JOINT VENTURE AGREEMENT
JOINT VENTURE AGREEMENT, dated as of November 1, 1996, by and
between SB Holdings (Europe) Ltd. ("SOFTBANK"), a company organized under
the laws of the United Kingdom, and Yahoo! Inc., a California corporation
("Yahoo").
WHEREAS, Yahoo offers in the United States and certain other
geographic areas certain on-line navigational services on the World Wide
Web, including, without limitation, the Yahoo! Internet Guide.
WHEREAS, SOFTBANK through its affiliates Ziff-Davis UK, Ltd.,
Ziff-Davis France, SA and Ziff-Davis Verlag, GmbH (the "ZD Affiliates") is
a leading computer publisher in the United Kingdom, France and Germany;
WHEREAS, an affiliate of SOFTBANK indirectly owns a minority
interest in Yahoo; and
WHEREAS, SOFTBANK and Yahoo, directly or through wholly owned
affiliates, wish to jointly form joint venture companies in Germany, the
United Kingdom, and France (each a Company, collectively, the "Companies"),
to establish and manage versions of the Yahoo Internet Guide for the United
Kingdom, France and Germany (the "Territories"), develop related on-line
navigational services, and conduct other related businesses;
NOW, THEREFORE, the parties hereby agree as follows:
1. OBJECTIVES OF THE COMPANIES
The objectives of the Companies shall be to engage in the
businesses set forth below:
(i) establishment and management in the Territories of localized
versions of the Yahoo Internet Guide to be branded with the Yahoo!
name such as Yahoo! UK, Yahoo! France, and Yahoo! Germany (the
"Localized Guides"), all as set forth in the Business Plan attached as
Exhibit A (the "Business Plan");
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(ii) development and commercialization of related on-line
navigational services and other Yahoo branded products within the
Territories including off line products and publications (other than
as specified in 1(v) below) as described in the Business Plan;
(iii) related sale of on-line advertisement space through its
own efforts or through one or more third party sales representatives;
(iv) addition of specific informational content to the Localized
Guide in each of the Territories;
(v) [XXXX]
(vi) [XXXX]; and
(vii) other businesses relating to the foregoing as agreed upon
by the parties from time to time.
2. SALE AND PURCHASE OF SHARES; OWNERSHIP OF THE COMPANY.
(a) Prior to this date, Yahoo has organized the Companies in the
Territories and has invested, or shall invest (including amounts counted as
surplus capital), the aggregate amount of $1,400,000 in the Companies.
Subject to the terms and conditions hereof and pursuant to such
subscription agreements as local law may require, the Companies shall
issue, and Yahoo (to the extent it has not already fully subscribed) and
SOFTBANK shall subscribe to shares (or other ownership interests as local
law may dictate) of each of the Companies so that after such subscriptions
SOFTBANK shall own a 30% interest in each such Company and Yahoo shall own
a 70% interest. The total to be contributed by SOFTBANK for its shares in
all the Companies shall total $600,000 (including surplus capital). The
Companies are also reimbursing each of the parties for activities taken
prior to this date on behalf of the Companies and assuming any obligations
incurred on behalf of the Companies.
(b) Each party shall make such additional contributions to the
capital of the Companies (above the amounts in (a)) as the Board of
Directors shall determine in good faith are required to carry out the
Business Plan, up to an aggregate
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additional contribution by Yahoo of $1,400,000 (for a total aggregate
contribution of $2,800,000), and by SOFTBANK, of an additional $600,000
(for a total aggregate contribution by SOFTBANK of $1,200,000.
(c) Yahoo may transfer up to 10% of its shares in the Companies to a
third party subject to SOFTBANK's consent to that party, which should not
be unreasonably withheld. If the parties shall mutually determine that
such third party shall hold more than 10% of the Companies, that third
party's shares above 10% shall be transferred pro rata from Yahoo and
SOFTBANK or additional shares may be issued by such third party so that
Yahoo's and SOFTBANK's interests are diluted pro rata.
3. REPRESENTATIONS AND WARRANTIES OF SOFTBANK
SOFTBANK hereby represents and warrants to Yahoo as follows:
(a) SOFTBANK has been duly incorporated, and is a validly
existing corporation under the laws of the UK and has full power and
authority to enter into and perform this Agreement.
(b) This Agreement has been duly authorized, executed and
delivered by SOFTBANK and constitutes a valid and binding agreement of
SOFTBANK, enforceable against SOFTBANK in accordance with its terms.
(c) No consent, approval or authorization of or declaration or
filing with any governmental authority or other person or entity on the
part of SOFTBANK is required in connection with the execution or delivery
of this Agreement or the consummation of the transactions contemplated
hereby.
4. REPRESENTATIONS AND WARRANTIES OF YAHOO
Yahoo represents and warrants to SOFTBANK as follows:
(a) Yahoo has been duly incorporated and is a validly existing
corporation in good standing under the laws of the State of California, and
has full power and authority to enter into and perform this Agreement.
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(b) This Agreement has been duly authorized, executed and
delivered by Yahoo and constitutes a valid and binding agreement of Yahoo,
enforceable against Yahoo in accordance with its terms.
(c) No consent, approval or authorization of or declaration or
filing with any governmental authority or other person or entity on the
part of Yahoo is required in connection with the execution or delivery of
this Agreement or the consummation of the transactions contemplated hereby.
5. LICENSE/SERVICES AGREEMENTS
(a) Concurrently with the execution of this Agreement, Yahoo
shall enter into license agreements, in the forms attached hereto in
Exhibit B (the "License Agreements"), with each of the Companies.
(b) Concurrently with the execution of this Agreement, the ZD
Affiliates are entering into Services Agreements in the forms attached in
Exhibit C with each of the Companies (the "Services Agreements").
6. BOARD OF DIRECTORS; STATUTORY AUDITORS
(a) Subject to permissible corporate law in each of the
Territories, the Companies shall be managed by a single Board of Directors
with five members. SOFTBANK shall designate two Directors and Yahoo shall
designate three Directors. To the extent local law does not permit the
Companies to have a single Board of Directors, Yahoo and SOFTBANK shall
create a Management Committee of five members which shall act in the same
way as the single Board of Directors would act and each party shall cause
the members of each Board of Directors or other similar management group in
each of the Territories to act in accordance with the determination of that
Management Committee. If such a Management Committee is set up, any
reference to the Board of Directors or to Directors shall be deemed a
reference to the Management Committee and to the members of that Committee.
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(b) To the extent required by local law, each Company shall have
one Statutory Auditor, which shall be designated by Yahoo.
(c) The Companies shall have a Managing Director, who shall also
be the President (or similar officer) of each Company. The President and
Managing Director shall be a nominee of Yahoo, subject to Softbank's
approval, not unreasonably withheld.
(d) In case of a vacancy in the office of Director, Statutory
Auditor or Managing Director during the term of office for whatever reason,
the vacancy shall be filled by the party that nominated the Director,
Statutory Auditor or Managing Director whose office became vacant, but
still subject in the case of Managing Director to SOFTBANK's approval, not
unreasonably withheld.
(e) At any annual or special meeting of shareholders or any
meeting of the Board of Directors of any Company called for such purpose,
each party shall vote or cause to be voted all shares owned by it for the
election of nominees designated as Directors, Statutory Auditor or Managing
Director in accordance with this Section 6 and otherwise as may be
necessary to implement the provisions of this Agreement.
(f) No change shall be made in the number and/or allocation of
Directors, Statutory Auditor or Managing Director as stated in this Section
6 or in the Articles of Incorporation (or similar corporate document) of
any Company; provided that if the parties' respective shareholdings change
in a material way, the parties shall adjust the number and allocation of
Directors if and to the extent appropriate so that their respective
representation on the Board and in that Company is generally proportionate
to their respective shareholdings.
7. MANAGEMENT OF THE COMPANIES
(a) The Board of Directors shall be responsible for establishing
the overall policy and overall operating policies with respect to the
business affairs of the Companies.
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(b) Except as otherwise required by mandatory provisions of law
and as otherwise provided herein, resolutions of the Board of Directors
shall be adopted only by the affirmative vote of a majority of the
Directors present at a meeting duly called at which a quorum is present. A
majority of the Board of Directors shall constitute a quorum for the
transaction of business provided at least one Director designated by
SOFTBANK is present. Board meetings shall be held in accordance with
applicable local law provided that the Board of Directors shall meet no
less frequently than once in each calendar month. Any Director may attend
a Board meeting by conference telephone.
(c) Notwithstanding the general provisions set forth above, in
addition to any special approval requirements under the Articles of
Incorporation (or similar corporate document) or under local law, each of
the following corporate actions may be taken by a Company only (x) in the
case of any action that is permitted by law or under the Articles of
Incorporation to be taken by the Board of Directors alone, only upon
authorization by affirmative vote of at least one SOFTBANK director and at
least one Yahoo director and (y) in the case of actions required by law or
the Articles of Incorporation to be approved by the Company's shareholders,
only upon authorization by affirmative vote of both Yahoo and SOFTBANK as
shareholders:
(i) any merger or consolidation, whether or not the Company
is the surviving corporation; any sale, lease, exchange or other
disposition of all or substantially all of the assets of the Company;
any acquisition of all or substantially all of the capital stock or
assets of any other entity; or the liquidation or voluntary
dissolution of the Company;
(ii) any sale, lease, exchange or other disposition of
substantial assets (except in the ordinary course of business) of the
Company;
(iii) any capital expenditure of $100,000 or more, except as
may be specified in the Business Plan;
(iv) the raising of additional equity capital or the
issuance or sale of any debt or equity securities (including any
shareholder loan or guaranty) above the
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amounts specified in Section 2(b) above, and the terms thereof,
whether or not in connection with a call for additional capital
pursuant to Section 8 hereof;
(v) any declaration or payment of any dividend or other
distribution, directly or indirectly, on account of any shares of
capital stock of the Company, or any redemption, retirement, purchase
or other acquisition, directly or indirectly, by the Company of any
such shares (or of any warrants, rights or options to acquire any such
shares);
(vi) the incurrence or guarantee (directly or indirectly) by
the Company with respect to any indebtedness for borrowed money in
excess of $50,000;
(vii) any amendment, alteration or repeal of any provision of
the Articles of Incorporation (or similar corporate document) of the
Company; or
(viii) engagement in any business other than as set forth in
Section 1 hereof and activities incidental thereto, either directly or
through any corporation or other entity in which the Company has,
directly or indirectly, an equity interest;
(ix) approval of an annual business plan and operating
budget for the Company (which shall be made no later than thirty (30)
days prior to the commencement of each fiscal year of the Company),
and any determination to deviate in any material respect from such
business plan or budget as so approved;
(x) except as may be set forth in the Business Plan, the
authorization of execution of any contract or agreement (i) having a
period of performance greater than one year, (ii) involving aggregate
payments or consideration in excess of $100,000, (iii) involving any
license of trademarks, patents, copyrights or other intellectual
property rights of the Company, and (iv) between the Company and any
officer, shareholder or Director of the Company (or their respective
affiliates), and any waiver or variance of any contract described in
(i)-(iv) above; or
[X] Confidential Treatment Requested
(xi) except as may be set forth in the Business Plan,
compensation for all officers, Directors and Statutory Auditors of the
Company.
To the extent permitted by applicable law, the foregoing approval
requirements shall at all times also be set forth in the Articles of
Incorporation of the Company, unless amended as set forth.
8. ADDITIONAL CAPITAL
Subject to Section 7(c) hereof, the Board of each Company may, by
written notice to the parties, call for the parties to subscribe for
additional shares of capital stock of the Company or to make loan
guarantees or loans to the Company in proportion to their respective
holdings of common stock above the amounts specified in Section 2(b). If
one party shall decline to subscribe to additional shares above the amounts
specified in Section 2(b), and the other party shall subscribe to
additional shares, the subscribing party's total percentage of shares shall
increase and the non-subscribing party's ownership interest may thereby be
diluted.
9. DISPOSITION OF COMMON STOCK
Neither party shall directly or indirectly sell, assign, transfer
or otherwise dispose of, or pledge or otherwise encumber, any shares of
common stock of any Company without the prior consent of the other party
except to an affiliate of that party provided, however, the selling party
shall continue to be liable for all of its obligations.
10. ACCOUNTING; ACCESS TO INFORMATION
(a) The fiscal year of each Company shall be the calendar year.
(b) Each Company shall maintain its accounts and prepare its
financial statements (including, without limitation, a balance sheet,
profit and loss statement and statement of cash flows) in accordance with
generally accepted accounting principles applicable in the country of
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incorporation, and shall cause its annual financial statements to be
audited by an internationally recognized independent auditing firm
reasonably acceptable to each party, and such financial statements and the
auditors' opinion to be delivered to each party no later than sixty (60)
days following the end of each fiscal year. Each Company also shall
deliver to each party unaudited monthly and quarterly financial statements
within thirty days following the end of each month or fiscal quarter, as
the case may be, certified (in the case of quarterly financial statements)
by the chief accounting officer of the Company. All financial statements
shall be accurately and completely translated into English prior to
delivery to SOFTBANK or Yahoo, and shall be accompanied by a reasonably
detailed schedule that sets forth the differences between the generally
accepted accounting principles applied in that Company's country of
incorporation and U.S. generally accepted accounting principles as applied
to such financial statements.
(c) Each party shall, during all business hours and at all other
times as reasonable, have access to the books and records of each Company
and to the legal, tax and auditing personnel of that Company, internal and
external; provided, however, that the cost and expense necessary for such
inspection shall be borne by the party making the inspection.
11. TERM OF THE AGREEMENT
(a) Subject to Section 12, this Agreement shall remain in effect
perpetually, provided that, if for the calendar year ending [XXXX]. For
purposes of this paragraph the "primary business" of the Companies shall
mean the business of providing the Localized Guides and selling ad space in
connection with or obtaining other revenues from those Guides; all other
products and services of the Companies shall be excluded.
(b) [XXXX].
12. TERMINATION OF THE AGREEMENT
(a) If either party fails in any material respect to perform or
fulfill in the time and manner herein provided
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any obligation or condition herein required to be performed or fulfilled by
such party, and if such default shall continue for sixty (60) days after
written notice thereof from the other party, then the other party shall
have the right to terminate this Agreement by written notice of termination
to the defaulting party at any time after such sixty (60) days. Either
party may also terminate this Agreement immediately by giving a written
notice to the other party in the event such other party shall be dissolved
or liquidated or declared insolvent or bankrupt.
(b) Upon termination of this Agreement [XXXX].
(c) Termination of this Agreement for any reason shall not
release either party from any liability which at the time of termination
has already accrued to the other party or which thereafter may accrue in
respect of any act or omission prior to such termination.
13. CONFIDENTIALITY
Each party shall hold and shall cause its respective
representatives to hold in confidence all confidential information made
available to it or its representatives by the other party, directly or
through any Company, and shall not pass such information on, wholly or
partly, to third parties without the written consent of the other party,
unless such information (i) becomes generally available to the public other
than as a result of a disclosure by such party or its representatives, (ii)
becomes available to such party from other sources not known by such party
to be bound by a confidentiality obligation, or (iii) is independently
acquired by such party as a result of work carried out by any employee or
representative of such party to whom no disclosure of such information has
been made.
14. OTHER VENTURES
(a) [XXXX].
(b) Yahoo hereby agrees to discuss in good faith with SOFTBANK
and allow SOFTBANK to make a first offer on any plans to establish [XXXX];
provided that the foregoing
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shall not obligate either party to enter into any such arrangement.
15. GOVERNING LAW
This Agreement shall be governed by and construed in accordance
with the laws of California applicable to agreements made and to be
performed therein.
16. DISPUTE RESOLUTION
All disputes between the parties arising directly or indirectly
out of this Agreement shall be settled by the parties amicably through
their good faith discussions. In the event that any such dispute cannot be
resolved thereby, such dispute shall be finally settled by arbitration in
accordance with the rules then in effect of the American Arbitration
Association by three arbitrators appointed in accordance with such rules.
Any such arbitration shall be held in New York, New York. The arbitration
award shall be final and binding upon the parties, and judgment on such
award may be entered in any court having jurisdiction thereof.
17. MISCELLANEOUS
(a) This Agreement may be amended only by a written instrument
signed by both parties.
(b) This Agreement may not be assigned by either party hereto
except with the written consent of the other party; provided, however, that
this Agreement may be assigned to (x) an affiliate corporation or (y) any
corporation which shall succeed to the business of a party by merger,
consolidation, or the transfer of all or substantially all of the assets of
such party and which shall expressly assume the obligations of such party
hereunder.
(c) Any and all notices, requests, demands and other
communications required or otherwise contemplated to be made under this
Agreement shall be in writing and in English and shall be deemed to have
been duly given (a) if delivered personally, when received, (b) if
transmitted by facsimile, upon receipt of a transmittal confirmation, (c)
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if sent by registered airmail, return receipt requested, postage prepaid,
on the sixth business day following the date of deposit in the mail or (d)
if by international courier service, on the second business day following
the date of deposit with such courier service, or such earlier delivery
date as may be confirmed to the sender by such courier service. All such
notices, requests, demands and other communications shall be addressed as
follows:
(i) If to SOFTBANK:
SB Holdings (Europe) Ltd.
c/o Ziff-Davis Verlag Gmbh
Riesstrasse 25,
80992 Munich 50
Germany
Attention: J.B. Holston
Telephone: (4989) 1431-2401
Facsimile: (4989) 1431-2400
with a copy to:
Ziff-Davis Publishing Company
One Park Avenue
NY, New York 10016
Attention: Legal Department
Telephone: (212) 503-3575
Facsimile: (212) 503-3581
(ii) If to the Company:
Yahoo! Inc.
635 Vaqueros Ave.
Sunnyvale, California 94086
Attention: Mr. Timothy Koogle
President
Telephone: (408) 328-3300
Facsimile: (408) 328-3301
[X] Confidential Treatment Requested
with a copy to:
Venture Law Group
A Professional Corporation
2800 Sand Hill Road
Menlo Park, California 94025
Attention: James L. Brock, Esq.
Telephone: (415) 854-4488
Facsimile: (415) 854-1121
or in each case to such other address or facsimile number as the party may
have furnished to the other party in writing.
(d) In the event of the invalidity of any part or provision of
this Agreement, such invalidity shall not affect the enforceability of any
other part or provision of this Agreement.
(e) No waiver by any party of any default in the performance of
or compliance with any provision herein shall be deemed to be a waiver of
the performance and compliance as to any other provision, or as to such
provision in the future; nor shall any delay or omission of any party to
exercise any right hereunder in any manner impair the exercise of any such
right accruing to it thereafter. No remedy expressly granted herein to any
party shall be deemed to exclude any other remedy which would otherwise be
available.
(f) This Agreement constitutes the entire agreement among the
parties with respect to the subject matter hereof and shall supersede all
prior understandings and agreements between the parties with respect to
such subject matter. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(g) Nothing herein express or implied, is intended to or shall
be construed to confer upon or give to any person, firm, corporation or
legal entity, other than the parties hereto and their affiliates, any
interests, rights, remedies or other benefits with respect to or in
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connection with any agreement or provision contained herein or contemplated
hereby.
IN WITNESS WHEREOF, the parties hereto have duly signed this
Agreement as of the day and year first above written.
SB HOLDINGS (EUROPE) LTD.
By: /S/ DAVID CRAVER
-----------------------------
Name: David Craver
Title: VP, IMG
YAHOO! INC.
By: /S/ TIMOTHY KOOGLE
-----------------------------
Name: Timothy Koogle
Title: President
[X] Confidential Treatment Requested
TYPE: EX-10.31
SEQUENCE: 5
DESCRIPTION: EXHIBIT 10.31
EXHIBIT 10.31
YAHOO! U.K. LICENSE AGREEMENT
This YAHOO! U.K. LICENSE AGREEMENT (the "AGREEMENT") is entered into as
of this 1st day of November, 1996 (the "EFFECTIVE DATE") by and between:
YAHOO! INC., a California corporation ("YAHOO") with a principal office
at 3400 Central Expressway, Santa Clara, CA 95051; and
YAHOO! U.K., a corporation organized under the laws of the United
Kingdom ("YAUK"), with a principal office at Cottons Centre, Hayes Lane,
London SE1 2QT, U.K.; with reference to the following:
RECITALS
The following provisions form the basis for, and are hereby made a part
of, this Agreement:
A. Yahoo owns, operates and distributes a leading index and directory
of Internet resources, including a hierarchical index, information indexing
and retrieval software; and
B. YAUK has been organized with 70% owned by a subsidiary of Yahoo and
30% owned by SB Holdings (Europe) Ltd., pursuant to a joint venture agreement
entered into concurrently herewith (the "JOINT VENTURE AGREEMENT"), in order
to operate in the United Kingdom a localized version of the Yahoo Guide, to
develop related on-line navigational services in the United Kingdom, and to
conduct certain other businesses relating to such activities.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and conditions
set forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby
agree as follows:
ARTICLE I: DEFINITIONS; RULES OF CONSTRUCTION
1.1 DEFINITIONS. For purposes of this Agreement, in addition to the
capitalized terms defined elsewhere in this Agreement, the following terms
shall have the meanings ascribed to them below:
"AFFILIATE" shall mean any corporation, limited liability company,
partnership or other entity (collectively, an "ENTITY" ): (1) that is
controlled by or controls a party (collectively, a "CONTROLLED ENTITY" ); or
(2) that is controlled by or controls any such Controlled Entity, in each
instance of clause (1) or (2) for so long as such control continues. For
purposes of this definition, "control" shall mean the possession, directly or
indirectly, of power to direct or cause the direction of the management or
policies (whether through ownership of securities or
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partnership or other ownership interests, by contract or otherwise). Without
limiting the foregoing, joint control of an Entity with one or more other
persons or Entities shall be deemed to constitute control for purposes hereof.
"COMPETITIVE NAVIGATIONAL TOOLS" shall mean any third party Internet
directory or Internet search tool that provides a comprehensive hierarchical
directory or text-based index of WWW sites, including, without limitation,
those Competitive Navigational Tools owned, operated, or offered by the
companies listed in EXHIBIT C attached hereto. No service or tool shall be
deemed to be a "Competitive Navigational Tool" solely because it is offered
by a third party that also offers services or tools that are "Competitive
Navigational Tools."
"COMPONENTS" shall mean information, materials, products, features,
services, content, computer software, designs, artistic renderings, drawings,
sketches, characters, layouts, and the digital implementations thereof,
PROVIDED, HOWEVER, that "Components" shall not include Local Content.
"CONFIDENTIAL INFORMATION" shall mean any information relating to or
disclosed in the course of this Agreement, which is or should be reasonably
understood to be confidential or proprietary to the disclosing party,
including, but not limited to know-how, trade secrets, log data, technical
processes and formulas, source codes, product designs, sales, cost and other
unpublished financial information, product and business plans, projections,
and marketing data. "Confidential Information" shall not include information
which: (i) is known to the recipient on the Effective Date directly or
indirectly from a source other than one having an obligation of
confidentiality to the providing party; (ii) hereafter becomes known
(independently of disclosure by the providing party) to the recipient
directly or indirectly from a source other than one having an obligation of
confidentiality to the providing party; (iii) becomes publicly known or
otherwise ceases to be secret or confidential, except through a breach of
this Agreement by the recipient; or (iv) is or was independently developed by
the recipient without use of or reference to the providing party's
confidential information, as shown by evidence in the recipient's possession.
"DERIVATIVE WORK" shall mean all "derivative works" and "compilations",
within the meaning of such terms as defined in the U.S. Copyright Act (17
U.S.C. Section 101 et seq.).
"INTELLECTUAL PROPERTY RIGHTS" shall mean trade secrets, patents,
copyrights, trademarks, know-how, moral rights, and similar rights of any
type under the laws of any governmental authority, domestic or foreign
including all applications and registrations relating to any of the foregoing.
"JOINT ENHANCEMENTS" shall mean any enhancements, added functionalities,
additions, extensions or improvements to Yahoo U.K. that are created or
developed jointly by YAUK, on the one hand, and Yahoo, its Affiliates (other
than YAUK Yahoo! France, SARL or Yahoo! Verlag) or their agents, on the other
hand, including any Components which are jointly contributed to Yahoo U.K.
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"LAUNCH DATE" shall mean the first date on which Yahoo U.K. is made
generally available to the public in the Territory.
"LOCAL CONTENT" shall mean content, including WWW site listings, added
to Yahoo U.K. by YAUK and that is: (i) specific to the market of the
Territory; and (ii) originates in or arises from activities in the Territory.
"LOCALIZED SITE" shall mean YAUK's WWW site(s) in the Territory through
which the Yahoo Properties are made available to Yahoo U.K. Users.
"LOG DATA" shall mean all data generated by an Internet server that relates
to file requests, user identification, session times and similar available
information, including information set forth by EXHIBIT E.
"TERRITORY" shall mean the United Kingdom, exclusive of its territories
and protectorates.
"WWW" shall the World Wide Web, a system for accessing and viewing
text, graphics, sound and other media via the Internet.
"YAHOO BRAND FEATURES" shall mean Yahoo trademarks, trade names,
service marks, service names, distinct elements of the Yahoo Service Look and
Feel and all other Components specifically associated with the "Yahoo!"
brand, as to which Yahoo has established trademark, trade name or similar
protectable rights, including the name "Yahoo!" and any modifications or
improvements to the foregoing that may be created by Yahoo from time to time.
"YAHOO BRAND GUIDELINES" shall mean the guidelines for use of the Yahoo
Brand Features, as specifically set forth in EXHIBIT B attached hereto, as
such may be reasonably amended from time to time by Yahoo.
"YAHOO PRODUCTS" shall mean print publications and digital media
products, including CD ROMs, and other marketing tools derived from or
incorporating Yahoo Properties that are localized for the Territory by YAUK.
"YAHOO PROPERTIES" shall mean collectively: (i) the Yahoo Service,
including both the Yahoo Service Look and Feel and the Yahoo Brand Features;
and (ii) Yahoo U.K.
"YAHOO SERVICE" shall mean, collectively, the Internet-based
hierarchical information index and retrieval product, including the related
search engine, that Yahoo makes generally available now or in the future
through the WWW, and currently located at http://www.yahoo.com, as the same
may be modified, upgraded, updated or enhanced during the Term of this
Agreement; PROVIDED, HOWEVER, that the Yahoo Service shall not include any
content, software, or any WWW-wide text-based search tool licensed,
incorporated, or otherwise authorized for use by Yahoo from a third party
(UNLESS Yahoo has the right to sublicense the same to YAUK hereunder which
Yahoo shall use reasonable efforts to obtain).
[X] CONFIDENTIAL TREATMENT REQUESTED
"YAHOO SERVICE LOOK AND FEEL" shall mean the artistic renderings,
drawings, animations, sketches, characters, layouts and designs, and digital
implementations thereof which are embodied within the Yahoo Service as to
which Yahoo has established protectable rights.
"YAHOO SOFTWARE" shall mean all computer programs, in object code form,
and related know how, that are owned or operated by Yahoo and required for
the operation, modification, maintenance and distribution (or permitted
Internet access to) the Yahoo Service, including the computer software
programs described in EXHIBIT A attached hereto; provided that the "Yahoo
Software" does not include third party software or materials that Yahoo does
not have the right to sublicense to YAUK without cost.
"YAHOO SYSTEM" shall mean, collectively, the Yahoo Service, the Yahoo
Software, the Yahoo Brand Features, and any related documentation as Yahoo
may make available to third parties from time to time.
"YAHOO U.K." shall mean versions of the Yahoo Service that are
customized and localized specifically for all or any portion of the market of
the Territory in any and all languages or dialects specifically relevant to
the Territory.
"YAHOO U.K. DERIVATIVE WORKS" shall mean Derivative Works, created from
the Yahoo Properties including: (i) any customizations necessary for the
customer market in the Territory, created by YAUK from Yahoo Properties for
use in Yahoo U.K.; and (ii) new properties, including regional directories
and localized directories, for example a Yahoo.London, that are directed to
the Territory or that are necessary to build Yahoo U.K. in the Territory;
PROVIDED, HOWEVER, that YAUK shall obtain prior approval from Yahoo for any
such new properties that have a scope intended to extend beyond the market of
the Territory.
"YAHOO U.K. SITE" shall mean one or more servers on which, collectively,
Yahoo U.K. and the Localized Site will be made available pursuant to this
Agreement.
"YAHOO U.K. USERS" shall mean Internet-users to whom YAUK provides
access to Yahoo U.K.
1.2 RULES OF CONSTRUCTION. As used in this Agreement, neutral pronouns and
any variations thereof shall be deemed to include the feminine and masculine
and all terms used in the singular shall be deemed to include the plural, and
vice versa, as the context may require. The words "hereof," "herein" and
"hereunder" and other words of similar import refer to this Agreement as a
whole, including any exhibits hereto, as the same may from time to time be
amended or supplemented and not to any subdivision contained in this
Agreement. The word "including" when used herein is not intended to be
exclusive and means "including, without limitation." References herein to
section, subsection, attachment or exhibit shall refer to the appropriate
section, subsection or exhibit in or to this Agreement. The descriptive
headings of this Agreement are inserted for convenience of reference only and
do not constitute a part of and shall not be utilized in interpreting this
Agreement. This Agreement has been negotiated by the parties hereto and
their respective counsel and shall be fairly interpreted in accordance
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with its terms and without any rules of construction relating to which party
drafted the Agreement being applied in favor of or against either party.
1.3 EXHIBITS. In the event that any Exhibits referred to in this Agreement
are not attached at the time of execution and delivery of this Agreement, the
parties agree to determine in good faith upon the content of such Exhibits
within five (5) business days following the Effective Date.
ARTICLE 2: GRANT OF RIGHTS
2.1 LICENSE TO YAHOO SERVICE PRIOR TO YAHOO U.K. LAUNCH. Subject to all of
the terms and conditions of this Agreement, Yahoo hereby grants to YAUK, from
the Effective Date of this Agreement until the Launch Date, a non-exclusive
(subject to the restrictive covenant set forth in Section 2.5 hereto),
royalty-bearing, right and license to:
(i) use, display, perform, transmit, market, promote, and permit Yahoo
U.K. Users to use, the Yahoo Service in electronic, on-line form and in the
manner described in this Agreement, via the Internet in the Territory; and
(ii) reproduce the Yahoo Service in electronic, on-line form for
internal back-up and archival purposes;
(iii) use the Yahoo Software solely for modifying the Yahoo Service
in accordance with this Agreement, and to reproduce the Yahoo Service solely
for YAUK's internal use in furtherance of such modifying.
2.2 LICENSE TO YAHOO SYSTEM AND YAHOO U.K. Subject to all of the terms and
conditions of this Agreement, Yahoo hereby grants to YAUK, during the Term of
this Agreement, a non-exclusive (subject to the restrictive covenant set
forth in Section 2.5 hereto), royalty-bearing, right and license to:
(i) use, modify and customize the Yahoo Software and Yahoo Service
solely for the purpose of developing, creating, operating, maintaining,
marketing, promoting, distributing, and otherwise commercially exploiting
Yahoo U.K.;
(ii) reproduce copies of the Yahoo Software solely for YAUK's internal
use in creating Yahoo U.K. Derivative Works;
(iii) use, reproduce, display, perform, transmit, market, promote,
and permit Yahoo U.K. Users to use, Yahoo U.K. in on-line form and in the
manner described in this Agreement, via the Internet in the Territory;
(iv) use and reproduce any and Yahoo Software (in object code form
only) associated with the Yahoo Properties solely to facilitate the
exploitation of the Yahoo Properties as anticipated and described in this
Agreement;
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(v) create Yahoo U.K. Derivative Works, solely for use, incorporation,
and integration in Yahoo U.K. and solely as necessary for localizing Yahoo
U.K. for the consumer market in the Territory, subject to the terms and
limitations set forth in Section 2.4 of this Agreement; and
(vi) use, distribute, reproduce, transmit and display the Yahoo Brand
Features in connection with the exercise of YAUK's rights to Yahoo U.K.;
PROVIDED, HOWEVER, that Yahoo U.K. Users' right to access and use the Yahoo
Properties shall be subject to such customary limitations and restrictions on
use and reproduction as Yahoo may impose with respect to the Yahoo
Properties.
2.3 [XXXX].
2.4 NO OTHER RIGHTS. Except as expressly provided in this Agreement, YAUK
shall: (i) only distribute or make available Yahoo U.K. in its entirety as a
complete work; (ii) subject to the provisions of Section 2.3, not distribute
or make available the Yahoo Services or Yahoo U.K. other than in on-line
electronic form; and (iii) not remove any copyright, trademark, or other
proprietary rights notices from any of the Yahoo Properties or Yahoo
Products. No rights or licenses are granted by Yahoo to YAUK except for
those expressly granted in Sections 2.1, 2.2, and 2.3 hereto.
2.5 RESTRICTIVE COVENANT. During the Term of this Agreement, Yahoo shall
not: (i) either directly or indirectly, grant any right or license, whether
exclusive or non-exclusive, to any person or entity to use, display,
reproduce, modify, customize the Yahoo System for the purpose of developing,
creating, operating, maintaining, marketing, promoting, distributing, or
otherwise commercially exploiting a version of the Yahoo Service that is
customized or localized for the Territory; or (ii) modify and customize, the
Yahoo System for the purpose of developing, creating, operating, maintaining,
marketing, promoting, distributing, or otherwise commercially exploiting a
version of the Yahoo Service that is customized or localized for the
Territory. Nothing contained in this Agreement shall limit or in any way
restrict Yahoo's right to advertise or promote the Yahoo System or any
Derivative Works thereof outside of the Territory, or to advertise or promote
the Yahoo System in any media that originates outside of the Territory;
PROVIDED, HOWEVER, that such advertisements and promotions are not
specifically targeted to Yahoo U.K. or the market for Yahoo U.K. in the
Territory. The parties hereto further acknowledge and agree that nothing
herein shall prevent, restrict or otherwise limit the ability of any person
in the Territory from electronically accessing the Yahoo Service maintained
and operated by Yahoo, or its current or future licensees, in any
jurisdiction outside the Territory.
2.6 LICENSE GRANTED BY YAUK. Subject to all of the terms and conditions of
this Agreement, YAUK hereby grants Yahoo a non-exclusive, royalty-free,
perpetual, worldwide (EXCEPT for the Territory) license to use, reproduce,
display, perform, transmit, market, promote, and permit Yahoo Service users
to use, in any form or media, Local Content; PROVIDED, HOWEVER, that any use
of the Local Content by Yahoo in the countries identified in EXHIBIT F (the
"EXTENSION COUNTRIES") attached hereto shall be subject to prior approval by
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YAUK, which approval shall not be unreasonably withheld; and PROVIDED,
FURTHER, that for a period of six (6) months after the Effective Date of this
Agreement, Yahoo will neither: (i) market or promote the Local Content in
the Extension Countries; nor (ii) market or promote Derivative Works targeted
specifically to the Extension Countries and based on the Local Content, in
the Extension Countries. Subject to the foregoing license grant, YAUK retains
all right, title and interest in and to the Local Content.
ARTICLE 3: OBLIGATIONS OF THE PARTIES
3.1 YAHOO U.K. CONTENT. Yahoo U.K. shall, at a minimum, contain all
directories, including categories, subcategories, and URL's, contained within
the Yahoo Service, as such service or any portion thereof may be modified,
upgraded, updated or otherwise enhanced during the Term of this Agreement.
Promptly after the Effective Date, Yahoo shall provide to YAUK with Yahoo
Properties to the extent necessary to launch the Yahoo U.K. Site and for YAUK
to create Yahoo U.K. Derivative Works for incorporation into Yahoo U.K. In
the event that YAUK wants to post or incorporate any new service, content
(other than Local Content), or sponsorships on Yahoo U.K., YAUK shall obtain
Yahoo's prior written consent, which consent shall not be unreasonably
withheld.
3.2 LOCAL CONTENT. YAUK shall be solely responsible for collecting and
classifying Local Content.
3.3 RESTRICTIVE COVENANT. During the Term, YAUK agrees that it shall not:
(i) enter into a commercial arrangement or transaction with any person for
the customization or localization of a Competitive Navigational Tool for the
consumer market of the Territory and for use within the Territory; or (ii)
develop, commercialize, market or promote any Competitive Navigational Tool.
Without limiting the foregoing, YAUK shall not provide any on-line
advertising that contains a direct hypertext link to any Competitive
Navigational Tool; PROVIDED, HOWEVER, that nothing herein shall prohibit
Yahoo U.K. from including links contained in the Yahoo Service or such links
as may be reasonably agreed to by Yahoo.
3.4 MESSAGE BAR. Yahoo shall have the right, upon reasonable advance notice
to YAUK, to place non-advertising Components from Yahoo directed to the
global marketplace, on the home page of Yahoo U.K. for up to five (5)
consecutive days.(1)
3.5 ADVERTISING REVENUE. The parties hereto agree that all revenues and
income derived by YAUK in connection with advertising, marketing and
promotional information in Yahoo U.K., and distribution of the Yahoo Service
in the Territory pursuant to Section 2.1 hereto, shall accrue solely to
YAUK, subject to the calculation and payment of the Fees as set out in
EXHIBIT D attached hereto. YAUK shall be solely and exclusively responsible
for ensuring that all advertising, marketing and promotional information
conducted and provided by YAUK
----------------------
(1) By way of example, but not of limitation, in the event that
one of Yahoo's directors or officers desires to send a global message to all
users of Yahoo concerning introduction of a new Yahoo Property or news relating
to Yahoo or a Yahoo Property, then such message would appear in the message bar
as contemplated under this Agreement.
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complies with all local, federal, and other governmental laws and regulations
of the Territory that may be applicable thereto.
3.6 YAUK COVENANTS. In addition to the representations and warranties of
Section 6.1 hereto, YAUK covenants to use its best efforts to assure that:
(i) the Components and Local Content which YAUK includes in or
associates with Yahoo U.K. shall neither: (a) infringe on or violate any
copyright, patent, or any other proprietary right of any third party; nor (b)
violate any applicable law, regulation or third party right;
(ii) YAUK's performance of this Agreement shall comply in all material
respect with, and neither contravene, breach nor infringe, any laws or
regulations of the Territory; and
(iii) the Local Content provided by YAUK shall not contain any obscene
or defamatory materials, information, data or content, as such may be finally
determined by a court of competent jurisdiction.
3.7 YAHOO COVENANT. Yahoo covenants to use its commercially reasonable
efforts, in the event of a change by Yahoo of the platform or other
technology necessary for operating the Yahoo Service to a new platform or
technology (the "NEW TECHNOLOGY"), to: (i) provide YAUK with advance notice
of such technology change; (ii) assist YAUK in managing the transition by
YAUK from the current technology to the New Technology for Yahoo U.K.; and
(iii) assist YAUK in obtaining such New Technology. Yahoo will bear
reasonable start-up costs associated with establishing the New Technology for
Yahoo U.K. so that Yahoo U.K. operates at essentially the same or better
operating level (with respect to speed and responsiveness of Yahoo U.K. in
response to a user query) that Yahoo U.K. operated prior to converting to the
New Technology; PROVIDED, HOWEVER, that on-going costs, including license
fees therefor, associated with such New Technology shall be borne solely by
YAUK; PROVIDED, FURTHER, that Yahoo will use its reasonable efforts to pass
any savings or discounts it may be able to obtain from the third party
provider of the New Technology. Nothing herein shall be construed as an
obligation or representation by Yahoo that Yahoo will obtain or negotiate on
behalf of YAUK any license fees or other fees associated with the New
Technology.
ARTICLE 4: OWNERSHIP; LOG DATA
4.1 YAHOO OWNERSHIP. Yahoo and YAUK hereby agree that all right, title and
interest in and to the Yahoo System and the Yahoo U.K. Derivative Works shall
be owned exclusively by Yahoo without reservation, and that all such
worldwide ownership rights, title and interest in and to, all aspects of
Yahoo U.K. (including, but not limited to all Intellectual Property Rights
thereto) shall solely vest with, and be owned by, Yahoo. YAUK assigns any
interest it may be deemed to possess in any such Yahoo System or Yahoo U.K.
Derivative Works to Yahoo and will assist Yahoo in every reasonable way, at
Yahoo's expense, to obtain, secure, perfect, maintain, defend and enforce for
Yahoo's benefit all Intellectual Property Rights with respect to the Yahoo
System and Yahoo U.K. Derivative Works.
[X] CONFIDENTIAL TREATMENT REQUESTED
4.2 JOINT ENHANCEMENTS. Joint Enhancement shall be jointly owned by YAUK
and Yahoo. Any use of such Joint Enhancements other than for the Yahoo
Service or in connection with Yahoo U.K., as appropriate, by either party
shall require the approval of the other party, with approval shall not be
unreasonably withheld.
4.3 LOG DATA. YAUK will provide Yahoo with access to all Log Data containing
the categories set forth in EXHIBIT E from use of Yahoo U.K. via Yahoo's Log
Data Tool as described in EXHIBIT A. All Log Data shall be maintained as
Confidential Information by each of YAUK and Yahoo. Notwithstanding the
foregoing, no party shall be prohibited from providing Log Data to any third
party (on a confidential basis) for aggregation or analysis, or otherwise on
an aggregated basis to advertisers, potential advertisers and other third
parties in connection with the sale of advertising, or to third parties in
connection with market research and similar publishing. Yahoo shall own all
rights, title, and interest in and to any and all Log Data generated on any
Yahoo Service site in the Territory, including Yahoo U.K.; PROVIDED, HOWEVER,
Yahoo shall grant to YAUK a non-exclusive, royalty-free license to use and
reproduce such Log Data for internal, non-commercial purposes only to Log
Data generated at a Localized Site operated via the Internet.
ARTICLE 5: TRADEMARKS
5.1 ACKNOWLEDGMENT OF OWNERSHIP. YAUK acknowledges that: (i) as between
YAUK and Yahoo, Yahoo owns all right, title and interest in the Yahoo Brand
Features; and (ii) neither YAUK nor any other persons will acquire any
ownership interest in the Yahoo Brand Features or associated goodwill by
virtue of this Agreement or the use of the Yahoo Service or Yahoo U.K.
pursuant to this Agreement.
5.2 USAGE GUIDELINES. YAUK's use of the Yahoo Brand Features shall adhere to
the Yahoo Brand Guidelines set forth in EXHIBIT B attached hereto. In any
event, YAUK's use of the Yahoo Brand Features shall be at least of a quality
and standard reasonably commensurate with YAUK's use of its own trademarks.
Throughout the Term of this Agreement, Yahoo shall promptly provide YAUK with
all written details of, samples of and artwork for all Yahoo Brand Features
as required by YAUK for performing its rights and obligations under this
Agreement. YAUK shall supply Yahoo with specimens of each of all promotional
materials using the Yahoo Brand Features, all of which shall comply with the
Yahoo Brand Guidelines and other provisions of this Agreement. YAUK shall
remedy any violation of the Yahoo Brand Guidelines or of this Agreement as
soon as practicable following receipt of notice from Yahoo of such violation.
If any use of the Yahoo Brand Features by YAUK fails to satisfy such quality
standards and YAUK does not promptly cure such failure, Yahoo may terminate
YAUK's right to use such Yahoo Brand Features.
5.3 NO ADVERSE CLAIM. YAUK agrees that it will not at any time during or
after this Agreement assert any claim or interest in or do anything which may
adversely affect the validity or enforceability of any Yahoo Brand Features.
Unless otherwise agreed to between the parties, YAUK will not: (i) register,
seek to register, or cause to be registered any of the Yahoo Brand Features
without Yahoo's prior written consent; (ii) adopt or use Yahoo Brand
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Features or any confusingly similar word or symbol as part of YAUK's company
name, or on or in connection with any of YAUK's products or services; or
(iii) allow Yahoo Brand Features to be used by others, without Yahoo's prior
written consent.
ARTICLE 6: CONFIDENTIAL INFORMATION
6.1 PROTECTION OF CONFIDENTIAL INFORMATION. The parties recognize that, in
connection with the performance of this Agreement, each of them may disclose
to the other its Confidential Information. The party receiving any
Confidential Information agrees to maintain the confidential status of such
Confidential Information and not to use any such Confidential Information for
any purpose other than the purpose for which it was originally disclosed to
the receiving party, and not to disclose any of such Confidential Information
to any third party. Neither party shall disclose the other's Confidential
Information to its employees and agents except on a need-to-know basis.
6.2 PERMITTED DISCLOSURE. The parties acknowledge and agree that each may
disclose Confidential Information: (i) as required by law; (ii) to their
respective directors, officers, employees, attorneys, accountants and other
advisors, who are under an obligation of confidentiality, on a "need-to-know"
basis; (iii) to investors or joint venture partners, who are under an
obligation of confidentiality, on a "need-to-know" basis; or (iv) in
connection with disputes or litigation between the parties involving such
Confidential Information and each party shall endeavor to limit disclosure to
that purpose and to ensure maximum application of all appropriate judicial
safeguards (such as placing documents under seal). In the event a party is
required to disclose Confidential Information as required by law, such party
will, to the extent practicable, in advance of such disclosure, provide the
other party with prompt notice of such requirement. Such party also agrees,
to the extent legally permissible, to provide the other party, in advance of
any such disclosure, with copies of any information or documents such party
intends to disclose (and, if applicable, the text of the disclosure language
itself) and to cooperate with the other party to the extent the other party
may seek to limit such disclosure.
6.3 APPLICABILITY. The foregoing obligations of confidentiality shall apply
to directors, officers, employees and representatives of the parties and any
other person to whom the parties have delivered copies of, or permitted
access to, such Confidential Information in connection with the performance
of this Agreement, and each party shall advise each of the above of the
obligations set forth in this Article 6.
6.4 THIRD PARTY CONFIDENTIAL INFORMATION. Any Confidential Information of a
third party disclosed to either party shall be treated by YAUK or Yahoo, as
the case may be, in accordance with the terms under which such third party
Confidential Information was disclosed; PROVIDED, HOWEVER, that the party
disclosing such third party Confidential Information shall first notify the
other party that such information constitutes third party Confidential
Information and the terms applicable to such third party Confidential
Information and provided further that either party may decline, in its sole
discretion, to accept all or any portion of such third party Confidential
Information.
[X] CONFIDENTIAL TREATMENT REQUESTED
6.5 CONFIDENTIALITY OF AGREEMENT. Except as required by law or generally
accepted accounting principles, and except to assert its rights hereunder or
for disclosures to its own officers, directors, employees and professional
advisers on a need-to-know basis or in confidence to investors, investment
bankers, financial institutions or other lenders or acquirers, each party
hereto agrees that neither it nor its directors, officers, employees,
consultants or agents shall disclose the terms of this Agreement or specific
matters relating hereto without the prior consent of the other party, which
consent shall not be unreasonably withheld or delayed.
6.6 FUTURE BUSINESS ACTIVITIES. This Agreement shall not limit either
party's present and future business activities of any nature, including
business activities which could be competitive with the other party, outside
the scope of this Agreement, EXCEPT: (i) to the extent such activities would
involve a breach of the confidentiality restrictions contained in this
Section; or (ii) as otherwise expressly provided herein, including without
limitation, the restrictive covenants of Sections 2.5 and 3.3 hereto.
Nothing in this Agreement will be construed as a representation or agreement
that the recipient of Confidential Information will not develop or have
developed for it products, concepts, systems or techniques contemplated by or
embodied in such Confidential Information, provided that such recipient does
not violate any of its obligations under Section 6 of this Agreement in
connection with such development.
ARTICLE 7: LICENSE FEES AND PAYMENT
7.1 LICENSE FEES. YAUK shall pay to Yahoo, as full and complete remuneration
for the performance of all of Yahoo's obligations hereunder, the license fees
that are set forth in EXHIBIT D attached hereto (the "FEES"). All payments
under this Agreement shall be made by wire transfer to an account designated
by Yahoo, within thirty (30) days of the end of the quarter in which such
amounts are collected by YAUK, and shall be accompanied by a written report
signed by an authorized YAUK officer setting forth a description of
transactions given rise to payments in detail sufficient to support
calculations of the amounts paid, as well as such other similar information
as Yahoo may reasonably request.
7.2 CURRENCY. In this Agreement, all references to currency shall be
references to the lawful currency of the United States of America. Any and
all conversions shall be based on the exchange rate published in the Wall
Street Journal on the date each payment is due.
7.3 INTEREST. Any late payment of fees made by YAUK under this Agreement
shall bear interest at the annual aggregate rate of ten percent (10%) from
the date on which such payment was due.
7.4 TAXES. All Fees paid by YAUK to Yahoo hereunder shall be inclusive of
all excise and customs duties, costs, expenses, and other similar taxes
imposed by any governmental authority relating to the export of the Yahoo
Properties, and all withholding taxes that may be required by either the
Territory or the United States governments under the relevant tax laws and
treaties, all of which taxes shall be paid by Yahoo. All Fees paid by YAUK
to Yahoo hereunder shall be exclusive of all sales, goods and services, use
and other similar taxes imposed by any governmental authority concerning the
use of the Yahoo Properties in accordance with this Agreement, all of which
taxes shall be paid by Yahoo U.K.
[X] CONFIDENTIAL TREATMENT REQUESTED
7.5 AUDITING RIGHTS. To ensure compliance with the terms of this Agreement,
Yahoo shall have the right, at its own expense, to direct an independent
certified public accounting firm to inspect and audit all of the accounting
and sales books and records of YAUK which are relevant to Fees amounts
payable to Yahoo and the licenses granted by Yahoo hereunder; PROVIDED,
HOWEVER, that: (i) Yahoo provides fifteen (15) business days notice prior to
such audit; (ii) any such inspection and audit shall be conducted during
regular business hours in such a manner as not to interfere with normal
business activities; (iii) in no event shall audits be made hereunder more
frequently than twice (2) per calendar year; (iv) if any audit should
disclose an underpayment by YAUK, YAUK shall promptly pay such amount to
Yahoo; and (v) the cost of any audit which reveals an underpayment in excess
of five percent (5%) of the amount owing for the reporting period in question
shall be borne entirely by YAUK.
ARTICLE 8: REPRESENTATIONS AND WARRANTIES
8.1 MUTUAL REPRESENTATIONS AND WARRANTIES. Each party represents and
warrants to the other party that:
(i) such party has been duly incorporated and is validly existing under
the laws such party is incorporated;
(ii) such party has the full corporate right, power and authority to
enter into this Agreement and to perform the acts required of it hereunder;
(iii) the execution of this Agreement by such party, and the
performance by such party of its obligations and duties hereunder, do not and
will not violate any agreement to which such party is a party or by which it
is otherwise bound;
(iv) when executed and delivered by such party, this Agreement will
constitute the legal, valid and binding obligation of such party, enforceable
against such party in accordance with its terms; and
(v) such party acknowledges that the other party makes no
representations, warranties or agreements related to the subject matter
hereof that are not expressly provided for in this Agreement.
8.2 NO ADDITIONAL WARRANTIES. EXCEPT AS SET FORTH IN THIS AGREEMENT, NEITHER
PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS AND
SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES
ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
ARTICLE 9: LIMITATION OF LIABILITY; DISCLAIMER; INDEMNIFICATION
[X] CONFIDENTIAL TREATMENT REQUESTED
9.1 LIABILITY. EXCEPT AS PROVIDED IN SECTION 9.2, UNDER NO CIRCUMSTANCES
SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY PROVISION OF
THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED
PROFITS OR LOST BUSINESS.
9.2 YAHOO INDEMNITY. Subject to the limitations set forth below, Yahoo, at
its own expense, shall indemnify, defend (or at Yahoo's option and expense,
settle) and hold YAUK and its officers, directors, employees, agents,
distributors and licensees (the "YAUK INDEMNIFIED PARTY(IES)") harmless from
and against any judgment, losses, deficiencies, damages, liabilities, costs
and expenses (including, without limitation, reasonable attorneys' fees and
expenses), whether required to be paid to a third party or otherwise incurred
in connection with or arising from any claim, suit, action or proceeding
(collectively, a "CLAIM"), incurred or suffered by a YAUK Indemnified Party
to the extent the basis of such Claim is that: (i) the Yahoo Properties
provided by Yahoo to YAUK infringe any Intellectual Property Rights of a
third party; (ii) Yahoo does not have the right to license the Yahoo
Properties as set forth herein; or (iii) Yahoo has breached any of its
duties, representations or warranties under this Agreement; PROVIDED,
HOWEVER, that Yahoo shall have no obligation to the YAUK Indemnified Parties
pursuant to this Section unless: (x) YAUK gives Yahoo prompt written notice
of the Claim; and (y) in the case of third party claims, Yahoo is given the
right to control and direct the investigation, preparation, defense and
settlement of the Claim; and YAUK provides Yahoo with reasonable assistance
in the defense or settlement thereof. In connection with the defense of any
such Claim, each YAUK Indemnified Party may have its own counsel in
attendance at all public interactions and substantive negotiations at its own
cost and expense.
9.3 NO YAHOO LIABILITY. Notwithstanding the foregoing, Yahoo assumes no
liability for infringement claims arising from: (i) a combination of the
Yahoo Properties or any part thereof with other Components not provided by
Yahoo where such infringement would not have arisen from the use of the Yahoo
Properties or portion thereof absent such combination; or (ii) modification
of the Yahoo Properties or portion thereof by anyone other than Yahoo or on
its behalf where such infringement would not have occurred but for such
modifications.
9.4 YAHOO LIABILITY. If Yahoo receives notice of an alleged infringement
relating to the Yahoo Properties, Yahoo, at its option and expense, shall use
all reasonable efforts to: (i) obtain a license at no cost to YAUK
permitting continued use of the Yahoo Properties on terms and conditions
consistent with the rights granted to YAUK hereunder; (ii) modify the
infringing portion of the Yahoo Properties to perform its intended function
without infringing third party rights; or (iii) provide a substitute for such
infringing portion. If none of the foregoing options are reasonably
available to Yahoo, then upon written notice by Yahoo to YAUK, YAUK shall
thereupon take the necessary action to discontinue further distribution of
the Yahoo Properties to the extent that and only for so long as such use
would be infringing. Notwithstanding the foregoing, this Agreement shall
remain in full force and effect in
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accordance with the terms hereof with respect to all noninfringing portions
of the Yahoo Properties.
9.5 YAUK INDEMNIFICATION. Subject to the limitations set forth below, YAUK,
at its own expense, shall indemnify, defend (or at YAUK's option and expense,
settle) and hold Yahoo and any Yahoo Affiliates and their officers,
directors, employees, agents, distributors and licensees (the "YAHOO
INDEMNIFIED PARTY(IES)") harmless from and against any judgment, losses,
deficiencies, damages, liabilities, costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses), whether required to be
paid to a third party or otherwise incurred in connection with or arising
from any claim, suit, action or proceeding (collectively, a "CLAIM"),
incurred or suffered by a Yahoo Indemnified Party to the extent the basis of
such Claim is that: (i) Yahoo U.K. or any Local Content (to the extent
distinct from Yahoo Properties provided by Yahoo to YAUK) infringe any: (1)
patent; (2) copyright; (3) trade secret; or (4) trademark of a third party;
(ii) YAUK does not have the right to license the Local Content as set forth
herein; or (iii) YAUK has breached any of its duties, representations or
warranties under this Agreement; PROVIDED, HOWEVER, that YAUK shall have no
obligation to the Yahoo Indemnified Parties pursuant to this Section unless:
(x) Yahoo gives YAUK prompt written notice of the Claim; and (y) in the case
of third party claims, YAUK is given the right to control and direct the
investigation, preparation, defense and settlement of the Claim; and Yahoo
provides YAUK with reasonable assistance in the defense or settlement
thereof; and PROVIDED FURTHER that if any settlement results in any ongoing
liability to, or prejudices or detrimentally impacts Yahoo or any Yahoo
Affiliate, and such obligation, liability, prejudice or impact can reasonably
be expected to be material, then such settlement shall require Yahoo's
written consent, which consent shall not be unreasonably withheld or delayed.
In connection with the defense of any such Claim, each indemnified person
may have its own counsel in attendance at all public interactions and
substantive negotiations at its own cost and expense.
ARTICLE 10: TERM
10.1 TERM. Unless earlier terminated as provided herein, or unless otherwise
provided in the Joint Venture Agreement, this Agreement shall be effective
from the Effective Date until the sooner of: (i) the parties hereto mutually
agree to terminate this Agreement; or (ii) termination of the Joint Venture
Agreement.
10.2 EARLY TERMINATION. Either party may terminate this Agreement upon
written notice in the event of (i) any material breach of any warranty,
representation or covenant of this Agreement by the other party which remains
uncured thirty (30) days after notice of such breach, or (ii) in the event of
any bankruptcy, insolvency, receivership or similar proceeding of the other
party which continues for twenty (20) days from filing.
10.3 RETURN OF INFORMATION. Within thirty (30) calendar days after the
termination or expiration of this Agreement, each party hereto shall either
deliver to the other, or destroy, all copies of any tangible Confidential
Information of the other party provided hereunder in its possession or under
its control, and shall furnish to the other party an affidavit signed by an
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officer of its company certifying that to the best of its knowledge, such
delivery or destruction has been fully effected.
10.4 REMAINING PAYMENT. Within forty-five (45) calendar days of the
expiration or termination of this Agreement, each party shall pay to the
other party all sums, if any, due and owing as of the date of expiration or
termination.
10.5 SURVIVAL. The respective rights and obligations of the parties under
Sections 1, 4.1, 4.2, 4.3, 5.1, 5.3, 7.4, 10.3, 10.4, and 10.5. and Articles
6, 8, 9, and 11 shall survive expiration or termination of this Agreement.
No termination or expiration of this Agreement shall relieve any party for
any liability for any breach of or liability accruing under this Agreement
prior to termination.
ARTICLE 11: MISCELLANEOUS
11.1 GOVERNING LAW; JURISDICTION. This Agreement shall be interpreted and
construed in accordance with the laws of the State of California, and with
the same force and effect as if fully executed and performed therein, and the
laws of the United States of America. Each of YAUK and Yahoo hereby consents
and submits to the personal jurisdiction of the United States and state
courts of the State of California, and expressly agrees that the venue for
any action arising under this Agreement shall be the appropriate court
sitting within the Northern District of California.
11.2 AMENDMENT OR MODIFICATION. This Agreement may not be amended, modified
or supplemented by the parties in any manner, except by an instrument in
writing signed on behalf of each of the parties by a duly authorized officer
or representative.
11.3 NO ASSIGNMENT. Neither party shall transfer or assign any rights or
delegate any obligations hereunder, in whole or in part, whether voluntarily
or by operation of law, without the prior written consent of the other party.
Any purported transfer, assignment or delegation by either party without the
appropriate prior written approval shall be null and void and of no force or
effect. Notwithstanding the foregoing, without securing such prior consent,
each party shall have the right to assign this Agreement or any of its rights
or obligations to an Affiliate provided that such party continues to be
liable for the performance of its obligations and either party shall have the
right to assign this Agreement and the obligations hereunder to any successor
of such party by way of merger or consolidation or the acquisition of
substantially all of the business and assets of the assigning party relating
to the Agreement.
11.4 NOTICES. Except as otherwise provided herein, any notice or other
communication to be given hereunder shall be in writing and shall be (as
elected by the party giving such notice): (i) personally delivered; (ii)
transmitted by postage prepaid registered or certified airmail, return
receipt requested; (iii) deposited prepaid with a nationally recognized
overnight courier service; or (iv) sent via facsimile, with a confirmation
copy sent via first class mail. Unless otherwise provided herein, all notices
shall be deemed to have been duly given on: (x) the date of receipt (or if
delivery is refused, the date of such refusal) if delivered personally or by
courier; or (y) three (3) days after the date of posting if transmitted by
mail. Either party may
[X] CONFIDENTIAL TREATMENT REQUESTED
change its address for notice purposes hereof on not less than three (3) days
prior notice to the other party. Notice hereunder shall be directed to a
party at the address for such party which is set forth below:
To Yahoo: Yahoo! Inc.
3400 Central Expressway
Santa Clara, CA 95051
Attention: President
Fax: (408) 731-3301
Copy to: James L. Brock
Venture Law Group
2800 Sand Hill Road
Menlo Park, California 94025
Fax: (415) 233-8386
To YAUK: Yahoo! U.K.
Cottons Centre
Hayes Lane
London SE1 2QT U.K.
Attn: Managing Director
Fax: [________________]
---------------------------
Copy to YAUK counsel as identified or direct by YAUK.
11.5 ENTIRE AGREEMENT. This Agreement represents the entire agreement of the
parties with respect to the subject matter hereof and supersedes all prior
and/or contemporaneous agreements and understandings, written or oral between
the parties with respect to the subject matter hereof.
11.6 WAIVER. Any of the provisions of this Agreement may be waived by the
party entitled to the benefit thereof. Neither party shall be deemed, by any
act or omission, to have waived any of its rights or remedies hereunder
unless such waiver is in writing and signed by the waiving party, and then
only to the extent specifically set forth in such writing. A waiver with
reference to one event shall not be construed as continuing or as a bar to or
waiver of any right or remedy as to a subsequent event.
11.7 FEES AND EXPENSES. Each party shall be responsible for the payment of
its own costs and expenses, including attorneys' fees and expenses, in
connection with the negotiation and execution of this Agreement.
11.8 RECOVERY OF COSTS AND EXPENSES. If either party to this Agreement brings
an action against the other party to enforce its rights under this Agreement,
the prevailing party shall be
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entitled to recover its costs and expenses, including without limitation,
attorneys' fees and costs incurred in connection with such action, including
any appeal of such action.
11.9 SEVERABILITY. If the application of any provision or provisions of this
Agreement to any particular facts of circumstances shall be held to be
invalid or unenforceable by any court of competent jurisdiction, then: (i)
the validity and enforceability of such provision or provisions as applied to
any other particular facts or circumstances and the validity of other
provisions of this Agreement shall not in any way be affected or impaired
thereby; and (ii) such provision or provisions shall be reformed without
further action by the parties hereto and only to the extent necessary to make
such provision or provisions valid and enforceable when applied to such
particular facts and circumstances.
11.10 OTHER AGREEMENTS. Neither party shall agree to any contractual
provision or term in any agreement with any third party which contains a
provision or term which cause such party to be in breach of or violates this
Agreement.
11.11 NO DISCLOSURE. Without the prior written consent of the other
party, neither party shall, in any manner, disclose, advertise, or publish
the terms of, or any information concerning, this Agreement; PROVIDED,
HOWEVER, that either party may disclose such portions of this Agreement as
may be required by law, subject to the provisions of Article 5 hereto.
11.12 NO THIRD PARTY BENEFICIARIES. Nothing express or implied in this
Agreement is intended to confer, nor shall anything herein confer, upon any
person other than the parties and the respective successors or assigns of the
parties, any rights, remedies, obligations or liabilities whatsoever.
11.13 COUNTERPARTS; FACSIMILES. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original, and such counterparts together shall constitute one and
the same instrument. Each party shall receive a duplicate original of the
counterpart copy or copies executed by it. For purposes hereof, a facsimile
copy of this Agreement, including the signature pages hereto, shall be deemed
to be an original. Notwithstanding the foregoing, the parties shall each
deliver original execution copies of this Agreement to one another as soon as
practicable following execution thereof.
IN WITNESS WHEREOF, the parties to this Agreement by their duly
authorized representatives have executed this Agreement as of the date first
above written.
YAHOO! U.K. YAHOO! INC.
By: /S/ HEATHER KILLEN By: /s/ TIMOTHY KOOGLE
---------------------------- -----------------------------
Name: Heather Killen Name: Timothy Koogle
Title: President & CEO Title: President
[X] CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT A
YAHOO U.K. TECHNICAL SPECIFICATIONS
I. TECHNICAL SPECIFICATIONS
Yahoo will provide HTML Tree and Search Tree data files described below,
to YAUK: PROVIDED, HOWEVER, that Yahoo reserves the right to modify the
structure of its HTML tree and search tree from time to time as Yahoo deems
necessary in connection with similar modifications that are made to the Yahoo
Internet Directory on Yahoo's principal WWW site.
(A) HTML TREE: The file format of individual data files is in HTML
format. The hierarchical directory structure is implemented using UNIX file
system.
(B) SEARCH TREE: The search index format is a flat file text format
that is subject to update.
II. TOOLS AND SEARCH ENGINE
Yahoo will provide to YAUK the following tools for use in connection with
Yahoo U.K. Subject to the terms and conditions of this Agreement, Yahoo
reserves the right to add, delete and modify from this list so long as the
service is not degraded or interrupted significantly, and Yahoo notifies YAUK
in advance and works with YAUK in good faith before making any such changes.
A. HTTP SERVER: A C program compiled on the hardware platform
provided. The initial version of HTTP software will be proprietary to Yahoo.
Subject to the terms and conditions of this Agreement, this software may be
replaced by third party software in the future.
B. SEARCH SERVER: A C program compiled on the hardware provided. This
software is proprietary to Yahoo. Subject to the terms and conditions of
this Agreement, Yahoo reserves the right to change the search engine to a
third party software at Yahoo's discretion without notice.
C. CGI SCRIPTS: These scripts are either written in C or in Perl. The
platforms must have Perl installed.
D. UTILITY SCRIPTS: These scripts are written in Perl or similar shell
languages. The platform must support cron jobs and have Perl, and other
required shell environments, installed.
E. LOG DATA TOOL: This software tool, which is proprietary to Yahoo,
is a set of CGI scripts written in Perl that summarize, analyze, and display
summary information regarding Log Data. Yahoo will use this tool to remotely
access Log Data collected by YAUK pursuant to this Agreement.
[X] CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT B
YAHOO BRAND GUIDELINES
1. GENERAL. The Yahoo Brand Features may be used by YAUK only in connection
with the exercise of YAUK's rights pursuant to this Agreement, and only with
the promotion of the use of Yahoo Properties and Yahoo Products pursuant to
the terms of this Agreement and only in a manner consistent with proper usage
of the trademarks, trade names, service marks, service names and other
elements that are contained.
2. APPEARANCE OF LOGOS. Yahoo and YAUK will use their best efforts to ensure
that the presentation of the Yahoo Brand Features shall be consistent with
Yahoo's use of the Yahoo Brand Features on Yahoo's URLs. YAUK shall use the
Yahoo Brand Features in a manner reasonably consistent with other key third
party content used by YAUK in connection with Yahoo U.K.
3. NOTICES. All trademarks and service marks included in the Yahoo Brand
Features shall be designated with "SM", "TM", "-Registered Trademark-", in
the manner directed by Yahoo.
4. APPEARANCE. Promptly following the Effective Date, and from time to time
during the Term, Yahoo shall provide YAUK with written guidelines for the
size, typeface, colors and other graphic characteristics of the Yahoo Brand
Features, which upon delivery to YAUK shall be deemed to be incorporated into
the "Yahoo Brand Guidelines" under this Agreement.
5. RESTRICTIONS UPON USE. Unless otherwise mutually agreed, the Yahoo Brand
Features shall not be presented or used by YAUK:
A. in a manner that could be reasonably interpreted to suggest that any
editorial content other than the Yahoo Service has been authored by, or
represents the views or opinions of, Yahoo or any Yahoo personnel;
B. in a manner that is misleading, defamatory, libelous, obscene or
otherwise objectionable, in Yahoo's reasonable opinion;
C. in a way that infringes, derogates, dilutes or impairs the rights of
Yahoo in the Yahoo Brand Features;
D. for the purposes of promoting the sale, license or other transfer
for value of property or services, other than in connection with the
promotion of the sale and use of Yahoo U.K.; or
E. as part of a name of a product or service of a company other than
Yahoo, except as expressly provided in this Agreement.
[X] CONFIDENTIAL TREATMENT REQUESTED
6. REMEDY. YAUK will make any changes to its use of the Yahoo Brand Features
as are reasonably requested by Yahoo.
7. REVISIONS. These Guidelines may be modified as may be reasonably
necessary at any time by Yahoo upon written notice to YAUK.
[X] CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT C
COMPETITIVE NAVIGATIONAL TOOLS
Competitive Navigational Tools shall include the Internet directories and
Internet search tools including, but not limited to those listed below or
offered by a party listed below:
[XXXX]
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EXHIBIT D
LICENSE FEES
License fee: [XXXX] for each year of this Agreement.
[X] CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT E
YAHOO U.K. LOG DATA
Each time a customer accesses Yahoo U.K., Yahoo requires the following User
Log Data from YAUK:
1. The customer's Internet protocol address;
2. The date and time of access;
3. A description of the page of Yahoo U.K. accessed
(e.g.,/Entertainment/Games/Video Games/)
[X] CONFIDENTIAL TREATMENT REQUESTED
-i-
Joint Venture Agreement - SB Holdings (Europe) Ltd. and Yahoo!
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