any right to use any of the other
party's trade names, trademarks, service names, other
proprietary marks and any other intellectual property.
9.4 [*]
9.5 [*]
9.6 The Xxxxxx.xxx Site shall comply with the scale, speed and
performance requirements mutually agreed upon by the parties but
in no event less than that which is reasonably equivalent to the
Yahoo Main Site.
10. [*].
10.1 [*]
10.2 [*]
6
11. PAGE VIEWS.
11.1 With respect to the [*], Yahoo shall deliver [*] Page Views.
11.2 Yahoo will [*] deliver such Page Views as follows: [*] Page
Views of the Xxxxxx.xxx Button; [*] Page Views of the Xxxxxx.Xxx
[*] Promotion; [*] Page Views of the Xxxxxx.xxx [*]; [*] Page
Views of the Xxxxxx.xxx [*] Banner; [*] Page Views of the
Xxxxxx.xxx Banner on the [*] Pages; [*] Page Views of the
Xxxxxx.xxx Banner on [*]; [*] Page Views of the Xxxxxx.xxx [*]
Promotion. Notwithstanding the foregoing, Yahoo's Page View
obligations are with respect to the program as a whole as set
forth in Section 11.1 above and Yahoo shall not be in breach of
this Agreement for failure to deliver the number of Page Views
in any of the areas set forth in this Section 11.2. In the event
that Yahoo materially alters an area on which a Page View
referenced above is to be delivered, and such alteration has a
material adverse effect on the value of the applicable Page
Views to Xxxxxx.xxx, Yahoo shall use commercially reasonable
efforts to assist Xxxxxx.xxx in determining adequate alternative
areas on which such effected Page Views may be delivered and
modifying its delivery obligations under this Section 11.2
accordingly.
11.3 In the event that Yahoo fails to deliver the number of Page
Views referred to in Section 11.1 above by the expiration of the
Term, Yahoo will "make good" the shortfall by extending its
obligations under Sections 2-8 in the areas of the Yahoo Main
Site set forth therein (or similar inventory) beyond the end of
the Term until such Yahoo Page View obligation is satisfied. The
provisions set forth in this Section 11.3 set forth the entire
liability of Yahoo, and Xxxxxx.xxx's sole remedy, for Yahoo's
breach of its Page View obligations set forth in this Section
11.
11.4 Yahoo shall provide Xxxxxx.xxx access twenty-four hours a day,
seven days a week, to an electronic database that describes
Yahoo's calculation of the Page Views.
12. COMPENSATION.
12.1 Slotting Fee. In consideration of Yahoo's performance and
obligations as set forth herein, Xxxxxx.xxx will pay Yahoo a
slotting fee equal to [*]. Such fee shall be payable as follows:
(i) [*] within three (3) business days of execution of this
Agreement, with [*] of such payment designated as a set up fee
for design, consultation, development, implementation and
placement of the [*]; and (ii) [*] payments equal to [*] payable
on the first business day of each [*] provided that the first
payment (for the [*]) shall be due three (3) business days after
the Launch Date.
12.2 [*] Fee. In addition to the compensation described in Section
11.1 above, Xxxxxx.xxx shall pay Yahoo a [*] fee equal to [*].
Such [*] Fee payments shall
7
be made within ten (10) days of the end of the [*] to which they
relate (e.g., the first [*] Fee payment for: [*] Fees earned
from the [*] to [*], shall be due on or before [*]; the second
[*] Fee payment for [*] Fees earned between [*] and [*], shall
be due on or before [*], etc.).
12.3 Payment Information. All payments herein are non-refundable and
non-creditable and shall be made by Xxxxxx.xxx via transfer into
Yahoo's main account pursuant to the wire transfer instructions
set forth on Exhibit C.
12.4 Late Payments. Any portion of the above payments which has not
been paid to Yahoo within ten (10) days of the dates set forth
above shall bear interest at the lesser of (i) one percent (1%)
per month or (ii) the maximum amount allowed by law.
Notwithstanding the foregoing, any failure by Xxxxxx.xxx to make
the payments specified in Sections 12.1 and 12.2 on the dates
set forth therein shall constitute a material breach of this
Agreement.
13. TERMINATION.
13.1 Term. This Agreement shall commence upon [*] and, unless
terminated as provided herein, shall remain in effect for the
Term.
13.2 Termination by Either Party with Cause. This Agreement may be
terminated at any time by either party: (i) immediately upon
written notice if the other party: (a) files a petition in
bankruptcy; or (b) makes an assignment for the benefit of its
creditors; or (ii) thirty (30) days after written notice to the
other party of such other party's breach of any of its
obligations under this Agreement in any material respect (ten
(10) days in the case of a failure to pay), which breach is not
remedied within such notice period. In the event that Yahoo
provides a notice of termination under clause (ii) above, Yahoo
shall have the right to suspend performance under Sections 2, 3,
4, 5, 6 and 7 of this Agreement for the notice period unless and
until the breach is fully remedied by Xxxxxx.xxx prior to the
expiration of the notice period.
13.3 Termination by Yahoo. Yahoo may terminate this Agreement upon
forty-five (45) days written notice to Xxxxxx.xxx if at any time
during the Term Yahoo reasonably determines that the Xxxxxx.xxx
site is not fully operational with support for conducting
on-line sales of Software Products and such deficiency is not
cured within the forty-five (45) day notice period.
13.4 Survival. The provisions of Sections 1, 11.3, 12, 13.4 and 14-18
shall survive expiration or proper termination of this
Agreement; provided that Xxxxxx.xxx's payment obligations
pursuant to Section 12 shall not survive termination of this
Agreement by Xxxxxx.xxx under Section 13.2(ii) (a Yahoo breach).
8
14. CONFIDENTIAL INFORMATION AND PUBLICITY.
14.1 Terms and Conditions. The terms and conditions of this Agreement
shall be considered confidential and shall not be disclosed to
any third parties except to such party's accountants, attorneys,
or except as otherwise required by law. Neither party shall make
any public announcement regarding the existence of this
Agreement without the other party's prior written approval and
consent unless required by law but even then only after
reasonable notice to the other party.
14.2 Publicity. Any and all publicity relating to this Agreement and
subsequent transactions between Yahoo and Xxxxxx.xxx and the
method of its release shall be approved in advance of the
release by both Yahoo and Xxxxxx.xxx, provided that, as soon as
reasonably practicable following the Effective Date, the parties
shall work in good faith to announce the existence of this
relationship through a mutually issued press release
substantially similar to that attached as Exhibit F.
14.3 Nondisclosure Agreement. Yahoo and Xxxxxx.xxx acknowledge and
agree to the terms of the Mutual Nondisclosure Agreement
attached hereto as Exhibit E with respect to the use and
disclosure of confidential information and all discussions
pertaining to or leading to this Agreement.
14.4 User Data. All information and data provided to Yahoo by users
of the Yahoo Properties or otherwise collected by Yahoo relating
to user activity on the Yahoo Properties [*]. All information
and data provided to Xxxxxx.xxx on the Xxxxxx.xxx Site or
otherwise collected by Xxxxxx.xxx relating to user activity on
the Xxxxxx.xxx Site [*]. Each party agrees to use such
information only as authorized by the user and consistent with
its published privacy policy.
14.5 Privacy of User Information. Xxxxxx.xxx shall ensure that all
information provided by users of the Xxxxxx.xxx Site is
maintained, accessed and transmitted in a secure environment and
in compliance with security specifications employed through the
use of SSL technology. Xxxxxx.xxx shall provide a link to its
policy regarding the protection of user data on those pages of
the Xxxxxx.xxx Site where the user is requested to provide
personal or financial information.
15. INDEMNIFICATION.
15.1 Xxxxxx.xxx, at its own expense, will indemnify, defend and hold
harmless Yahoo and its employees, representatives, agents and
affiliates, against any claim, suit, action, or other proceeding
brought against Yahoo based on or arising from a claim any
Xxxxxx.xxx trademark, service xxxx or other Xxxxxx.xxx brand
feature, any material, product or service produced, distributed,
offered or provided by Xxxxxx.xxx, or any material presented on
the Xxxxxx.xxx Site, infringes in any manner any copyright,
patent, trademark, trade secret or any other intellectual
property right of any third party, is or contains any material
or information that is
9
obscene, defamatory, libelous, slanderous, or that violates any
law or regulation, or that otherwise violates any rights of any
person or entity, including, without limitation, rights of
publicity, privacy or personality, or has otherwise resulted in
any consumer fraud, product liability, tort, breach of contract,
injury, damage or harm of any kind to any third party; provided,
however, that in any such case: (x) Yahoo provides Xxxxxx.xxx
with prompt notice of any such claim; (y) Yahoo permits
Xxxxxx.xxx to assume and control the defense of such action upon
Xxxxxx.xxx's written notice to Yahoo of its intention to
indemnify; and (z) upon Xxxxxx.xxx's written request, and at no
expense to Yahoo, Yahoo will provide to Xxxxxx.xxx all available
information and assistance necessary for Xxxxxx.xxx to defend
such claim. Xxxxxx.xxx will not enter into any settlement or
compromise of any such claim, which settlement or compromise
would result in any liability to Yahoo, without Yahoo's prior
written consent, which shall not unreasonably be withheld.
Xxxxxx.xxx will pay any and all costs, damages, and expenses,
including, but not limited to, reasonable attorneys' fees and
costs awarded against or otherwise incurred by Yahoo in
connection with or arising from any such claim, suit, action or
proceeding.
15.2 Yahoo, at its own expense, will indemnify, defend and hold
harmless Xxxxxx.xxx and its employees, representatives, agents
and affiliates, against any claim, suit, action, or other
proceeding brought against Xxxxxx.xxx based on or arising from a
claim that any Yahoo trademark, service xxxx or other Yahoo
brand feature infringes in any manner any copyright, patent,
trademark, trade secret or any other intellectual property right
of any third party; provided, however, that in any such case:
(x) Xxxxxx.xxx provides Yahoo with prompt notice of any such
claim; (y) Xxxxxx.xxx permits Yahoo to assume and control the
defense of such action upon Yahoo's written notice to Xxxxxx.xxx
of its intention to indemnify; and (z) upon Yahoo's written
request, and at no expense to Xxxxxx.xxx, Xxxxxx.xxx will
provide to Yahoo all available information and assistance
necessary for Yahoo to defend such claim. Yahoo will not enter
into any settlement or compromise of any such claim, which
settlement or compromise would result in any liability to
Xxxxxx.xxx, without Xxxxxx.xxx's prior written consent, which
shall not unreasonably be withheld. Yahoo will pay any and all
costs, damages, and expenses, including, but not limited to,
reasonable attorneys' fees and costs awarded against or
otherwise incurred by Xxxxxx.xxx in connection with or arising
from any such claim, suit, action or proceeding.
16. LIMITATION OF LIABILITY.
16.1 EXCEPT AS PROVIDED IN SECTION 15, UNDER NO CIRCUMSTANCES SHALL
XXXXXX.XXX, YAHOO, OR ANY OF THEIR RESPECTIVE AFFILIATES BE
LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM THIS
AGREEMENT, EVEN IF THAT PARTY HAS BEEN
10
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, SUCH AS, BUT NOT
LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST
BUSINESS.
17. INSURANCE.
17.1 Xxxxxx.xxx agrees that it will maintain insurance with a carrier
that is reasonably acceptable by Yahoo and with coverage for
commercial general liability errors and omissions of at least
one million dollars per occurrence.
18. GENERAL PROVISIONS.
18.1 Independent Contractors. It is the intention of Yahoo and
Xxxxxx.xxx that Yahoo and Xxxxxx.xxx are, and shall be deemed to
be, independent contractors with respect to the subject matter
of this Agreement and nothing contained in this Agreement shall
be deemed or construed in any manner whatsoever as creating any
partnership, joint venture, employment, agency, fiduciary or
other relationship between Yahoo and Xxxxxx.xxx.
18.2 Entire Agreement. This Agreement, together with all Exhibits
hereto, represents the entire agreement between Yahoo and
Xxxxxx.xxx with respect to the subject matter hereof and thereof
and shall supersede all prior agreements and communications of
the parties, oral or written, including without limitation the
Letter of Intent executed on or about January 18, 1999, between
Yahoo and Xxxxxx.xxx.
18.3 Amendment and Waiver. No amendment to, or waiver of, any
provision of this Agreement shall be effective unless in writing
and signed by both parties. The waiver by any party of any
breach or default shall not constitute a waiver of any different
or subsequent breach or default.
18.4 Governing Law. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of
California without regard to the conflicts of laws principles
thereof.
18.5 Successors and Assigns. Neither party shall assign its rights or
obligations under this Agreement without the prior written
consent of the other party, which shall not unreasonably be
withheld or delayed. Notwithstanding the foregoing, either party
may assign this Agreement to an entity who acquires
substantially all of the stock or assets of a party to this
Agreement; provided that consent will be required in the event
that the non-assigning party reasonably determines that the
assignee will not have sufficient capital or assets to perform
its obligations hereunder, or that the assignee is a direct
competitor of the non-assigning party. All terms and
11
provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective permitted
transferees, successors and assigns.
18.6 Force Majeure. Neither party shall be liable for failure to
perform or delay in performing any obligation (other than the
payment of money) under this Agreement if such failure or delay
is due to fire, flood, earthquake, strike (declared or
undeclared), embargo, blockade, legal prohibition, governmental
action, riot, insurrection, damage, destruction or any other
similar cause beyond the control of such party.
18.7 Notices. All notices, requests and other communications called
for by this agreement shall be deemed to have been given
immediately if made by facsimile or Electronic mail (confirmed
by concurrent written notice sent via overnight courier for
delivery by the next business day), if to Yahoo at 0000 Xxxxxxx
Xxxxxxxxxx, Xxxxx Xxxxx, XX 00000, Fax: (000) 000-0000
Attention: Vice President (e-mail: [*]), with a copy to its
General Counsel (e-mail: [*]), and if to Xxxxxx.xxx 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.
18.8 Severability. If any provision of this Agreement is held to be
invalid, illegal or unenforceable for any reason, such
invalidity, illegality or unenforceability shall not effect any
other provisions of this Agreement, and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision
had never been contained herein.
18.9 Sole Responsibility. Xxxxxx.xxx will remain solely responsible
for the operation of the Xxxxxx.xxx Site, and Yahoo will remain
solely responsible for the operation of the Yahoo Main Site.
Each party: (a) acknowledges that the Xxxxxx.xxx Site and the
Yahoo Main Site may be subject to temporary shutdowns due to
causes beyond the operating party's reasonable control; and (b)
subject to the terms of this Agreement, retains sole right and
control over the programming, content and conduct of
transactions over its respective Internet-based service.
18.10 Counterparts. This Agreement may be executed in two
counterparts, both of which taken together shall constitute a
single instrument. Execution and delivery of this Agreement may
be evidenced by facsimile transmission.
18.11 Authority. Each of Yahoo and Xxxxxx.xxx represents and warrants
that the negotiation and entry of this Agreement will not
violate, conflict with, interfere with, result in a breach of,
or constitute a default under any other agreement to which they
are a party.
12
18.12 Attorneys Fees. The prevailing party in any action to enforce
this Agreement shall be entitled to reimbursement of its
expenses, including reasonable attorneys' fees.
[Signature Page Follows]
13
YAHOO! INC. XXXXXX.XXX, INC.
By: /s/ XXXXX XXXXXXXX By: /s/ XXXX XXXXXXXXX
------------------------------- --------------------------------
Name: Xxxxx Xxxxxxxx Name: Xxxx Xxxxxxxxx
Title: Vice President, Title: Vice President,
Business Development Business Development
Attn: VP, Business Development
0000 Xxxxxxx Xxxxxxxxxx
Xxxxx Xxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000 Tel:
-------------------------------
e-mail: [*] Fax:
-------------------------------
