Exhibit 10.10
YAHOO! INC.
CONTENT LICENSE AGREEMENT
THIS CONTENT LICENSE AGREEMENT (the "Agreement") is made as of this __th
day of February, 1998 (the "Effective Date") between YAHOO!, INC, ,a California
corporation, with offices at 0000 Xxxxxxx Xxxxxxxxxx, Xxxxx 000, Xxxxx Xxxxx, XX
00000, ("YAHOO") and Internet Fashion Mall LLC, ("Licensor"), a New York
corporation, with offices at 000 Xxxxxxx Xxxxxx, 0xx xxxxx, Xxx Xxxx, XX 00000.
In consideration of the mutual promises contained herein, the parties agree as
follows:
SECTION 1: DEFINITIONS.
Unless otherwise specified, capitalized terms used in this Agreement shall
have the meanings attributed to them in Exhibit A hereto.
SECTION 2: GRANT OF LICENSES.
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 in connection
with Yahoo Properties via the Internet, and to permit users of the Yahoo
Properties to download and print the Licensor Content for personal use.
Yahoo's license to modify the Licensor content shall be limited to
modifying the Licensor Content to fit the format and look and feel of the
Yahoo Property.
(b) A non-exclusive, worldwide, fully paid license to use, reproduce and
display the Licensor's Brand Features: (i) in connection with the
presentation of the Licensor Content on the Content Pages in the Yahoo
Properties; and (ii) in connection with the marketing and promotion of the
Yahoo Properties.
(c) Yahoo shall be entitled to sublicense the rights set forth in this Section
2.1 (1) to its Affiliates only for inclusion in Yahoo Properties, and (2)
in connection with any mirror site, derivative site, or distribution
arrangement concerning a Yahoo Property.
SECTION 3: DELIVERY OF LICENSOR CONTENT: ADVERTISING REVENUE.
3.1 Yahoo's Responsibilities. [In addition to any responsibilities that may be
set forth in Exhibit C,] Yahoo will be responsible for the design, layout,
posting, and maintenance of the Content Pages. In no event is Yahoo under any
obligation, express or implied, to
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post or otherwise include any of the Licensor Content in any Yahoo Property,
including without limitation, in any Content Pages.
3.2 Licensor Assistance [In addition to any responsibilities that may be set
forth in Exhibit C,] Licensor will provide on-going assistance to Yahoo with
regard to technical, administrative and service-oriented issues relating to the
utilization, transmission arid maintenance of the Licensor Content, as Yahoo may
reasonably request. Licensor will use its reasonable best efforts to ensure that
the Licensor Content is accurate, comprehensive and updated regularly as set
forth in Exhibit C.
3.3 Advertising Rights. Yahoo shall have the solo right to sell and retain all
Advertising Rights with respect to Content Pages.
3.4 Notices. 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.
3.5 Links. The parties will maintain the hypertext links specified in Exhibit D.
SECTION 4: DELIVERY OF LICENSOR CONTENT
During the term of this Agreement, Licensor shall deliver updates of the
Licensor Content to Yahoo in accordance with the Delivery Specifications set
forth in Exhibit C. 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, and shall make
such Enhancements available to Yahoo upon commercially reasonable terms.
SECTION 5: 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
as delivered to Yahoo 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) Licenser 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
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costs awarded against or 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.
Yahoo, at its own expense, will indemnify, defend and hold harmless
Licensor, its Affiliates and their employees, representatives, agents and
affiliates, against any claim, suit, action, or other proceeding brought by a
third party against Licensor or an Affiliate based on or arising from
modifications to the Licensor Content made by Yahoo that are not approved in
advance by Licensor, provided, however, that in any such case; (x) Licensor
provides Yahoo with prompt notice of any such claim; (y) Licensor permits Yahoo
to assume and control the defense of such action, with counsel chosen by Yahoo
(who shall be reasonably acceptable to Licensor); and (z) Yahoo does not enter
into any settlement or compromise of any such claim without Licensor's prior
written consent, which consent shall not be unreasonably 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
Licensoror an Affiliate in connection with or arising from any such claim, suit,
action or proceeding.
SECTION 6: LIMITATION OF LIABILITY.
EXCEPT AS PROVIDED IN SECTION 5, UNDER NO CIRCUMSTANCES SHALL LICENSOR,
YAHOO, OR ANY AFFILIATE BE LIABLE TO ANOTHER PARTY FOR THE DIRECT, 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 7: TERMS AND TERMINATION
7.1 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 Licenser Content on a
Content Page within a Yahoo Property (the "Initial Term"). After the Initial
Term, this Agreement will be automatically renewed for successive additional six
month 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).
7.2 Termination for Cause. Notwithstanding the foregoing, this Agreement may be
terminated by either party immediately upon notice if the other party: (w)
becomes
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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 following written notice to such party. Work in process best efforts
attempts to remedy breaches identified shall be considered adequate to be
construed as a "remedy".
7.3 Effect of Termination. Any termination pursuant to this Section 7 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 5, 6, 7, 8, 9, 10, and this Section 7.3 shall survive any termination
or expiration of this Agreement.
SECTION 8: RESOLUTION OF DISPUTES:
(a) The parties desire to resolve disputes arising out of this Agreement without
litigation. Accordingly, except for action seeking a temporary restraining order
or injunction related to the purposes of this Agreement, or suit to compel
compliance with this dispute resolution process, the parties agree to use the
following alternative dispute resolution procedure as their sole remedy with
respect to any controversy or claim arising out of or relating to this Agreement
or its breach.
(b) At the written request of a party, each party will appoint a knowledgeable,
responsible representative to meet and negotiate in good faith to resolve any
dispute arising under this Agreement. The parties intend that these negotiations
be conducted by non-lawyer, business representatives. The location, format,
frequency, duration, and conclusion of these discussions shall be left to the
discretion of the representatives. Upon agreement, the representatives may
utilize other alternative dispute resolution procedures such as mediation to
assist in the negotiations. Discussions and correspondence among the
representatives for purposes of these negotiations shall be treated as
confidential information developed for purposes of settlement, exempt from
discovery and production, which shall not be admissible in the arbitration
described below or in any lawsuit without the concurrence of all parties.
Documents identified in or provided with such communications that are not
prepared for purposes of the negotiations are not so exempted and may, if
otherwise admissible, be admitted in evidence in the arbitration or lawsuit.
(c) If the negotiations do not resolve the dispute within 60 days of the initial
written request, the dispute shall be submitted to binding arbitration by a
single arbitrator pursuant to the Commercial Arbitration Rules of the American
Arbitration Association. A party may demand such arbitration in accordance with
the procedures set out in those rules. Discovery shall be controlled by the
arbitrator and shall be permitted to
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the extent set out in this section. Each party may submit in writing to a party,
and that party shall so respond, to a maximum of any combination of 35 (none of
which may have subparts) of the following: interrogatories, demands to produce
documents and requests for admission. Each party is also entitled to take the
oral deposition of one individual of another party. Additional discovery maybe
permitted upon mutual agreement of the parties. The arbitration hearing shall be
commenced within 60 days of the demand for arbitration. The arbitration shall be
held in Santa Clara, California. The arbitrator shall control the scheduling so
as to process the matter expeditiously. The parties may submit written briefs.
The arbitrator shall rule on the dispute by issuing a written opinion within 30
days after the close of hearings. The times specified in this section may be
extended upon mutual agreement of the parties or by the arbitrator upon a
showing of good cause. Judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction.
(d) Each party shall bear its own costs of these procedures. A party seeking
discovery shall reimburse the responding party the costs of production of
documents (to include search time and reproduction costs). The parties shall
equally split the fees of the arbitration and the arbitrator.
SECTION 9: OWNERSHIP.
9.1 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;
and (iii) neither Yahoo or its Affiliates shall now or in the future contest the
validity of the Licensor Brand Features. No licenses are granted by either party
except for those expressly set forth in this Agreement.
9.2 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. Yahoo or its Affiliates shall own all derivative
works created by Yahoo from the Licensor Content, including the Content Pages,
pursuant to this Agreement, to the extent such is separable from the Licensor
Content.
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SECTION 10: PUBLIC ANNOUNCEMENTS.
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.
SECTION 11: NOTICES: MISCELLANEOUS PROVISIONS
11.1 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 0000 Xxxxx
Xxxxx, XX 00000, Fax: (000) 000-0000 Attention: Vice President (e-mail:
xxxxxxxx@xxxxx.xxx), with a copy to its General Counsel
(e-mail:xxxxxx@xxxxx.xxx), 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.
11.2. 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 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 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 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 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. LICENSOR
By: [ILLEGIBLE] By: [ILLEGIBLE]
-------------------------------- -----------------------------------
Title: Vice President, Business Title: President
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Development
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Address: 3400 Central Expwy Address: 000 Xxxxxxx Xxxxxx, 0xx Xx.
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Xxxxx Xxxxx, XX 00000 Xxx Xxxx, XX 00000
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Telecopy: Telecopy: 000-000-0000
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E-mail: E-mail: xxx@xxxxxxxxxxx.xxx
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EXHIBIT C
DELIVERY AND TECHNICAL SPECIFICATIONS
A. Licensor's Responsibilities:
1. Send "static" content via email or as Microsoft Word documents.
2. Send regularly updated content to agreed upon email address(es) at
Yahoo.
3. Agree to keep all content current and to send updates in a timely
fashion.
B. Yahoo's Responsibilities:
1. Create email address(es) at Yahoo for receiving feeds from Licensor and
process feeds when they arrive.
2. Design, post and host the pages displaying the data.
C. Format of Content Delivery:
To be mutually agreed upon by both parties.
EXHIBIT D
LINKS
During the Term of this Agreement, the following links will be maintained:
LOCATION OF LINK LINK TO WHERE SPECIFICS OF LINK
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At the top of each page XxxxxxxXxxx.xxx FashionMall.Logo
containing FashionMall
content
At the bottom of each XxxxxxxXxxx.xxx Text link(s) to more/related
Page containing stories.
FashionMall content.
At the bottom of each XxxxxxxXxxx.xxx Text link as a part of the
Page containing copyright text.
FashionMall content
Within the content Relevant locations on the Text links
displayed as relevant and as XxxxxxxXxxx.xxx site or to
supplied by XxxxxxxXxxx.xxx (not sites related to the topic of
to excceed 2 links per article or the article.
at Yahoo's discretion).
To: Ben Nerasin, XxxxxxxXxxx.xxx
From: Xxxxxxxxx Xxxxxx, Yahoo!
This memo shall serve as an addendum to the "Yahoo! Inc. Content License
Agreement" with Internet Fashion Mall, LLC.
The new "Effective Date" of the contract shall now be the date of the launch of
Xxxxxxxxxxx.xxx content on the Yahoo! site. The terms of the contract will
commence on that date. Provided, however, that should the launch date be delayed
past December 31st, 1998, the contract shall be deemed to be expired and neither
party shall have any obligations to the other.
Agreed:
Yahoo! Inc.
By: [ILLEGIBLE]
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Title: VP Business Development
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Date: 6/4/98
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Internet Fashion Mall, LLC
By: [ILLEGIBLE]
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Title: 6/5/98
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Date: President
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