EXHIBIT 10.21
CONFIDENTIAL
DISTRIBUTION AND PROMOTION AGREEMENT
This Distribution and Promotion Agreement (the "AGREEMENT") is entered
into as of November 20, 2000 (the "EFFECTIVE DATE") between Yahoo! Inc., a
Delaware corporation with offices at 0000 Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxx, XX
00000 ("YAHOO") and Xxxxx.xxx, a Delaware corporation and a wholly owned
subsidiary of Ticketmaster Online-CitySearch, Inc., a Delaware corporation with
offices at 000 X. Xxxxxxxx Xxxx., Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000
("Match").
In consideration of the mutual promises contained in this Agreement, Yahoo and
Match hereby agree as follows:
SECTION 1. DEFINITIONS.
1.1 "CO-BRANDED CONFIRMATION PAGE" means the Page within Yahoo Personals
substantially similar in form to the example attached as Exhibit D (a)
to which users will navigate directly if they click on the "Continue to
Xxxxx.xxx, click here for more details" link (or such similar language
determined by Yahoo) on the Preview Page, and (b) which contains (i)
Yahoo and Match co-branding, (ii) appropriate privacy notices as
determined by Yahoo, and (iii) the Send Link.
1.2 "CUSTOMER SERVICE HOURS" means the following hours maintained by
Match's customer service department: 8:30 a.m. through 8:00 p.m.
Central Time Monday through Thursday, 8:30 am. through 5:00 p.m.
Central Time each Friday, and 9:30 a.m. through - 5:30 p.m. Central
Time, each Sunday.
1.3 "DELIVERY FORMAT" means delivery as an HTTP POST to a single URL.
1.4 "EMAIL Registration" means the registration area within the
Pre-Populated Page on the Match Site which requests that users who are
eighteen (18) years old or older choose to receive promotional
information by clicking on a box that says "Yes, I would like to
receive unique offers and information from Xxxxx.xxx's partners" or
such other language as Xxxxx.xxx shall determine, subject to Yahoo's
approval, which shall not be unreasonably withheld.
1.5 "GETTING STARTED TEXT LINK" means a Link that permits users to navigate
directly to the Getting Started Page substantially similar in form to
the example attached hereto as EXHIBIT L.
1.6 "GETTING STARTED PAGE" means the Page within Yahoo Personals
substantially similar in form to the example attached as EXHIBIT F that
includes information advising users that they may also submit their
responses to the Personal Ad Fields to Match to allow users the
opportunity to create a Match Personal Ad.
CONFIDENTIAL
1.7 "INFORMATION PAGE" means the Page within Yahoo Personals substantially
similar in form to the example attached hereto as EXHIBIT G, which
contains (a) Yahoo and Match co- branding, (b) information regarding
the placement of Match Personal Ads on the Match Site, and (c) a Link
to the first Page of the Post An Ad Process.
1.8 "INSIDE PERSONALS WEST MODULE" means the module located on the west
side of the front Page of Yahoo Personals which contains a listing of
certain text links as determined by Yahoo.
1.9 "INTELLECTUAL PROPERTY RIGHTS" means 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.
1.10 "LINK" means a visible graphic or textual indicator located within a
Page that permits a user to navigate the World Wide Web; when selected
by a user, this indicator directs the user's Internet browser
connection onward to a specified Page on the same or any other Web site
via a URL, (whether perceptible or not) and establishes a direct
connection between the browser and the new Page.
1.11 "MATCH BANNER" means an advertising unit that (a) promotes the Match
Service; (b) contains Match Brand Features; (c) has dimensions of **
wide by ** high; (d) does not contain more than ** of animation; (e)
does not contain **; (f) has a file size **; and (g) permits users
to navigate directly to the Match Site.
1.12 "MATCH BANNER LAUNCH DATE" means the date the Parties mutually agree to
launch the Match Banners which date shall be on or before January 1,
2001.
1.13 "MATCH BRAND FEATURES" means all trademarks, service marks, logos and
other distinctive brand features of Match that are used in or relate to
its business.
1.14 "MATCH DELIVERABLES" means those materials necessary for Yahoo to
provide the Match Banners in accordance with this Agreement, including
but not limited to text, artwork and other design elements, as well as
all URLs, URL formats (as applicable) and other functional elements.
1.15 "MATCH LINKS" means any Link placed by Yahoo under this Agreement,
including but not limited to the Links pursuant to the Yahoo Linking
Program.
1.16 "MATCH INTEREST BOX" is the "check box" substantially similar in form
to the example set forth in EXHIBIT H that (a) is set to default as
"unselected" if a user does not affirmatively click to check the box,
(b) users may check to indicate a desire to post a personal ad oil
Match, (c) is located on the last Page of the Post An Ad Process, (d)
will allow users to navigate directly to the Preview Page by clicking
the "continue" button, and (e) contains Match Brand Features.
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
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1.17 "MATCH PERSONAL AD" means a personal advertisement on the Match Site
posted by a user by submitting the Personal Ad Data and completing the
Email Registration, as such personal ad may be modified by time to time
by such user on the Match Site.
1.18 "MATCH RESTRICTED COMPANY" means those entities listed in Exhibit I and
any affiliates of those listed entities.
1.19 "MATCH SERVICE" means the online personals and matchmaking service
operated by Match on the Match Site.
1.20 "MATCH SITE" means the Web site owned or operated on behalf on Match,
which is dedicated to on-line personal ads and is currently located at
XXXX://XXX.XXXXX.XXX.
1.21 "ONE&ONLY NETWORK" means the Web site owned or operated on behalf of
Match, which is dedicated to on-line personal ads and is currently
located at XXXX://XXX.XXXXXXXXXX.XXX.
1.22 "OPT-IN USER" means each user (a) who has elected to check the Match
Interest Box and continue to the Co-Branded Confirmation Page; (b) who
has navigated to the Match Site by clicking on the Send Link: (c) who
has completed the Email Registration, and (d) with respect to which
Yahoo has provided Match his or her responses to the Personal Ad
Fields; provided however, that an Opt-In User will not include any user
(as identified by the user's email address) who has either previously
been deemed an Opt-In User or who is already a registered Match or
One&Only Network user.
1.23 "PAGE" means any World Wide Web page (or, for on-line media other than
Web sites, the equivalent unit of the relevant protocol).
1.24 "PAGE VIEW" means a user's request for a Page as measured by Yahoo's
advertising reporting system.
1.25 "PRE-POPULATED PAGE" means a Page within the Match Site substantially
similar in form to the example attached as EXHIBIT J (a) on which a
user's Personal Ad Data will automatically appear to that user as
pre-populated responses to the same data field requests as contained in
the Personal Ad Fields, (b) that a user must complete in order to
create a Match Personal Ad, and (c) which contains the Email
Registration.
1.26 "PRE-POPULATED PAGES" means a mechanism created by Match that causes a
user's Personal Ad Data as delivered by Yahoo to automatically
pre-populate and appear to that user on the Pre-Populated Page as
pre-populated responses to the same data field requests as contained in
the Personal Ad Fields.
1.27 "PREVIEW PAGE" means the Page within Yahoo Personals substantially
similar in form to the example attached as EXHIBIT K (a) to which users
will navigate directly if they have elected to check the Match Interest
Box and clicked the "continue" button as shown on Exhibit H), (b) which
will allow users to link to another Page within Yahoo Personals for
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the purpose of editing their Yahoo Personal Ad and which Page may
include the opportunity for the user to elect and implement optional
features that relate specifically to a personal ad (e.g., photographs,
edit text, voicemail), before linking back to the Preview Page, and (c)
contains a link which navigates users directly to the Co-Branded
Confirmation Page.
1.28 "PERSONAL AD DATA" means the responses to the Personal Ad Fields solely
by a user who has both (a) checked the Match Interest Box and navigated
to the Co-Branded Confirmation Page from the Preview Page; and (b)
directly navigated to the Match Site by clicking the Send Link.
1.29 "PERSONAL AD FIELDS" means the following data fields which a user is
asked to complete in order to submit his or her Yahoo Personal Ad on
Yahoo Personals: Zip Code; Gender: Preference; Ethnicity; Education;
Religion; Height; Body Type; Age; Smoke; Drink; Have Children; Ad
Title; provided, however, that Yahoo may include additional data fields
or delete certain data fields so long as Yahoo uses ** efforts to
substitute a deleted data field with another reasonably similar data
field.
1.30 "POST AN AD TEXT LINK" means a Link substantially similar in form to
the example attached hereto as EXHIBIT L, that permits users to
navigate directly to a Page within the Post An Ad Process.
1.31 "POST AN AD PROCESS" means the Page (or Pages as determined by Yahoo)
located within Yahoo Personals which includes (a) the process for users
to submit a Yahoo Personal Ad to Yahoo, and (b) the Match Interest Box
at the end of the data field entry process.
1.32 "REACH MORE PEOPLE TEXT LINK" is a Link substantially similar in form
to the example attached hereto as EXHIBIT L, that permits users to
navigate directly to the information Page.
1.13 "RUN OF NETWORK" means advertising banner placements in the north
banner position across the Yahoo Properties.
1.34 "SEND LINK" is a Link on the Co-Branded Confirmation Page that reads
"Send my personal information to Xxxxx.xxx to create a Xxxxx.xxx
profile," or similar language determined by Yahoo, that will allow a
user to navigate directly to the Pre-Populated Page on the Match Site.
1.35 "TERM" means the period beginning on the Effective Date and continuing
for a period of ** after the Yahoo Linking Program Launch Date,
unless either party terminates this Agreement in accordance with
Section 13.2.
1.36 "YAHOO BRAND FEATURES" means all trademarks, service marks, logos and
other distinctive brand features of Yahoo that are used in or relate to
its business.
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
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1.37 "YAHOO EMAIL MESSAGE" means an Email message provided by Match pursuant
to Section 4.1 which contains a Link substantially similar in form to
the example attached hereto as Exhibit M and which will navigate users
directly to the Yahoo Email Message Link Page.
1.38 "YAHOO EMAIL MESSAGE LINK Page" means a "jump page" designed by Yahoo
and located within Yahoo Personals to which users will navigate
directly from the Yahoo Email Messages.
1.39 "YAHOO LINKING PROGRAM" means the linking program described in Section
2.4.
1.40 "YAHOO LINKING PROGRAM LAUNCH DATE" means the date Yahoo publicly
launches the Yahoo Linking Program or as otherwise provided in Section
8.3.
1.41 "YAHOO PERSONAL ADS" means personal advertisements created in
accordance with the information submitted by users of the Yahoo
Properties to appear within Yahoo Personals.
1.42 "YAHOO PERSONALS" means the U.S. targeted Yahoo Property dedicated to
personal advertisements, currently located at
XXXX://XXXXXXXXX.XXXXX.XXX.
1.43 "YAHOO RESTRICTED COMPANY" means those entities listed in EXHIBIT N and
any affiliates of those listed entities.
1.44 "YAHOO PROPERTY" means any Yahoo branded or co-branded property or
service that is (a) within the xxxxx.xxx domain; (b) targeted at users
in the United States; (c) developed in whole or in part by Yahoo; and
(d) distributed or made available to the general public by Yahoo via
the Internet or third party networks. "Yahoo Properties" will not be
deemed to mean any Yahoo branded or co-branded property or service that
is (1) outside the xxxxx.xxx domain (e.g., XXXX://XXX.XXXXXXXXX.XXX);
or (2) targeted at users outside the United States, regardless of
whether the property or service is within the xxxxx.xxx domain (e.g.,
xxxx://xxxxxxx.xxxxx.xxx).
SECTION 2. YAHOO LINKING PROGRAM.
2.1 PRE-POPULATION PROCESS. Match will be solely responsible for creating
and maintaining the Pre-Populated Page and the Pre-Population Process
during the Term. Match agrees that it will not make any material
changes to the Pre-Populated Page without the approval of Yahoo, which
approval will not be unreasonably withheld. The Parties acknowledge
that the Personal Ad Data provided by Yahoo to Match may include blank
responses by users who have elected not to respond to certain Personal
Data Fields that are optional.
2.2 DESIGN AND MAINTENANCE. Yahoo will be solely responsible for creating
and maintaining the Yahoo Linking Program during the Term. Yahoo will
be the "executive producer" of, and Yahoo will control and have sole
discretion with respect to, the appearance, design, layout, service
offerings, and look-and-feel of Yahoo Personals, all offerings within
Yahoo Personals, and the Yahoo Linking Program, except as otherwise set
forth in
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Section 7.1 and the following sentence in this Section 2.2. Yahoo
agrees that it will not make any material changes to Exhibits D, F, G
and L solely with respect to the location, relative size, and relative
prominence of the Match Brand Features, the location, relative size,
and relative prominence of the Match Links, and the language of the
text specifically relating to Match without the approval of Match,
which approval will not be unreasonably withheld. In addition, Yahoo
agrees that it will consider suggestions by Match to the Pages
described in Exhibits D, F, G, and I, above relating to the enhancement
of the user experience.
2.3 COMMENCEMENT. Yahoo will use ** to be "ready to commence" (as defined
in Section 8.3) the Yahoo Linking Program by no later than December
22, 2000; provided, however, that Match acknowledges that Yahoo will
not launch the Yahoo Linking Program until Match has created and
implemented a functional Pre-Population Process and Pre-Population
Page. Match will use ** to create and implement the Pre-Populated
Page and Pre-Population Process by December 22, 2000. Yahoo and
Match will use ** efforts to publicly launch the Yahoo Linking
Program as soon as practical following the date on which both (1)
Yahoo is ready to commence the Yahoo Linking Program and (2) Match
has created and implemented a functional Pre-Population Process and
Pre-Population Page.
2.4 PLACEMENT. The Yahoo Linking Program will consist of a mechanism
created by Yahoo for providing the Personal Ad Data to Match via the
Delivery Format, and placement of the following:
(a) the Post an Ad Text Link, Reach More People Text Link and the
Getting Started Text Link within the Inside Personals West
Module;
(b) the Getting Started Page, Information Page and the Co-Branded
Confirmation Page;
(c) the Match Interest Box; and
(d) the Send Link.
2.5 PRIVACY NOTICES. Yahoo may include appropriate privacy notices in
connection with the Yahoo Linking Program as it determines in its sole
discretion. Match will include its privacy policy, as such policy may
be amended front time to time in Match's discretion, on the
Pre-Populated Page by hyperlink.
2.6 CUSTOMER SERVICE. Match will be responsible for all customer service
relating to the Match Service.
2.7 ADVERTISING RIGHTS. Subject to Section 7.1, Yahoo will (a) have the
sole right to sell, license or otherwise transfer the right to
advertise on each Page of the Yahoo Properties, including but not
limited to Yahoo Personals, and (b) retain all revenue generated from
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
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the transfer of such right. All advertising strategy, rates and
policies will be established by Yahoo in its sole discretion.
SECTION 3. MATCH BANNERS.
3.1 MATCH BANNER. Commencing oil the Match Banner Launch Date, Yahoo will
provide the Match Banner on a rotating basis through Run of Network
until its Page View Obligation under Section 3.2 is met.
3.2 PAGE VIEWS OBLIGATION. With respect to the Match Banner, Yahoo will
deliver ** Page Views (the "Page View Obligation") of the Match
Banners. Yahoo will make ** to deliver these Page Views according to
the specific breakdown set forth in EXHIBIT A. Such Page Views will
be scheduled to be delivered evenly over the ** period commencing on
the Match Banner Launch Date, unless otherwise agreed by the Parties
("Banner Period").
3.3 MAKE GOOD. In the event that Yahoo fails to meet its Page View
Obligation before expiration of the Term, Yahoo will "make good" the
shortfall in the areas of placement set forth in EXHIBIT A by
extending its obligations under Sections 3.2 until its Page Views
Obligation is satisfied within ** following the end of the Term. The
provisions of this Section 3.3 set forth the liability of Yahoo, and
Match's sole remedy, for Yahoo's failure to meet its Page View
Obligation.
3.4 INITIAL PAGE VIEW DELIVERY. Match will purchase and Yahoo will
make ** to deliver, the first ** Page Views of the Page View
Commitment by the ** anniversary date of the Yahoo Linking Program
Launch Date Initial Page View Delivery"). In the event that either
Party exercises its right of early termination pursuant to Section
13.2(a)(ii) and Yahoo fails to deliver the Initial Page View
Delivery, Yahoo will "make good" the shortfall within ** after such
early termination. The previous sentence of this Section 3.4 sets
forth the entire liability of Yahoo, and Match's sole remedy, for
Yahoo's failure to meet the Initial Page View Delivery of the Page
View Obligation in the event of such early termination.
3.5 MATCH BANNER SPECIFICATIONS: The Match Banner promotion shall comply
with Yahoo's applicable standard advertising specifications, including
those set forth at XXXX://XXX.XXXXX.XXX/XXXX/XXXXXXXXXXX/XXX/XXXXX
PAGE.HTML. The same may be modified by Yahoo at its discretion. In
addition, Yahoo reserves the right, at any time, to redesign or modify
the organization, structure, specifications, "look and feel,"
navigation. guidelines and other elements of any Yahoo Property on
which a Match Banner is placed; provided, however, that in such event
Yahoo will provide Match with reasonably similar placement of the Match
Banners as provided pursuant to the Agreement.
SECTION 4. MATCH EMAIL PROGRAM
4.1 MATCH EMAIL DELIVERY. Match will deliver ** Yahoo Email Messages
("Yahoo Email Obligation") and will use commercially reasonable efforts
to
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
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deliver the Yahoo Email Messages in accordance with the specific
breakdown in EXHIBIT E and in an evenly distributed manner over the
Term. Match will make commercially reasonable efforts to deliver the
first ** Yahoo Email Messages by the ** anniversary date of the
Yahoo Linking Program Launch Date ("Initial Yahoo Email Delivery").
In the event that (a) either Party exercises its right of early
termination pursuant to Section 13.2(a)(ii) and Match fails to
deliver the Initial Yahoo Email Delivery, Match will "make good" the
shortfall in the areas of placement set forth in EXHIBIT E within **
after such early termination, or (b) neither Party exercises its
right of early termination and Match fails to deliver the Yahoo
Email Obligation before the expiration of the Term, Match will "make
good" the shortfall in the areas and placement set forth in EXHIBIT
E until the total number of Yahoo Email Messages are delivered in
full within ** following the expiration of the Term. Such "make
good" sets forth the entire liability of Match, and Yahoo's sole
remedy, for Match's failure to meet its obligations with respect to
the total number of Yahoo Email Messages to be delivered hereunder.
Match will only deliver Yahoo Email Messages to users who have
indicated a willingness to receive promotional offers from Match.
The Parties agree more than one Yahoo Email Message may go to the
same user provided that such Yahoo Email Messages are each unique.
Yahoo will provide to Match the Yahoo-related text for the Yahoo
Email Messages. Match will not send any Yahoo Email Messages
referencing any Yahoo Restricted Company. Notwithstanding the
foregoing, Match shall be permitted to include ** with ** in
connection with such companies' ** properties.
4.2 MATCH RESTRICTED COMPANIES. In no event will Yahoo ** or **
or **, or ** or ** the placement on the Yahoo Email Message Link
Page which contains any graphic or textual hyperlinks or promotions
from any Match Restricted Companies.
4.3 COMPLIANCE WITH LAW. All content and material contained in the
Yahoo-related text for the Yahoo Email Messages must ** comply,
with all applicable federal, state and local laws, rules and
regulations, including but not limited to consumer protection laws and
rules and regulations governing product claims, truth in labeling and
false advertising.
SECTION 5. IMPLEMENTATION.
5.1 USER INTERFACE. Yahoo will be solely responsible for the user interface
and placement of the Yahoo Linking Program. Except as otherwise
provided in this Agreement, Yahoo reserves the right, at any time, to
redesign or modify the organization, structure, specifications, "look
and feel," navigation, guidelines and other elements of any Yahoo
Property, including any Yahoo Property on which a Match Link or Match
Banner is placed.
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
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5.2 MATCH DELIVERABLES. Match will be solely responsible for and will
provide Yahoo with all Match Deliverables in accordance with the
specifications set forth in this Agreement and Yahoo's standard
advertising guidelines, currently located under the "Facts and
Figures" category at XXXX://XXXXXX.XXXXX.XXX and subject to change
from time to time. Match's compliance with the aforementioned
specifications and guidelines will be determined by Yahoo in its
reasonable discretion. Match will deliver to Yahoo (a) the Match
Deliverables at least ** before the Match Banner Launch Date, and
(b) any mutually agreed upon updates to those Match Deliverables at
least ** prior to the scheduled activation date of the first
affected Match Banner.
5.3 YAHOO RESTRICTED COMPANIES. In no event will Match sell or barter
**, or **, for placement on the ** on the ** that users reach by
click-through directly from any Match Banner which contains any
graphic or textual hyperlinks or promotions from any Yahoo
Restricted Companies in a manner that specifically targets such
advertising to appear to users that click through from a Yahoo
Property. For example, it will be considered a material breach of
this Agreement if Match or any of its agents or representatives
offer, sell, place, or barter any advertisement placements to or for
Yahoo Restricted Companies on such pages based on any consideration
that Yahoo users may click-through to such pages. Further, in no
event will the first page on the Match Site that users reach by
clicking-through directly from any Match Link pursuant to the Yahoo
Linking Program contain graphic or textual hyperlinks or promotions
of any Yahoo Restricted Company.
5.4 LINK BACK TO YAHOO. Match will place a Yahoo graphic link (Back to
Yahoo Personals") on the top of the first Page of the Match Site to
which users click through directly from any Link as part of the Yahoo
Linking Program. The Yahoo graphic link will (a) be placed in a manner
determined by Match and reasonably approved by Yahoo; (b) contain the
Yahoo name and logo as provided by Yahoo in a mutually acceptable size;
and (c) directly link the user back to a Page on the Yahoo Properties,
as designated by Yahoo.
5.5 MATCH SITE PERFORMANCE. The Match Site shall be maintained to (a)
handle ** simultaneous requests; (b) handle a ** uptime and **
downtime per ** of the Term (except for planned downtime that may be
required for system enhancements, upgrades or preventative
maintenance); and (c) initiate data transfers from the Match Site to
the Yahoo Network within **, on average, of request.
5.6 COMPLIANCE WITH LAW; Disclaimers. All content and material contained in
the Match Links and Match Banners must ** comply with all applicable
federal, state and local laws, rules and regulations, including but
not limited to consumer protection laws and rules and regulations
governing product claims, truth in labeling and false advertising.
All content and material contained in the Match Links and the Match
Banners provided hereunder are subject to Yahoo's prior approval,
which approval will not be unreasonably withheld.
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
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5.7 USER EXPERIENCE. Yahoo and Match will use ** efforts to prevent
their respective users from abusing the other's users (e.g., Yahoo and
Match will attempt to reduce the "spam" that appears on the Yahoo
Personals site from users of Match Site and the One&Only Network and
vice versa).
5.8 QUARTERLY MEETINGS. The Parties will use ** efforts to cause the
appropriate individuals from each Party to meet ** during the Term
at the Yahoo offices in Santa Clara, California, to discuss the
performance of the Yahoo Linking Program.
SECTION 6. LICENSES.
6.1 YAHOO BRAND FEATURES. During the Term, Yahoo hereby grants to Match a
non-exclusive, non-transferable, worldwide, royalty-free license to
use, reproduce and display the Yahoo Brand Features solely as described
in Sections 4.1 and 5.4.
6.2 MATCH BRAND FEATURES. During the Term, Match hereby grants to Yahoo a
non-exclusive, non-transferable, worldwide, royalty-free license to
use, reproduce and display the Match Brand Features solely (a) to
indicate the location of the Match Links and in the Match Banners as
set forth herein; (b) in connection with the marketing and promotion of
the Yahoo Linking Program; and (c) subject to Match's prior approval,
in connection with the marketing and promotion of the Yahoo Properties.
SECTION 7. RESTRICTIONS AND RIGHT OF FIRST PRESENTATION
7.1 PROGRAM RESTRICTIONS. During the Term, in no event shall Yahoo **
to appear ** to any third party which allows users to ** to such
third party's site from Yahoo Personals nor shall Yahoo, prior to
the End Date (as defined in Section 7.2 below), offer any such
program to any third party, whether or not such program is to appear
on ** during or after the Term. Notwithstanding the foregoing, this
provision shall not prevent Yahoo from accepting advertising on any
Yahoo Property, including but not limited to **, from any
advertiser; provided, however, Yahoo may not ** such **, or **, in
it manner that specifically targets ** of Match Restricted Companies
to appear on the same page as the Match Banners or within the
Co-Branded Confirmation Page or the Information Page. For purposes
of clarification, the parties acknowledge that advertising of Match
Restricted Companies may appear on the same page as the Match
Banners from time to time in connection with a "run of network" or
similar advertising rotation.
7.2 RIGHT OF FIRST PRESENTATION. At least ** prior to the expiration of
the Term, Yahoo will provide written notice to Match in the event
that Yahoo, in its sole discretion, elects to extend the
availability of the terms of the Yahoo Linking Program as combined
with the terms of the placement of the Match Banners to Match. Yahoo
will describe Yahoo's reasonable business requirements for such
program in its written notice to Match. The parties will use
good-faith efforts to negotiate and execute an agreement
memorializing their respective relationship with respect to such
program under
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
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reasonable terms and conditions. If Match declines to commence good
faith negotiations with Yahoo within ** after receiving such written
notice from Yahoo, or if the parties fail to reach agreement within
** following the commencement of good faith negotiations (in either
case, the "End Date"), Yahoo may offer the opportunity to any third
party. The parties acknowledge that the opportunities and terms
offered in any such program may differ substantially from those
contained in this Agreement.
SECTION 8. PAYMENTS.
8.1 SLOTTING FEE. Match will pay to Yahoo a non-refundable, non-creditable
slotting fee of **. ** dollars ** of such fee shall apply towards
the purchase of the Yahoo Linking Program and ** of such fee shall
apply towards the purchase of the Match Banners. Such fee shall be
paid to Yahoo in accordance with the payment schedule set forth on
EXHIBIT B hereto. The first such payment shall be designated a
non-refundable set up fee for the design, consultation, development,
implementation and placement of the Yahoo Linking Program and the
Match Banners.
8.2 CONVERSION OF SLOTTING FEE. In the event that Match fails in any
material respects to provide Yahoo with the Match Deliverables in
accordance with Section 5.2, all payments made or due hereunder for the
Match Banners (as indicated on Exhibit P,) will be converted to a
non-refundable holding fee for making the advertising inventory
available to Match as provided herein until Match cures such
deficiency. In the event that Match fails to provide a functioning
Pre-Population Process and Pre-Populated Page at the title that Yahoo
is ready to commence the Yahoo Linking Program (as described in Section
8.3), all payments made or due hereunder for the Yahoo Linking Program
(as indicated on Exhibit B) will be converted to a non-refundable
holding fee for making the Yahoo Linking Program available to Match as
provided herein until Match cures any deficiency hereunder.
8.3 DELAY OF YAHOO LINKING PROGRAM LAUNCH DATE. In the event that Yahoo is
ready to commence the Yahoo Linking Program by December 22, 2000, but
Yahoo is prevented from launching the Yahoo Linking Program because
Match has not developed and implemented a functioning Pre-Population
Process or the Pre-Populated Page, Match will continue to be obligated
to make all payments in accordance with the schedule specified on
EXHIBIT B and the Yahoo Linking Program Launch Date will be deemed to
be December 22, 2000, regardless of when the Pre-Population Process is
implemented by Match. However, if Yahoo is not ready to commence the
Yahoo Linking Program by December 22, 2000, then (a) Match will still
be obligated to make the December 1, 2000 and the December 22, 2000
payments, and all payments relating to the Yahoo Promotion, as
described on EXHIBIT B, and (b) the due date for the remaining payments
for the Yahoo Linking Program will be adjusted by the number of days
from December 22, 2000 until the Yahoo Linking Program Launch Date
(e.g., if Match has provided the Pre-Population Process but Yahoo
delays the Yahoo Linking Program Launch Date until December 30,
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
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2000, the due date for the ** payment will be adjusted to **, the **
payment, will be adjusted to ** and so forth). The Parties further
agree that if Yahoo is not ready to commence the Yahoo Linking
Program by **, then, notwithstanding Section 8.1, (a) Yahoo will **
upon execution of this Agreement equal to ** and the portion of the
** and ** to Yahoo attributable to the Yahoo Linking Program (as
indicated on Exhibit B) and (b) the obligations of both Parties
solely with respect to the Yahoo Linking Program shall terminate.
Yahoo will be deemed "ready to commence" the Yahoo Linking Program
as described in this Section when (a) Yahoo has developed (but not
yet made publicly available) all of the links described in Section
2.4, and (b) Yahoo has developed (but not yet implemented) the
mechanism to deliver the Personal Ad Data to Match in the Delivery
Format, regardless of whether Match has developed the Pre-Population
Process or the Pre-Populated Page. This provision describes Yahoo's
sole liability for its failure to provide the Yahoo Linking Program
by **.
8.4 OPT-IN FEE. In addition, Match will pay to Yahoo ** for each Opt-In
User ** as measured on a cumulative basis during the Term (the
"Opt-In Threshold"). Notwithstanding the foregoing, in no event will
the total amount that Match pays to Yahoo in connection with the
Agreement exceed **. After the Opt-In Threshold has been reached,
Match's payments to Yahoo for Opt-In Users in excess of the Opt-In
Threshold will be due and payable within thirty (30) days of the end
of each month based on the number of Opt-In Users during that month.
With each payment, Match will provide Yahoo a report certified by an
officer of Match showing the number of Opt-In Users. Match will
maintain complete and accurate records in accordance with generally
accepted methods of accounting to revenue share transactions
described in this section, and will allow Yahoo, at its own expense,
to direct an independent certified public accounting firm or other
qualified independent auditor to inspect and audit such records
during normal business hours with written notice to Match to
determine whether there has been any underpayment of payments
herein. In the event that any audit reveals ail underpayment of more
than **, Match will pay the reasonable cost of such audit and the
amount equal to such underpayment.
8.5 PAYMENT INFORMATION. All payments herein are non-refundable and
non-creditable and will be made by Match via wire transfer into Yahoo's
main account according to the wire transfer instructions set forth in
EXHIBIT C.
8.6 LATE PAYMENTS. Any portion of the above payments that has not been paid
to Yahoo within 5 days after the dates set forth herein will bear
interest at the lesser of (a) 1% per month or (b) the maximum amount
allowed by law.
SECTION 9. CONFIDENTIAL INFORMATION, PUBLICITY, AND USER DATA.
9.1 TERMS AND CONDITIONS. The terms and conditions of this Agreement will
be considered confidential and will not be disclosed to any third
parties, except to Match's or Yahoo's
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
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accountants and attorneys, or except as otherwise required by law.
Neither party will make any public announcement regarding the existence
of this Agreement without the other party's prior written approval. If
this Agreement or any of its terms must be disclosed under any law,
rule or regulation (e.g., as part of a filing with the United States
Securities and Exchange Commission), excluding an order or other
discovery request that is issued under seal by a court of competent
jurisdiction or that is otherwise subject to non-disclosure, the
disclosing party will (a) give written notice of the intended
disclosure to the other party at least 5 days in advance of the date of
disclosure; (b) redact portions of this Agreement to the fullest extent
permitted under any applicable laws, rules and regulations; and (c)
submit a request, to be agreed upon by the other party, that such
portions and other provisions of this Agreement requested by the other
party receive confidential treatment under the laws, rules and
regulations of the body or tribunal to which disclosure is being made
or otherwise be held in the strictest coincidence to the fullest extent
permitted under the laws, rules or regulations of any other applicable
governing body.
9.2 PUBLICITY. Any and all public announcements relating to this Agreement
and to subsequent transactions between Yahoo and Match and the method
of their release must be approved in advance of the release, in
writing, by both Yahoo and Match. Both parties will cooperate to
prepare and distribute a press release from Match upon commencement of
the Yahoo Linking Program which generally describes the Yahoo Linking
Program within l0 business days of the date the Yahoo Linking Program
is made publicly available.
9.3 NONDISCLOSURE AGREEMENT. Yahoo and Match acknowledge and agree that the
terms of the Mutual Nondisclosure Agreement between the Parties dated
effective as of November 20, 2000 will be incorporated by reference and
made a part of this Agreement, and will govern the use and disclosure
of confidential information and all discussions pertaining to or
leading to this Agreement.
9.4 USER DATA. Yahoo and Match agree that protecting users' privacy rights
is a critical element of their business relationship. Accordingly, each
party agrees to adhere to TRUSTe guidelines on the collection and use
of all user data. Match agrees that it will collect such data pursuant
to written privacy policies that are conspicuously posted via
hyperlinks on all pages where a user is requested to provide personal
or financial information and will continuously satisfy all applicable
privacy and consumer protection laws and regulations. Yahoo agrees that
it will collect such data pursuant to written privacy policies that are
conspicuously posted via hyperlinks on the pages where a user is
requested to provide responses to the Personal Ad Fields pursuant to
this Agreement and will continuously satisfy all applicable privacy and
consumer protection laws and regulations.
9.5 DATA OWNERSHIP: 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 (including, without limitation, the
Personal Ad Data) will be retained by and owned solely by Yahoo.
Notwithstanding the foregoing and subject to the restrictions set
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forth in Section 9.6 below, Yahoo will grant to Match an irrevocable
(except as otherwise provided in Section 9.8), perpetual, limited,
non-exclusive, non-transferable license (the "Data License") to use,
display and reproduce the Personal Ad Data. provided, however. such
user has expressed his or her consent by completing the Email
Registration ("Shared User Data"). All other Personal Ad Data received
by Match with respect to which a user has not completed the Email
Registration will be immediately destroyed by Match. All other
information and data provided to Match on the Match Site or otherwise
collected by Match relating to user activity oil the Match Site will be
retained by and owned solely by Match. Each party agrees to use all
personally identifying information only as authorized by the user that
provided such information and will not disclose, soil. license or
otherwise transfer any such user information to any third party other
than in accordance with its published privacy policy or use the user
information for the transmission of "junk mail," "spam," or any other
unsolicited mass distribution of information.
9.6 EMAIL REGISTRATION RESTRICTIONS: Match will include the Email
Registration on the Pre- Populated Page for users who have both (a)
checked the Match Interest Box and navigated to the Co-Branded
Confirmation Page by clicking the "continue" button for more
details; and (b) directly navigated to the Match Site by clicking
the Send Link. In the event a user "opts-in" to receive such
promotion or other information from Match by completing the Email
Registration, Match agrees to use the information provided by such
user and any Shared User Data solely for its own use and with the
understanding that none of the information provided by such users
and any Shared User Data. and reports or data or information
containing such information, will be sold, loaned, rented or
otherwise transferred or made available or otherwise disclosed or
conveyed directly or indirectly to any third parties without prior
approval of such user and, during the Term, Yahoo; provided that the
public posting of information by a user who has affirmatively
consented to such posting on the Match Site will not be considered
to be a violation of the Data License. During the Term, Match
further agrees that with respect to any email and/or other messages
from Match to users who have completed the Email Registration, Match
will not send messages referencing any Yahoo Restricted Company.
Notwithstanding the foregoing, Match shall be permitted to include
** to its ** with **, ** in connection with such companies' **
properties.
9.7 PRIVACY OF USER DATA. Match shall use commercially reasonable efforts
to ensure that all information provided by users pursuant to this
Agreement is maintained, accessed and transmitted in a secure
environment and in compliance with industry standard security
specifications. Match shall provide a link to its policy regarding the
protection of user data on those pages of the Match Site where the user
is requested to provide personal information.
9.8 DATA LICENSE. The Parties agree that Yahoo may revoke the Data License
in the event that (a) Match does not comply with any order issued by
any Court of law relating to the Data license or (b) Match fails to pay
any judgment against it relating to its failure to comply with the Data
License.
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
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CONFIDENTIAL
SECTION 10. LIMITATION OF LIABILITY.
EXCEPT WITH RESPECT TO A PARTY'S INDEMNIFICATION OBLIGATIONS SET FORTH IN
SECTION 12, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER
PARTY (A) IN EXCESS OF ** IN THE AGGREGATE (OTHER THAN WITH RESPECT TO
PAYMENT OBLIGATIONS) AND (B) ANY AMOUNT WITH RESPECT TO ANY SUBJECT MATTER, OF
THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL
OR EQUITABLE, THEORY FOR (I) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL,
OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR GOODWILL
OR ANTICIPATED PROFITS OR LOST OF BUSINESS), EVEN IF SUCH PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES: OR (II) THE COST OR PROCUREMENT OF
SUBSTITUTE SERVICES.
SECTION 11. REPRESENTATIONS AND WARRANTIES.
11.1 BY MATCH. Match represents and warrants that at all times during the
Term (a) Match will comply in all material respects with its Terms
of Use, privacy policy, user instructions regarding the use of their
data, and any other guidelines posted on the Match Site; (b) Match
will notify Yahoo within ** of any complaints that it receives
relating to any Match Personal Ad placed in connection with the
Yahoo Linking Program; (c) Match will remove any Match Personal Ad
placed in connection with the Yahoo Linking Program for any reason
within ** after receipt of a request by Yahoo during Customer
Service Hours or, within ** of the next commencement of Customer
Service Hours if such request is received by Match outside of
Customer Service Hours; (d) Match has no notice as of the Effective
Date that the Pre-Population Process violates any Intellectual
Property of any third party; (e) Match has no knowledge that the
Pre-Population Process violates any Intellectual Property of any
third party; and (f) Match has obtained, through its ultimate parent
company, USA Networks, Inc., and will keep in force during the Term
and two (2) years thereafter, a blanket entertainment errors and
omissions insurance policy in the amount of ** per occurrence and **
in the aggregate covering Match, USA Networks, Inc. and USA
Networks, Inc.'s other subsidiaries, a copy of which has been
provided to Yahoo, to cover all risks relevant to this Agreement
(subject to the wording of the policy) and that Yahoo has been added
to such policy as an additional insured.
11.2 BY YAHOO. Yahoo represents and warrants that at all times during the
Term the Yahoo Brand Features and the Yahoo-related text for the Yahoo
Email Messages as provided by Yahoo to Match do not infringe the rights
of any third party, including without limitation any Intellectual
Property Rights, rights of publicity, rights of personality, rights of
privacy, rights to payment of royalties, or any other rights of third
parties.
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
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SECTION 12. INDEMNIFICATION.
12.1 BY MATCH. Match must, at its own expense, indemnify, defend and hold
harmless Yahoo, its affiliates and each of their respective officers,
directors, employees, representatives, and agents from and against and
in respect of any and all claims, liabilities, allegations, suits,
actions, investigations, judgments, deficiencies, settlements,
inquiries, demands or other proceedings of whatever nature or kind,
whether formal or informal, brought against Yahoo, its affiliates or
any of their respective officers, directors, employees,
representatives, or agents, as well as from and against and in respect
of any and all damages, liabilities, losses, costs, charges, fees and
expenses, including without limitation reasonable legal fees and
expenses, as and when incurred, relating to, based upon, incident to,
arising from, or in connection with (a) any claim that Match has not
complied with its Terms of Use, privacy policy, user instructions
regarding the use of user data, or any other guidelines posted on the
Match Site; (b) any claim that the Match Deliverables (including the
Match Brand Features as provided by Match to Yahoo) infringe the rights
of any third party, including without limitation any Intellectual
Property Rights, rights of publicity, rights of personality. rights of
privacy, rights to payment of royalties, or any other rights of third
parties; (c) any violation by Match of the Data License or its failure
to destroy the Personal Ad Data pursuant to Section 9.5; (d) any
violation by Match of its obligations or restrictions specified in
Section 9.6 with respect to user information and Shared User Data; (e)
any breach by Match of its representations and warranties contained in
Section 11.2; and (1) any other claim not otherwise subject to
indemnity pursuant to Section 12.1(a) through (e) above that the
services distributed, offered or provided by Match, including the
Pre-Population Process, infringe in any manner any Intellectual
Property Right of any third party or contains ally material or
information that is obscene, defamatory, libelous, slanderous, violates
any law or regulation, is negligently performed, or otherwise violates
ally person's right of publicity, privacy or personality. or has
otherwise resulted in any fraud, product liability, tort, breach of
contract injury, damage or harm to any person or entity; provided,
however, that solely with respect to this Section ** only, Match's
indemnification obligations shall be **.
12.2 BY-YAHOO. Yahoo must, at its own expense, indemnify defend and hold
harmless Match, its affiliates and each of their respective officers,
directors, employees, representatives, and agents from and against and
in respect of any and all claims, liabilities, allegations, suits,
actions, investigations, judgments, deficiencies, settlements,
inquiries, demands or other proceedings of whatever nature or kind.
whether formal or informal, brought against Match, its affiliates or
any of their respective officers, directors, employees,
representatives, or agents, as well as from and against and in respect
of any and all damages, liabilities, losses, costs, charges, fees and
expenses, including without limitation reasonable legal fees and
expenses, as and when incurred, relating to, based upon, incident to,
arising from, or in connection with the breach by Yahoo of any of its
** contained in Section **.
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
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12.3 PROCEDURE. All indemnification obligations under this Section will be
subject to the following requirements: (a) the indemnified party will
provide the indemnifying party with prompt written notice of any claim;
(b) the indemnified party will permit the indemnifying party to assume
and control the defense of any claim upon the indemnifying party's
written acknowledgment of the obligation to indemnify and (c) the
indemnifying party will not enter into any settlement or compromise of
any claim without the indemnified party's prior written consent, which
will not be unreasonably withheld. In addition, the indemnified party
may, at its own expense, participate in its defense of any claim.
SECTION 13. TERM AND TERMINATION.
13.1 TERM. This Agreement will commence upon the Effective Date and will
remain in effect for the Term.
13.2 EARLY TERMINATION.
(a) By Either PARTY.
i. This Agreement may be terminated at any time by
either party (1) immediately upon written notice
if the other party (A) becomes insolvent; (B)
files a petition in bankruptcy; or (C) makes an
assignment for the benefit of its creditors; or
(2) ** after written notice to the other party of
such other party's breach of any of its
representations, warranties, or obligations under
this Agreement in any material respect ** 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 (2) above with respect to a breach by Match
of its representations or warranties, Yahoo shall
have the right to suspend performance under
Section 2.4 of this Agreement for the notice
period unless and until the breach is fully
remedied by Match prior to the expiration of the
notice period and, in the event the breach is
fully remedied, the Term shall be extended by the
aggregate number of days Yahoo has suspended
performance pursuant to this Section 13.2(a)i, not
to exceed **.
ii. In addition, either party will have the **
to terminate the Agreement as of the **
anniversary date of the Yahoo Linking Program
Launch Date by providing the other party with at
least ** written notice prior to such anniversary
date. In the event either Party exercises its
right of early termination pursuant to this
Section 13.2(a)(ii), all obligations will end as
of the effective date of such early termination
other than (A) Yahoo's "make good" obligations, if
any, with respect to delivery of ** Yahoo Page
Views and Match's "make good" obligations, if any,
with respect to ** Yahoo Email Messages under the
Agreement, (B) Match's obligation to make payments
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
17
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pursuant to Section 8.1 equal to least ** (which
includes the first payment of **), ** of which
will apply towards the payment for the Yahoo
Linking Program, and (C) Match's obligation to pay
any fees for Opt-In Users obtained prior to the
date of termination pursuant to Section 8.4.
(b) BY YAHOO. Further, Yahoo shall have the right to terminate
this Agreement upon ** notice in the event that the
aggregate of the Match Site the One&Only Network and all
other matchmaking sites owned by USA Networks. Inc. and its
affiliates is no longer one of the top ** sites for paid
matchmaking and personals service as determined by Media
Metrix reach index. In the event that Yahoo exercises its
rights of termination pursuant to this Section prior to the
end of the then-current Payment Period (as defined on
Exhibit A), Yahoo agrees that it will shall ** attributable
to the Yahoo Linking Program with respect to the remainder
of such Payment Period. Such ** will be calculated by
dividing the pre-paid slotting fee attributable to the
Yahoo Linking Period by ** and multiplying the result by
the ** remaining in the then-current Payment Period as of
the effective date of termination under this Section
13.2(b).
(c) NON-EXCLUSIVE REMEDY. Unless otherwise provided, the foregoing
rights of termination will be in addition to any other legal
or equitable remedies that the terminating party may have.
(d) INJUNCTIVE-RELIEF. Yahoo and Match acknowledge that a breach
of the obligations contained in this Agreement relating to
privacy and Shared User Data, including without limitation,
any breach of the Data License, will cause irreparable harm to
Yahoo to which monetary damages would be inadequate.
Accordingly, in addition to any other remedy to which Yahoo
maybe entitled at law or in equity, Yahoo may be entitled to
injunctive relief to prevent breaches of any provision of this
Agreement and to specifically enforce the terms and provisions
hereof.
13.3 EFFECT OF TERMINATION. The provisions of Sections 1, 8 (with respect to
payments accrued through the date of expiration or termination) 9, 10,
11, 12, and 14 shall survive expiration or termination of this
Agreement.
SECTION 14. GENERAL PROVISIONS.
14.1 INDEPENDENT CONTRACTORS. It is the intention of Yahoo and Match that
Yahoo and Match are, and will be deemed to be, independent contractors
with respect to the subject matter of this Agreement, and nothing
contained in this Agreement will be deemed or construed in any manner
whatsoever as creating any partnership, joint venture, employment,
agency, franchise, seller-salesperson, master-servant, fiduciary or
other similar relationship between Yahoo and Match.
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
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14.2 ENTIRE AGREEMENT. This Agreement, including but not limited to all
Exhibits attached hereto, each of which is incorporated herein be
reference, represents the entire agreement between Yahoo and Match with
respect to the subject matter hereof and thereof and will supersede all
prior agreements and communications of the parties, oral or written,
including but not limited to the Letter of Intent dated November 6.
between Yahoo and Match.
14.3 AMENDMENT AND WAIVER. No amendment to, or waiver of, any provision of
this Agreement will be effective unless in writing and signed by both
parties. The waiver by any party of any breach or default will not
constitute a waiver of any different or subsequent breach or default.
14.4 GOVERNING LAW. This Agreement will be governed by and interpreted in
accordance with the laws of the State of California without regard to
the conflict of laws principles thereof.
14.5 LEGAL FEES. The prevailing party in any legal action brought by one
party against the other party and arising out of this Agreement will be
entitled, in addition to any other rights and remedies it may have, to
reimbursement for its expenses, including court and arbitration costs,
as well as reasonable attorneys' fees.
14.6 SUCCESSORS AND ASSIGNS. Neither party may assign its rights or
obligations under this Agreement without the prior written consent
of the other party, which will not be unreasonably withheld.
Notwithstanding the foregoing, either party may assign this
Agreement to an entity that acquires substantially all of the stock
or assets of a party to this Agreement; except 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 **
provided that ** and its affiliates, as set forth in EXHIBIT O
hereto (or any company formed as a result of a combination of such
companies) shall in no event be considered a ** solely for purposes
of this sentence. All terms and provisions of this Agreement will be
binding upon and inure to the benefit of the parties hereto and
their respective permitted transferees, successors and assigns.
14.7 FORCE MAJEURE. Neither party will 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, war (declared or undeclared), embargo, blockade,
legal prohibition, governmental action, riot, insurrection, damage,
destruction or any other similar cause beyond the control of such
party. If such event continues for more than 30 days, the other party
may terminate this Agreement without further obligation.
14.8 NOTICES. All notices, requests, consents and other communications to
Yahoo that are required or permitted under this Agreement will be
deemed to have been made immediately if made by facsimile or electronic
mail (confirmed by concurrent written
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
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notice sent via overnight courier for delivery by the next business
day) to Yahoo at 0000 Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxx, XX 00000,
Fax: ** Attention: Senior Vice President, Business Development
(e-mail: **), with a copy to its General Counsel (e-mail: **) or such
other address as Yahoo specifies to Match. All notices, requests,
consents and other communications to Match that are required or
permitted under this Agreement will be deemed to have been made
immediately if made by facsimile or electronic mail (confirmed by
concurrent written notice sent via overnight courier for delivery by
the next business day) to Match at 0000 X Xxxxxxxxx Xxxxxx Xxxx
Xxx., Xxxxx 000, Xxxxxxxxxx, Xxxxx 00000. Attn: President, Fax:
(000) 000-0000, with a copy to Ticketmaster Online-Citysearch, Inc.
at 000 X Xxxxxxxx Xxxx., Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000, Fax:
000-000-0000. Attention: General Counsel, or to such other address
as Match specifies to Yahoo. Notice by any other means will be
deemed to have been made when actually received by the party to
which notice is provided.
14.9 SEVERABILITY. If any provision of this Agreement is held to be invalid,
illegal or unenforceable for any reason, such invalidity, illegality or
unenforceability will not affect any other provisions of this
Agreement, and this Agreement will be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
14.10 HEADINGS. The section headings contained in this Agreement are included
for convenience only, and will not limit or otherwise affect the terms
of this Agreement.
14.11 COUNTERPARTS. This Agreement may be executed in two counterparts, both
of which taken together will constitute a single instrument. Execution
and delivery of this Agreement may be evidenced by facsimile
transmission.
14.12 AUTHORITY. Each of Yahoo anti Match 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.
[SIGNATURE PAGE FOLLOWS]
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
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This Distribution and Promotion Agreement has been executed by the duly
authorized representatives of the parties, effective as of the Effective Date.
YAHOO! INC. XXXXX.XXX, INC.
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------- ----------------------------------
Name: Xxxxx Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx
------------------------- --------------------------------
Title: Senior Vice President Title: President, Xxxxx.xxx
------------------------- --------------------------------
Date: November 20, 2000 Date: November 20, 2000
------------------------- --------------------------------
Address: 3420 Central Expressway Address: 0000 X. Xxxx. Xxxxxx Xxxx Xxx.
Xxxxx Xxxxx, XX 00000 Xxxxxxxxxx, XX 00000
----------------------- ------------------------------
Attn: Attn: Xxxxxxx X. Xxxxxxxx
Tel: ** Tel: **
Fax: Fax: **
Email: ** Email: **
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
21
