{"id":41992,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/advertising-agreement-amazon-com-inc-and-geocities.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"advertising-agreement-amazon-com-inc-and-geocities","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/advertising-agreement-amazon-com-inc-and-geocities.html","title":{"rendered":"Advertising Agreement &#8211; Amazon.com Inc. and GeoCities"},"content":{"rendered":"<pre>\n                             ADVERTISING AGREEMENT\n                                        \n     This Advertising Agreement (this \"Agreement\"), dated as of November 5,\n1997, is made between Amazon.com, Inc., a Delaware corporation (\"Amazon.com\"),\nand GeoCities, a California corporation (\"GeoCities\").    Amazon.com and\nGeoCities sometimes are referred to collectively as the \"Parties\" and\nindividually as a \"Party\".   In consideration of the mutual promises contained\nin this Agreement, Amazon.com and GeoCities hereby agree as follows:\n\nSECTION 1.  DEFINITIONS\n\n     The following terms (and all conjugations and declensions thereof) are used\nin this Agreement with the respective meanings set forth below:\n\n     1.1.  \"ABOVE-THE-FOLD\" means situated within the portion of a page that is\ndesigned to be visible on a standard computer screen with a resolution of 640\npixels by 480 pixels without requiring the user to scroll horizontally or\nvertically through the page.\n\n     1.2.  \"AFFILIATE\" means, with respect to either Party, any individual or\nentity that directly or indirectly controls, is controlled by or is under common\ncontrol with that Party. As used in this definition, \"control\" means either (a)\nthe ownership of greater than 50% of an entity's voting securities, or (b) the\nability, through contract or otherwise, to determine an entity's operating\nactivities. For the purposes of clarification, the parties acknowledge that\nGeoCities Japan is not an Affiliate of GeoCities.\n\n     1.3.  \"AMAZON.COM SITE\" means, collectively, all points of presence and\/or\nservices maintained by Amazon.com or its Affiliates on the Internet or on any\nother public data network.\n\n     1.4.  \"ASSOCIATE\" means any World Wide Web site that registers and is\naccepted as a participant in Amazon.com's Associates Program.\n\n     1.5.  \"COMMENCEMENT DATE\" means the date GeoCities first provides\nAmazon.com with all links, advertisements and other promotional placements\ncontained in \"Phase 1 ,\" as more particularly described in Exhibit B to this\nAgreement.\n\n     1.6.  \"COMPETITOR\" means (a) any of the entities listed on Exhibit A, or\n(b) any individual, corporation, corporate division, World Wide Web site or\nother entity that either derives more than [***] of its annual gross revenues\nfrom the sale of books or magazines, or is primarily known as a seller of books\nor magazines.\n\n     1.7.  \"EXCLUSIVE AREAS\" means the portions of the GeoCities Site that will\nsubject to the exclusivity provisions of Section 7, as more particularly\ndescribed in Exhibit C to this Agreement.\n\n     1.8.  \"GEOCITIES SITE\" means, collectively, (a) the World Wide Web site\ncurrently located at the URL www.geocities.com (and all successors or\nreplacements thereto, regardless of network or URL), and (b) all other points of\npresence and\/or services maintained by or on behalf\n\n[***] Confidential treatment requested for redacted portion.\n\n \nof GeoCities or its Affiliates on the Internet or on any other public data\nnetwork; provided, however, that \"GeoCities Site\" does not include any\nHomesteader Page or GeoShop Page. Clauses (a) and (b) above will not include any\npersonal home page community that is co-branded or jointly developed by\nGeoCities (or its Affiliates) and any third party to the extent that the\ncharacterization of such community as part of the GeoCities Site would conflict\nwith or would violate either (i) any agreement between GeoCities and the\nrelevant third party dated prior to or concurrent with the establishment of the\ncommunity, or (ii) any agreement between the third party and any other person or\nentity dated prior to or concurrent with the establishment of the community.\nGeoCities will provide Amazon.com with reasonable documentary evidence\nsupporting the exclusion of any personal home page community from the GeoCities\nSite pursuant to the preceding sentence.\n\n     1.9.  \"GEOSHOP PAGE\" means any commercial home page established by an\nindividual or entity (other than GeoCities or its Affiliates) pursuant to\nGeoCities GeoShop program that resides within a \"member neighborhood\" on the\nGeoCities Site.\n\n     1.10. \"HOMESTEADER PAGE\" means any personal home page established by an\nindividual or entity (other than GeoCities or its Affiliates) pursuant to the\nGeoCities Homesteader program that resides within a \"member neighborhood\" on the\nGeoCities Site.\n\n     1.11. \"INTERNATIONAL SERVICE\" means any Internet or network-based service\nthat (a) is operated by an individual or entity other than a GeoCities\nAffiliate, (b) is hosted on computer servers located outside of the United\nStates, (c) is substantially similar to all or any services offered via the\nGeoCities Site, and (d) is operated either in conjunction with a GeoCities trade\nname, trademark, service mark or other proprietary mark, or with material\nassistance from GeoCities or its Affiliates.\n\n     1.12. \"PAGE VIEW\" means each instance in which (a) an individual user\nrequests that a discrete Web page contained within the GeoCities Site be\ntransmitted to the user's computer, and (b) a GeoCities Site server actually\ntransmits the page to the user's computer.\n\n     1.13. \"QUALIFYING REVENUES\" means, with respect to any payment period, (a)\nthe aggregate gross revenues (excluding taxes, gift-wrapping and shipping and\nhandling charges) derived by Amazon.com from product sales that occur during\nSessions, less (b) any revenues attributable to returned products, if such\nrevenues previously were included in \"Qualifying Revenues.\"\n\n     1.14. \"SESSION\" means each instance in which a user accesses the Amazon.com\nSite via a hypertext link embedded in any link, advertisement or other\npromotional placement provided by GeoCities under this Agreement, and then views\none or more consecutive Amazon.com Site pages. A Session terminates when the\nuser exits the Amazon.com Site by any means.\n\n                                       2\n\n \nSECTION 2.  PROMOTIONAL PLACEMENTS\n\n     GeoCities will provide the advertisements and promotions specified in\nExhibit 8, in accordance with the provisions contained in that Exhibit.\n\nSECTION 3.  PROMOTION OF ASSOCIATES PROGRAM\n\n     GeoCities will implement a program through which GeoCities will encourage\nits members with Homesteader Pages to become active members of Amazon.com's\nAssociates Program. The Parties will cooperate in the development of such\npromotional program, with the goal of launching the program during first\nquarter, 1998.\n\nSECTION 4.  COMPENSATION\n\n     4.1.   As full consideration for GeoCities' performance under this\nAgreement (including, without limitation, GeoCities' provision of all links,\nadvertisements and promotions specified in Sections 2 and 3), Amazon.com will\npay GeoCities the fixed placement fees, variable incentive payments and new\nAssociate bounties specified in this Section 4.\n\n     4.2.   During the initial term of this Agreement, Amazon.com will pay\nGeoCities (a) a fixed development fee of $[***], and (b) fixed placement fees of\n$[***]for each [***] that occurs subsequent to the Commencement Date.\n\n     4.3.   During the term of this Agreement (including any renewal term), for\neach [***] that occurs subsequent to the Commencement Date, Amazon.com will pay\nGeoCities the applicable percentage(s) of Qualifying Revenues set forth below:\n\n\n\n\n-------------------------------------------------------------------------------\n     CUMULATIVE QUALIFIED REVENUES [***]                  REVENUE SHARE\n                                                            PERCENTAGE\n-------------------------------------------------------------------------------\n                                                       \n                    [***]                                      [***]\n-------------------------------------------------------------------------------\n                    [***]                                      [***]\n-------------------------------------------------------------------------------\n                    [***]                                      [***]\n-------------------------------------------------------------------------------\n                    [***]                                      [***]\n-------------------------------------------------------------------------------\n\n\n\n\n     4.4.   For each Homesteader Page that becomes an Associate during the term\nof this Agreement and, during the [***] following the Homesteader Page's\nbecoming an Associate is responsible for at least $[***] in referred product\nsales (as calculated pursuant to the rules of the Associates Program),\nAmazon.com will pay GeoCities a bounty of $[***]. Notwithstanding the foregoing,\nAmazon.com will not be obligated to pay any bounties with respect to Homesteader\nPages that joined the Associates Program prior to the Commencement Date. This\nprovision will\n\n[***]  Confidential treatment requested for redacted portion.\n\n                                       3\n\n \nsurvive the expiration or termination of this Agreement with respect to those\nHomesteader Pages that became Associates within twelve (12) months prior to such\nexpiration or termination.\n\n     4.5.  Amazon.com will pay the fixed development fee promptly following the\nexecution of this Agreement. Amazon.com will make all other payments under this\nSection 4 on a [***] basis, in arrears. Specifically, within 30 days following\nthe end of each [***] occurring subsequent to the Commencement Date, Amazon.com\nwill pay GeoCities an amount equal to the fixed placement fee payable under\nSection 4.2, plus the revenue share that accrued during the period under Section\n4.3, plus any new Associate bounties that accrued during the period under\nSection 4.4. At GeoCities' option, GeoCities may submit invoices for the fees\nspecified in Section 4.2(b) at the beginning of each three-month payment period.\n\n     4.6.  Amazon.com will deliver, together with each payment made pursuant to\nSection 4.5, a written report signed by an authorized representative of\nAmazon.com that describes (in reasonable detail) Amazon.com's calculation of the\npayment amount.\n\n     4.7.  GeoCities acknowledges that Amazon.com must implement certain\nimprovements to its accounting software to accurately track Qualified Revenues.\nAmazon.com will use commercially reasonable efforts to implement such\nimprovements, with the goal of completing the implementation within ninety (90)\ndays following the date of this Agreement. Until such implementation is\ncomplete, Amazon.com will estimate Qualifying Revenues in good faith, in\naccordance with a written methodology to be provided to GeoCities.\n\nSECTION 5.  IMPLEMENTATION\n\n     5.1.  GeoCities and Amazon.com acknowledge that time is of the essence in\nthe design, development and commencement of the links, advertisements and\npromotional placements specified in this Agreement. Accordingly, the Parties\nwill devote all commercially reasonable efforts to launch each link,\nadvertisement and promotional placement as soon as reasonably possible, in\naccordance with a written development plan to be negotiated by the Parties in\ngood faith.\n\n     5.2.  GeoCities, in cooperation with Amazon.com, will test the links,\nadvertisements and promotional placements required under the Agreement prior to\ntime that they \"go live\" on the GeoCities Site (e.g., prior to the time that\nthey are implemented and enabled on a production version of the GeoCities Site).\n\n     5.3.  GeoCities will not cause any link, advertisement or promotional\nplacement under the Agreement to go live on the GeoCities Site prior to the\napplicable date agreed by the Parties. Further, at Amazon.com's discretion,\ntraffic from promotional links and advertising placements will be enabled in\nstages; provided, however, that such staging will not delay the Commencement\nDate.\n\n[***]  Confidential treatment requested for redacted portion.\n\n                                       4\n\n \nSECTION 6.  TRAFFIC DATA\n\n     On a monthly basis, GeoCities will provide Amazon.com with mutually agreed\ndata concerning search and browsing behavior on the GeoCities Site, to the\nextent such behavior reasonably could relate to the online promotion or sale of\nbooks, magazines or other products that Amazon.com may sell from time to time.\nAmazon.com will hold such data in confidence and will use it only in accordance\nwith reasonable guidelines to- be agreed by the Parties.  Notwithstanding\nanything contained in this Section, GeoCities will not be required to deliver to\nAmazon.com any user data in violation of its then-existing policies regarding\nthe protection of user information.\n\nSECTION 7.  EXCLUSIVITY AND OTHER RIGHTS\n\n     7.1.   [***]\n\n     7.2.   Nothing in Section 7.1 will prevent GeoCities from directly selling\na limited number of books through its own store on the GeoCities Site, provided\nthat GeoCities does not offer to sell more than [***] book titles at any time.\nFurther, nothing in Section 7.1 will prevent the owner or operator of any\nGeoShop Page from selling or promoting books or magazines on its GeoShop Page,\nprovided that (a) GeoCities first makes a commercially reasonable attempt to\npersuade the owner or operator to become an Amazon.com Associate, and (b) the\nowner's or operator's gross revenues attributable to the sale or distribution of\nbooks and magazines during the twelve-month period prior to the launch of its\nGeoShop Page did not exceed $250,000. At Amazon.com's request, GeoCities will\nprovide Amazon.com with reasonable documentation demonstrating its continuing\ncompliance with the preceding sentence.\n\n     7.3.  If Amazon.com enters into any other product category other than the\nsale of books or magazines, GeoCities will offer Amazon.com the opportunity to\nparticipate in good-faith negotiations regarding extending the scope of this\nAgreement to include the new category (subject to GeoCities' then-existing\ncontractual commitments).\n\n     7.4.  GeoCities will introduce Amazon.com's principal executives to the\nprincipal executives of each International Service. At Amazon.com's request,\nGeoCities will use commercially reasonable efforts to facilitate discussions\nbetween such principal executives regarding transactions involving any links,\nadvertisements, promotional placements or promotional activities that are\nsimilar in nature to those provided under this Agreement.\n\n[***]  Confidential treatment requested for redacted portion.\n\n                                       5\n\n \nSECTION 8. INDEMNIFICATION\n\n     8.1.  Amazon.com will defend and indemnify GeoCities and its Affiliates\n(and their respective employees, directors and representatives) against any\nclaim or action brought by a third party, to the extent relating to (a) the\noperation of the Amazon.com Site, or (b) the violation of third-party\nintellectual property rights by any editorial content or other materials\nprovided by Amazon.com for display on the GeoCities Site. Subject to GeoCities'\ncompliance with the procedures described in Section 8.3, Amazon.com will pay any\naward against GeoCities or its Affiliates (or their respective employees,\ndirectors or representatives) and any costs and attorneys' fees reasonably\nincurred by GeoCities and its Affiliates resulting from any such claim or\naction.\n\n     8.2.  GeoCities will defend and indemnify Amazon.com and its Affiliates\n(and their respective employees, directors and representatives) against any\nclaim or action brought by a third party, to the extent relating to (a) the\noperation of the GeoCities, or (b) the violation of third-party intellectual\nproperty rights by any materials provided by GeoCities for display on the\nAmazon.com Site. Subject to Amazon.com's compliance with the procedures\ndescribed in Section 8.3, GeoCities will pay any award against Amazon.com or its\nAffiliates (or their respective employees, directors or representatives) and any\ncosts and attorneys' fees reasonably incurred by Amazon.com and its Affiliates\nresulting from any such claim or action.\n\n     8.3.  In connection with any claim or action described in this Section, the\nParty seeking indemnification (a) will give the indemnifying Party prompt\nwritten notice of the claim, (b) will cooperate with the indemnifying Party (at\nthe indemnifying party's expense) in connection with the defense and settlement\nof the claim, and (c) will permit the indemnifying Party to control the defense\nand settlement of the claim, provided that the indemnifying Party may not settle\nthe claim without the indemnified Party's prior written consent (which will not\nbe unreasonably withheld). Further, the indemnified party (at its cost) may\nparticipate in the defense and settlement of the claim.\n\nSECTION 9. INTELLECTUAL PROPERTY RIGHTS\n\n     9.1.  Subject to the limited license granted to GeoCities under section\n9.2, Amazon.com reserves all of its right, title and interest in its\nintellectual property rights (e.g., patents, copyrights, trade secrets,\ntrademarks and other intellectual property rights). Subject to the limited\nlicense granted to Amazon.com under Section 9.3, GeoCities reserves all of its\nright, title and interest in intellectual property rights. Neither Party grants\nany license to the other except as specifically set forth in this Section 9.\n\n     9.2.  Amazon.com hereby grants to GeoCities, during the term of this\nAgreement, a non-exclusive, non-transferable license to use Amazon.com's trade\nnames, trademarks, service names and similar proprietary marks as is reasonably\nnecessary to perform its obligations under this Agreement; provided, however,\nthat any promotional materials containing Amazon.com's proprietary marks will be\nsubject to Amazon.com's prior written approval.\n\n                                       6\n\n \n     9.3.  GeoCities hereby grants to Amazon.com, during the term of this\nAgreement, a non-exclusive, non-transferable license to use GeoCities' trade\nnames, trademarks, service names and similar proprietary marks as is reasonably\nnecessary to perform its obligations under this Agreement; provided, however,\nthat any promotional materials containing GeoCities' proprietary marks will be\nsubject to GeoCities' prior written approval.\n\n     9.4.  Neither GeoCities nor Amazon.com will use the other Party's\nproprietary marks in a manner that disparages the other Party or its products or\nservices, or portrays the other Party or its products or services in a false,\ncompetitively adverse or poor light. Each of GeoCities and Amazon.com will\ncomply with the other Party's requests as to the use of the other Party's\nproprietary marks and will avoid any action that diminishes the value of such\nmarks. Either Party's unauthorized use of the other's proprietary marks is\nstrictly prohibited.\n\nSECTION 10.TERM AND TERMINATION\n\n     10.1. The term of this Agreement will begin on the date of this Agreement\nand, unless terminated or renewed in accordance with this Section 10, will end\n[***] following the Commencement Date.\n\n     10.2. Either GeoCities or Amazon.com may terminate this Agreement if the\nother party (a) materially breaches this Agreement and does not cure the breach\nwithin thirty (30) days following its receipt of written notice from the non-\nbreaching party, or (b) ceases to carry on the portion of its business that\nrelates to this Agreement.\n\n     10.3. Prior to consummating or concurrently with the consummation of any\nmerger, acquisition, transfer of control, sale of substantial assets or similar\ntransaction with any third party, GeoCities will obtain the third party's\nwritten agreement to be bound by all terms and conditions of this Agreement. At\nany time following the closing of any such transaction, Amazon.com may terminate\nthis Agreement without liability by giving written notice to GeoCities if (a)\nthe third party is a non-Competitor, and Amazon.com reasonably determines that\nsuch transaction has resulted in a material reduction of the benefits of this\nAgreement to Amazon.com, or (b) the third party is a Competitor.\n\n     10.4. Sections 4.4 (to the extent specified therein), 8, 11, 12, and 13\n(together with all other provisions that reasonably may be interpreted as\nsurviving termination or expiration of this Agreement) will survive the\ntermination or expiration of this Agreement.\n\n     10.5. Amazon.com will have an option to renew the term of this Agreement\nfor a single [***] renewal term by giving GeoCities written notice, at least\nthirty (30) days prior to the expiration of the initial term, indicating\nAmazon.com's exercise of its option to renew the term of this Agreement. During\nany such renewal term, all terms and conditions of this Agreement will remain in\nfull force and effect, except that the fixed development and placement fees\npayable pursuant to Section 4.2 will be increased by a multiple equal to [***].\n[***] the Parties will equitability adjust the fixed fees payable during the\nrenewal period to reflect such reduction in [***] traffic.\n\n[***]  Confidential treatment requested for redacted portion.\n\n                                       7\n\n \nSECTION 11. DISPUTE RESOLUTION\n\n     11.1.  In all discussions and activities relating to tiffs Agreement,\nAmazon.com and GeoCities will cooperate in good faith to accomplish the\nobjectives specified in this Agreement. If any dispute arises relating to either\nParty's rights or obligations under this Agreement, and the Parties are unable\nto resolve the dispute in the ordinary course of business, Amazon.com and\nGeoCities will use good-faith efforts to resolve the matter in accordance with\nthis Section 11.\n\n     11.2.  Within five (5) days following the written request of either Party\n(which will describe the nature of the dispute and other relevant information),\nthe Parties' managers who are responsible for the Amazon.com. GeoCities\nrelationship will meet to resolve the dispute at a mutually convenient time and\nplace. If the relationship managers are unable to resolve the dispute within two\n(2) days following their initial meeting, they will refer the matter to the\nParties' divisional executives who are responsible for the administration of\nthis Agreement, along with a written statement (or statements) describing the\nnature of the dispute and other relevant information.\n\n     11.3.  Within five (5) days following the referral of the matter to the\nParties' divisional executives, the divisional executives will meet to resolve\nthe dispute at a mutually convenient time and place. Additional representatives\nof the parties may be present at the meeting. If the divisional executives are\nunable to resolve the dispute within two (2) days following their initial\nmeeting, they will refer the matter to the Parties' Chief Executive Officers,\nalong with a written statement (or statements) describing the nature of the\ndispute and other relevant information.\n\n     11.4.  Within five (5) days following the referral of the matter to the\nParties' CEOs, the CEOs will meet to resolve the dispute at a mutually\nconvenient time and place. Additional representatives of the parties may be\npresent at the meeting. If the CEOs are unable to resolve the dispute within two\n(2) days following their initial meeting (or such later date as they may agree),\nthe Parties will be free to pursue whatever remedies may be available at law or\nin equity.\n\n     11.5.  All negotiations pursuant to this Section 11 will be confidential\nand treated as compromise and settlement negotiations for purposes of applicable\nrules of evidence. Any resolution reached under this Section will be reduced to\nwriting and signed by the Parties. During any dispute resolution procedure\nconducted under this Section, the Parties will diligently perform all\nobligations hereunder that are not directly related to the dispute.\n\nSECTION 12. DISCLAIMERS, LIMITATIONS AND RESERVATIONS\n\n     12.1.  EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, GEOCITIES DOES NOT\nMAKE, AND HEREBY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES REGARDING THE\nGEOCITIES SITE, GEOCITIES' SERVICES OR ANY PORTION THEREOF, INCLUDING (WITHOUT\nLIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR\nPURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, GEOCITIES\nSPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING (A) THE AMOUNT\nOF SALES REVENUE THAT AMAZON.COM MAY RECEIVE DURING THE\n\n                                       8\n\n \nTERM, AND (B) ANY ECONOMIC OR OTHER BENEFIT THAT AMAZON.COM MIGHT OBTAIN THROUGH\nITS PARTICIPATION IN THIS AGREEMENT.\n\n     12.2.  EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, AMAZON.COM DOES NOT\nMAKE, AND HEREBY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES REGARDING THE\nAAZON.COM SITE, AMAZON.COM'S SERVICES OR ANY PORTION THEREOF, INCLUDING (WITHOUT\nLIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR\nPURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AMAZON.COM\nSPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING (A) THE AMOUNT\nOF SALES REVENUES THAT MAY OCCUR DURING THE TERM, AND (B) ANY ECONOMIC OR OTHER\nBENEFIT THAT GEOCITIES MIGHT OBTAIN THROUGH ITS PARTICIPATION IN THIS AGREEMENT.\n\n     12.3.  NEITHER AMAZON.COM NOR GEOCITIES WILL BE LIABLE TO THE OTHER FOR\nCONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA)\nARISING OUT OF THIS AGREEMENT. EACH PARTY'S ENTIRE LIABILITY ARISING FROM THIS\nAGREEMENT (EXCEPT FOR LIABILITIES ARISING UNDER SECTION 8 OR RESULTING FROM THE\nPARTY'S WILLFUL MISCONDUCT), WHETHER IN CONTRACT OR TORT, WILL NOT EXCEED AN\nAMOUNT EQUAL TO THE AMOUNTS TO BE PAID BY AMAZON. COM UNDER SECTION 4.\n\n     12.4.  Amazon.com will remain solely responsible for the operation of the\nAmazon.com Site, and GeoCities will remain solely responsible for the operation\nof the GeoCities Site. Each Party (a) acknowledges that the Amazon.com Site and\nthe GeoCities Site may be subject to temporary shutdowns due to causes beyond\nthe operating Party's reasonable control, and (b) subject to the specific terms\nof this Agreement, retains sole right and control over the programming, content\nand conduct of transactions over its respective site.\n\nSECTION 13. MISCELLANEOUS\n\n     13.1.  The Parties are entering this Agreement as independent contractors,\nand this Agreement will not be construed to create a partnership, joint venture,\nfranchise or employment relationship between them. Neither Party will represent\nitself to be an employee or agent of the other or enter into any agreement on\nthe other's behalf of or in the other's name.\n\n     13.2.  With respect to information received by either party as a result of\nthis Agreement, the Parties will abide by the terms and conditions of their\nNondisclosure Agreement dated as of August 25, 1997 (but only to the extent that\nthe information constitutes \"Confidential Information,\" as defined in the\nNondisclosure Agreement). The Parties agree that the terms and conditions of\nthis Agreement will constitute Confidential Information under their\nNondisclosure Agreement.\n\n     13.3.  Following the execution of this Agreement, Amazon.com and GeoCities\nwill prepare and distribute a joint press release (or coordinated press\nreleases) announcing the\n\n                                       9\n\n \ntransaction. The contents and timing of the release (or releases) shall be as\nmutually agreed by the Parties. Neither Party will issue any further press\nreleases or make any other disclosures regarding this Agreement or its terms\nwithout the other Party's prior written consent.\n\n     13.4.  In its performance of this Agreement, each Party will comply with\nall applicable laws, regulations, orders and other requirements, now or\nhereafter in effect, of governmental authorities having jurisdiction. Without\nlimiting the generality of the foregoing, each Party will pay, collect and remit\nsuch taxes as may be imposed upon it with respect to any compensation, royalties\nor transactions under this Agreement. Except as expressly provided herein, each\nParty will be responsible for all costs and expenses incurred by it in\nconnection with the negotiation, execution and performance of this Agreement.\n\n     13.5.  Each Party will keep detailed records of all activities reasonably\nrelating to its performance under this Agreement (\"Records\"). Either Party (the\n\"Auditing Party\"), upon thirty (30) days' prior written notice to the other\nParty (the \"Audited Party\"), may conduct an audit of the Audited Party's Records\nfor the purpose of verifying the accuracy and completeness of any report or\nother information provided by the Audited Party under this Agreement. Any such\naudit will be conducted (a) in a manner that will not unreasonably interfere\nwith the Audited Party's operations, and (b) by an independent certified public\naccounting firm that is reasonably acceptable to the Audited Party and that has\nagreed in writing to protect the confidentiality of the Audited Party's Records\nand other information. A Party may conduct an audit under this Section no more\nthan once during any twelve-month period. The costs of any such audit will be\nborne by Auditing Party; provided, however, that if any audit determines that\nthe report or other information subject to the audit is inaccurate or incomplete\nby greater than ten percent (10%) (as measured by an appropriate measure\nreasonably determined by the auditor), the Audited Party will promptly reimburse\nthe Auditing Party for all reasonable expenses incurred to conduct the audit.\n\n     13.6.  Neither Amazon.com nor GeoCities will be liable for, or will be\nconsidered to be in breach of or default under this Agreement on account of, any\ndelay or failure to perform as required by this Agreement as a result of any\ncauses or conditions that are beyond such Party's reasonable control and that\nsuch Party is unable to overcome through the exercise of commercially reasonable\ndiligence. If any force majeure event occurs, the affected Party will give\nprompt written notice to the other Party and will use commercially reasonable\nefforts to minimize the impact of the event.\n\n     13.7.  Any notice or other communication under this Agreement given by any\nParty to any other Party will be in writing and will be deemed properly given\nwhen sent to the intended recipient by registered letter, receipted commercial\ncourier, or electronically receipted facsimile transmission (acknowledged in\nlike manner by the intended recipient) at its address and to the attention of\nthe individual specified below its signature at the end of this Agreement. Any\nParty may from time to time change such address or individual by giving the\nother Party notice of such change in accordance with this Section 13.7.\n\n     13.8.  Neither Amazon.com nor GeoCities may assign this Agreement, in whole\nor in part, without the other Party's prior written consent (which will not be\nwithheld unreasonably),\n\n                                       10\n\n \nexcept to (a) any corporation resulting from any merger, consolidation or other\nreorganization involving the assigning Party, (b) any of its Affiliates, or (c)\nany individual or entity to which the assigning Party may transfer substantially\nall of its assets; provided that the assignee agrees in writing to be bound by\nall the terms and conditions of this Agreement. Subject to the foregoing, this\nAgreement will be binding on and enforceable by the Parties and their respective\nsuccessors and permitted assigns. Nothing in this Section will limit\nAmazon.com's rights under Section 10.3.\n\n     13.9.  The failure of either party to enforce any provision of this\nAgreement will not constitute a waiver of the party's rights to subsequently\nenforce the provision. The remedies specified in this Agreement are in addition\nto any other remedies that may be available at law or in equity.\n\n     13.10. This Agreement (together with the parties' Nondisclosure Agreement)\n(a) represents the entire agreement between the parties with respect to the\nsubject matter hereof and supersedes any previous or contemporaneous oral or\nwritten agreements regarding such subject matter, (b) may be amended or modified\nonly by a written instrument signed by a duly authorized agent of each party,\nand (c) will be interpreted, construed and enforced in all respects in\naccordance with the laws of the State of Washington, without reference to its\nchoice of law rules. If any provision of this Agreement is held to be invalid,\nsuch invalidity will not effect the remaining provisions.\n\n                                       11\n\n \nThe parties have executed this Agreement on the date first written above.\n\n\n\n                                 AMAZON.COM, INC.\n \n                                 By:  \/s\/Amazon.com\n                                 Its:  Vice President, Business Development\n                                 1516 Second Avenue\n                                 Seattle, WA 98101\n                                 Facsimile:   206-346-2082\n                                 Attn:   General Counsel\n \n                                 GEOCITIES\n \n                                 By:  \/s\/James A. Rea\n                                 Its:  Vice President, Business Development\n\n                                 1918 Main Street.  3rd Floor\n                                 Santa Monica, CA 90405-1031\n                                 Facsimile:   310-664-6520\n                                 Attn:   James A. Rea\n\n                                       12\n\n \n                                   EXHIBIT A\n\n                                  COMPETITORS\n                                        \n\nAs used in this Agreement, \"Competitors\" includes (without limitation) the\nfollowing entities:\n\n\n     [***]\n\n[***] Confidential treatment requested for redacted portion.\n\n \n                                   EXHIBIT B\n\n                           PLACEMENTS AND PROMOTIONS\n                                        \n\n     GeoCities will provide to Amazon.com the placements and promotions\nspecified in this Exhibit.\n\n1.   GENERAL\n\n     1.1.  GeoCities and Amazon.com will use commercially reasonable efforts to\nimplement the placements and promotions provided in this Exhibit in a manner\nthat maximizes click through to, and product sales on, the Amazon.com Site. On\napproximately a quarterly basis, the Parties will conduct program reviews to\nassess the performance of the placements and promotions. If any placement or\npromotion proves ineffective, the Parties will conduct good-faith negotiations\nto modify such placement or promotion to improve its performance. As used in\nthis Exhibit, \"strategic sponsor\" means one of up to four (including Amazon.com)\npremium GeoCities sponsors that, pursuant to agreements similar in nature to\nthis Agreement, are provided with promotional placements affording the highest\nlevel of visibility offered to any other GeoCities sponsor.\n\n2.   PHASE 1 (TARGET START DATE 12\/1\/97)\n\n     2.1.  FIXED MEDIA PLACEMENTS.   GeoCities will provide Amazon.com with\nadvertising buttons and banners that yield a minimum of [***].  On a monthly\nbasis, the Parties will develop a media plan designating such placements from\namong GeoCities' available inventory of premium placements.  Amazon.com will\nreasonably determine the content and appearance of such buttons and banners in\naccordance with GeoCities' generally applicable technical specifications.\n\n\n     2.2.  POP-UP AND INTERSTITIAL ADVERTISEMENTS.   GeoCities will include\nAmazon.com in its trials of pop-up and interstitial advertisements.  If\nfollowing such trials, GeoCities elects to implement pop-ups and\/or interstitial\non a commercial basis, GeoCities will provide Amazon.com with a quantity of such\nadvertisements to be negotiated in good faith (provided that such quantity will\nbe no less than the quantity provided to any other strategic sponsor).\n\n     2.3.  GEOCITIES HOMEPAGE. GeoCities continuously will provide Amazon.com\nwith a prominent promotional button on the GeoCities Homepage. The button (a)\nwill be presented with the buttons of up to [***], (b) will be no smaller than\n[***], and (c) will be no smaller than the button of [***]. The size of all\n[***] buttons, taken together, will be at least twice the size of the \"Selected\nHighlights\" bar depicted on Attachment 1 to this Exhibit. Amazon.com will\nreasonably determine the content and appearance of its button in accordance with\nGeoCities' generally applicable technical specifications.\n\n[***]  Confidential treatment requested for redacted portion.\n\n \n     2.4.  NEIGHBORHOOD HOMEPAGES. GeoCities continuously will provide\nAmazon.com with a prominent promotional button or other placement on each\nGeoCities Neighborhood Homepage. The button or placement (a) will be presented\nwith the buttons or placements of up to [***], and (b) will be no smaller than\nthe button or placement of [***]. In addition, GeoCities continuously will\nprovide a \"commerce special\" area for the use of its [***], who will be entitled\nto post advertisements in such area on a rotating basis. Amazon.com will\nreasonably determine the content and appearance of its buttons, placements and\nadvertisements in accordance with GeoCities' generally applicable technical\nspecifications.\n\n     2.5.  NEIGHBORHOOD TOPIC PAGES. GeoCities continuously will provide\nAmazon.com with a prominent promotional button on each GeoCities Neighborhood\nTopic Page. The button or placement (a) will be presented with the buttons or\nplacements of up to [***], and (b) will be no smaller than the button or\nplacement of [***]. In addition, GeoCities will permit Amazon.com to place\ntargeted advertisements on each Topic Page (or on a Product Page linked to the\nTopic Page). Such advertising placements will be no less favorable than those\nprovided to [***]. Amazon.com will reasonably determine the content and\nappearance of its buttons, placements and advertisements in accordance with\nGeoCities' generally applicable technical specifications.\n\n3.   PHASE 2 (TARGET START DATE 1\/1\/98)\n\n     3.1.  MARKETPLACE PAGE. GeoCities continuously will provide Amazon.com with\na prominent advertising placement on the GeoCities Marketplace Page. The\nplacement (a) will be above-the-fold, (b) will be no smaller than the placement\nof [***], and (c) will be larger than the placements of all [***]. Further, the\nplacement will be no less favorable than the placement depicted on Attachment 2\nto this Exhibit. Amazon.com will reasonably determine the content and appearance\nof its placement in accordance with GeoCities' generally applicable technical\nspecifications.\n\n     3.2.  BOOK GUIDES PROGRAM. At Amazon.com's option, GeoCities will develop\nand implement an incentive program for GeoCities homesteaders to host book-\nrelated chat and discussion board sessions on their Homesteader Pages.\n\n     3.3.  CHAT PROGRAM INTEGRATION. At Amazon.com's option, GeoCities will list\nbook-related chat sessions in a directory of active chat sessions and will\nexperiment with placing direct buy buttons on book-related, member-hosted chat\npages. Further, GeoCities will include targeted product offers in chat areas\n(e.g., fishing-related books or magazines offered to participants in fishing\nchats).\n\n     3.4.  BOOK PAVILION. At Amazon.com's option, GeoCities will create and host\na \"book pavilion\" book resource, the specifics of which will be cooperatively\ndetermined by the Parties.\n\n     3.5.  KEY WORDS. If GeoCities implements a key-word based navigation\nsystem, GeoCities will provide Amazon.com with banners or other placements on\nall pages that result when a user enters any key-word that reasonably relates to\nAmazon.com, books or magazines.\n\n[***]  Confidential treatment requested for redacted portion.\n\n                                       2\n\n \nAmazon.com will reasonably determine the content and appearance of its\nplacements in accordance with GeoCities' generally applicable technical\nspecifications.\n\n     3.6.  WELCOME WAGON. GeoCities will provide a prominent Amazon.com\npromotional link or message in each \"welcome\" message or similar communication\nthat it sends to new Homesteader or GeoShop members. Amazon.com will reasonably\ndetermine the content and appearance of its link or message in accordance with\nGeoCities' generally applicable technical specifications.\n\n4.   PHASE 3 (TARGET START DATE 7\/1\/98)\n\n     GeoCities and Amazon.com will experiment with new promotional concepts and\nwill implement those that appear to provide successful results (subject in each\ncase to the agreement of both Parties). Areas that may be investigated include\nproduct offers on search result pages, product offers on interest pages, product\noffers on neighborhood script pages, product offers within instant messaging,\ncustomized GeoGuides, buyers' clubs, first-time buyers' specials, limited-time\ndiscounts, greeting card\/gift certificates and special offers for GeoCities Site\nvisitors.\n\n                                       3\n\n \n                                   EXHIBIT C\n                                        \n                                  EXCLUSIVITY\n                                        \n\n1.   EXCLUSIVE AREAS. The [***] include the following pages (and any successors\nthereof):\n\n     [***]\n\n2.   ADDITIONAL PROVISIONS. In addition to the restrictions contained in Section\n7.1 of the Agreement, if GeoCities implements a key-word based navigation\nsystem, GeoCities will not permit any Competitor to [***].\n\n[***]  Confidential treatment requested for redacted portion.\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6645],"corporate_contracts_industries":[9492],"corporate_contracts_types":[9613,9619],"class_list":["post-41992","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-amazoncom-inc","corporate_contracts_industries-retail__books","corporate_contracts_types-operations","corporate_contracts_types-operations__sales"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41992","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41992"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41992"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41992"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41992"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}