{"id":41993,"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-cdnow-and-geocities.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"advertising-agreement-cdnow-and-geocities","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/advertising-agreement-cdnow-and-geocities.html","title":{"rendered":"Advertising Agreement &#8211; CDnow and GeoCities"},"content":{"rendered":"<pre>\n                             ADVERTISING AGREEMENT\n                                        \n\n     This Advertising Agreement (\"AGREEMENT\"), dated as of January 5, 1998 is\nmade by and between CDnow, a Pennsylvania corporation, and GeoCities, a\nCalifornia corporation (\"GEOCITIES\"). CDnow and GeoCities sometimes are referred\nto collectively as the \"PARTIES\" and individually as a \"PARTY.\"\n\n     In consideration of the mutual promises contained in this Agreement and\nintending to be legally bound, CDnow and GeoCities hereby agree as follows:\n\nSECTION 1.  DEFINITIONS.\n\n     The following terms (and all declensions thereof) are used in this\nAgreement 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, by virtue of a majority ownership interest, directly controls, is\ncontrolled by or is under common control with that Party.\n\n     1.3  \"BEYOND THE BANNER\" means, any type of promotion which involves\npromotional techniques other than the placement of standard advertising banners\nor standard advertising buttons.\n\n     1.4  \"CDNOW ICONS\" is defined in Section 2.1 of this Agreement.\n\n     1.5  \"CDNOW SITE\" means, collectively, all points of presence and\/or\nservices maintained by CDnow or its Affiliates on the Internet or on any other\npublic data network.\n\n     1.6  \"COMMENCEMENT DATE\" means the date GeoCities first provides CDnow with\nall links, advertisements and other promotional placements required under Stage\nI described in the attached Exhibit B to this Agreement.\n\n     1.7  \"COMPETITOR\" means (a) any of the Entities listed on Exhibit C, (b)\nany Entity that either derives more than [***] of its annual gross revenues from\nthe retail sale of Music or Video Products, or is primarily known as [***] or\n(c) any Entity with more than U.S. [***] in annual revenues from the sale of\nMusic or Video Products, though such entities shall only be construed to be a\nCompetitor in the event that the advertising or promotion to be placed by such\nentity on the GeoCities Site is related to the category of Music or Video\nProducts. For purposes of this Section 1.7, any commercial homepage\nparticipating in GeoCities' GeoShops Program\n\n[***] Confidential treatment requested for redacted portion.\n\n \nand any Entity who exclusively manufactures or distributes, or any Entity that\nmanufactures or distributes exclusively on behalf of a manufacturer or\ndistributor of Music or Video Products and also engages in direct selling of\nMusic or Video Products shall not be construed to be a Competitor. Any Entity\nthat sells exclusively used media which contain Music or Video Products shall\nnot be considered a Competitor hereunder.\n\n     1.8  \"CONFIDENTIAL INFORMATION\" is defined in Section 13.2 of this\nAgreement.\n\n     1.9  \"COSMIC CREDIT PROGRAM\" means a syndicated selling program of CDnow\nthat sells Music or Video Products.\n\n     1.10 \"ENTITY\" means any individual, partnership, corporation, or division,\nsubsidiary or business unit thereof, retail site, World Wide Web site or other\nentity\n\n     1.11 \"EXCLUSIVE AREAS\" means the GeoCities neighborhood homepages and the\nGeoCities neighborhood topic pages and any materially similar pages or any pages\nthat supersede or replace these pages.\n\n     1.12 \"GEOCITIES BASIC COMMERCE PLATFORM\" means the collection of links,\nadvertisements and promotional placements (as specified in Exhibit A to this\nAgreement) associated with the GeoCities' neighborhood home pages and\nneighborhood topic pages.\n\n     1.13 \"GEOCITIES GEOSHOPS PROGRAM\" means the marketing program operated by\nGeoCities which offers its homesteaders the opportunity to create a commercially\noriented homepage within the GeoCities Site. Participants in the GeoCities\nGeoShops Program must confirm that their annual revenues are Two Hundred Fifty\nThousand Dollars ($250,000.00) or less upon application to the program..\n\n     1.14 \"GEOCITIES SITE\" means, collectively, and subject to the limitations\nset forth in the following sentences of this Section 1.13, all points of\npresence and\/or services maintained by GeoCities on the Internet as\nwww.geocities.com or on any other public data network; provided, however, that\n\"GeoCities Site\" does not include any Homesteader Page or GeoShop Page with\nrevenues annually of Two Hundred Fifty Thousand Dollars ($250,000) or less. To\nthe extent that GeoCities enters into agreements with third parties relating to\nthe joint development and\/or hosting of co-branded or outsourced personal home\npage communities, such co-branded and outsourced communities shall not\nconstitute part of the GeoCities Site, unless GeoCities determines, in its\nreasonable business judgment, that the inclusion of any such co-branded or\noutsourced communities does not in any way conflict with or violate any such\nagreement with a third party, or any agreements or other arrangements that such\nthird party may have with any other party, and provided such co-branding or\noutsourced communities do not reduce the prominence of the GeoCities Site. If\nGeoCities makes such a determination, it shall notify CDnow of such\ndetermination, and the co-branded or outsourced community in question shall\nthereupon become part of the \"GeoCities Site.\"\n\n     1.15 \"GEOSHOP PAGE\" means any homepage created by a participant in\nGeoCities GeoShops program.\n\n                                       2\n\n \n     1.16  \"HOMESTEADER PAGE\" means any personal homepage, or commercial\nhomepage participating in GeoCities' GeoShop program (other than a GeoCities\nAffiliate) which resides in a \"member neighborhood\" on the GeoCities Site.\n\n     1.17  \"IMPRESSIONS\" is defined in Section 8.5 of this Agreement.\n\n     1.18  \"INTELLECTUAL PROPERTY RIGHTS\" is defined in Section 10.1 of this\nAgreement.\n\n     1.19  \"KEY COMMERCE PARTNERS\" means up to any four (4) primary commerce\npartners of the GeoCities Site.\n\n     1.20  \"MAKE GOOD AMOUNT\" is defined in Section 8.6 of this Agreement.\n\n     1.21  \"MARKS\" means a Party's trademarks, tradenames, service marks,\nsymbols, logos, brand names and other proprietary indicia of a Party under\ncommon law, state law, federal law and laws of foreign countries.\n\n     1.22  \"MUSIC OR VIDEO PRODUCTS\" means all forms and formats of pre-recorded\nconsumer audio and video products available for retail sale directly to\nconsumers, excluding used media which contain Music or Video Products.\n\n     1.23  \"QUALIFYING REVENUES\" means, with respect to any monthly period, the\naggregate gross revenues resulting from Sessions less: (a) any shipping and\nhandling charges associated with the sale, (b) any sales taxes associated with\nthe sale, (c) any rebates associated with the sale and (d) any Qualifying\nRevenues which are attributable to returned products and which have previously\nbeen included in Qualifying Revenues.\n\n     1.24  \"RETURN ICON\" is defined in Section 2.2 of this Agreement.\n\n     1.25  \"SESSION\" means each instance in which a user accesses the CDnow Site\nvia a hypertext link embedded in any link, advertisement or other promotional\nplacement provided by GeoCities under this Agreement, and then views one or more\nconsecutive CDnow Site pages. A Session terminates when the user exits the CDnow\nSite by any means.\n\n     1.26  \"URL\" means Uniform Resource Locator.\n\n     1.27  \"VIEWER\" means any user of the GeoCities Site who executes a link and\nis connected to the CDnow Site.\n\nSECTION 2. LINKAGE\n\n     2.1   (A)  The CDnow graphic or other visual cues depicted on the attached\nExhibit A and associated with one or more URLs, which may include CDnow's Marks\nand\/or other indicia of origin (the \"CDnow Icons\") shall be included among the\nGeoCities Basic Commerce Platform hyperlink icons during the Term.  When clicked\nupon by a Viewer, the \n\n                                       3\n\n \nCDnow Icon will directly link the Viewer with the CDnow Site. GeoCities shall\nimplement the link between the CDnow Icon and the CDnow Site.\n\n\n           (B)  CDnow shall furnish GeoCities with full color representations of\nthe CDnow Icons at least ten (10) business days prior to the Commencement Date\nfor GeoCities' use under this Agreement. If CDnow subsequently modifies one or\nmore of the CDnow Icons or the URLs associated with the CDnow Icons, it shall\nfurnish a representation of same to GeoCities which GeoCities shall substitute\nfor the prior version within twenty (20) business days after receipt.\n\n           (C)  During the initial term of this Agreement, GeoCities agrees that\nCDnow is one of the Key Commerce Partners for the GeoCities Basic Commerce\nPlatform that will occupy premier positions on such platform, and CDnow will be\ndisplayed and promoted in a manner no less commensurate with the display and\npromotion of the other Key Commerce Partners on the GeoCities Basic Commerce\nPlatform.\n\n           (D)  GeoCities further agrees that it will display the CDnow Icons in\na manner no less commensurate with its display of other vendor hyperlink icons\nwithin the GeoCities Basic Commerce Platform.\n\n     2.2   The GeoCities graphic or other visual cue depicted on the attached\nExhibit A and associated with a single URL, which may include GeoCities' Marks\nand\/or other indicia of origin (the \"Return Icon\") shall be displayed by CDnow\non each page of the CDnow Site viewed by a Viewer during the Term (starting when\nCDnow provides this capability) in the position within the page layout as shown\non Exhibit A. When clicked upon by a Viewer, the Return Icon will directly link\nthe Viewer with a specific URL in the GeoCities Basic Commerce Platform. CDnow\nshall create the link on the CDnow Site between the Return Icon and the\nGeoCities Basic Commerce Platform. GeoCities shall furnish CDnow with full color\nrepresentations of the Return Icon at least ten (10) business days prior to the\nCommencement Date for CDnow's use under this Agreement. If GeoCities\nsubsequently modifies the Return Icon, it shall furnish a representation of same\nto CDnow which CDnow shall substitute for the prior version within twenty (20)\nbusiness days after receipt. The Return Icon shall be visible at the CDnow Site\nonly to Viewers who link to the CDnow Site via the GeoCities Basic Commerce\nPlatform and to no other visitors at the CDnow Site.\n\n     2.3   CDnow shall ensure that the version of the CDnow Site viewed by\nViewers who link to the CDnow Site through the GeoCities Basic Commerce Platform\nshall be substantially similar to the CDnow Site viewed by non-Viewers except\nfor CDnow co-branded sites with third parties, the Return Icon and as elsewhere\nprovided for in this Agreement.\n\nSECTION 3. PROMOTIONAL PLACEMENTS\n\n     The promotional placements are specified in Exhibit B to this Agreement.\n\n                                       4\n\n \nSECTION 4. PARTICIPATION IN STRATEGIC PROGRAMS\n\n     The terms of participation in strategic programs are specified in Exhibit B\nto this Agreement.\n\nSECTION 5. COMPENSATION\n\n     5.1   As full consideration for GeoCities' performance under this Agreement\n(including, without limitation, GeoCities' provision of all links,\nadvertisements and promotions specified in Sections 2, 3 and 4), CDnow will pay\nGeoCities the fixed placement fees and variable incentive payments specified in\nthis Section 5.\n\n     5.2   During the initial term of this Agreement (as specified in Section\n11.1 below), CDnow will pay GeoCities a fixed placement fee of [***] Dollars\n($[***]) on the Commencement Date and [***] of the Commencement Date.\n\n     5.3   For each [***] that occurs subsequent to the Commencement Date during\nthe term of this Agreement (including any renewal term), CDnow will pay\nGeoCities the applicable percentage(s) of Qualifying Revenues set forth opposite\nfrom the range of Qualifying Revenues occurring in the first column of the table\nbelow.\n\n\n               CUMULATIVE REVENUES               REVENUE          SHARE\n                     [***]                      PERCENTAGE\n \n           $  [***]                               [***]%\n \n \n     5.4   For each Homesteader Page that (a) participates in the Cosmic Credit\nProgram during the term of this Agreement and (b) within the [***] following the\nHomesteader Page's entering the Cosmic Credit Program, is responsible for at\nleast $[***] in Qualifying Gross Revenue to CDnow as a result of its\nparticipation in the Cosmic Credit Program, CDnow will pay GeoCities a one-time\nbounty of $[***]. This provision will survive the expiration or termination of\nthis Agreement with respect to those Homesteader Pages that join the Cosmic\nCredit Program within twelve (12) months prior to such expiration or\ntermination.\n\n     5.5   With the exception of the fixed placement fee set forth in Section\n5.2, CDnow will make payments under this Section 5 on a [***] basis, in arrears.\nSpecifically, within thirty (30) days following the end of each [***] occurring\nsubsequent to the Commencement Date, CDnow will pay GeoCities an amount equal to\nthe revenue share that accrued during such [***] pursuant to Section 5.3 and any\nbounties payable pursuant to Section 5.4.\n\n[***] Confidential treatment requested for redacted portion.\n\n                                       5\n\n \n     5.6   CDnow will deliver, together with each payment made pursuant to\nSection 5.5, a written report signed by an authorized representative of CDnow\nthat describes (in reasonable detail) CDnow's calculation of the payment amount.\n\n     5.7   (A)  GeoCities shall have the right, no more frequently than once\nduring the initial term and each renewal term, at its expense, upon thirty (30)\ndays advance written notice to CDnow and during CDnow's normal business hours,\nto have an independent certified public accountant inspect and audit the books\nand records of CDnow directly associated with CDnow's obligations to make\npayments under this Agreement, for the purpose of verifying any payments due to\nGeoCities under this Agreement. Any information obtained as a result of such\naudit shall be the Confidential Information of CDnow, and GeoCities may use such\ninformation only for the purpose of and only in such way as necessary for\ncollecting any amounts due it under this Agreement. In the event any shortfall\nin payment to GeoCities is found which exceeds ten percent (10%) of the total\ndue GeoCities for the reporting period audited, then CDnow shall promptly pay\nGeoCities the shortfall amount and reimburse GeoCities for all reasonable costs\nof the audit.\n\n           (B)  CDnow shall have the right, no more frequently than once during\nthe initial term and each renewal term, at its expense, upon thirty (30) days\nadvance written notice to GeoCities and during GeoCities' normal business hours,\nto have an independent certified public accountant inspect and audit the books\nand records of GeoCities directly associated with GeoCities' obligations under\nthis Agreement, for the purpose of verifying GeoCities' satisfaction of such\nobligations. Any information obtained as a result of such audit shall be the\nConfidential Information of GeoCities, and CDnow may use such information only\nfor the purpose of and only in such way as necessary for CDnow to enforce its\nrights under this Agreement. In the event GeoCities' fails to meet any\nobligations by more than ten percent (10%) of the total requirement of such\nobligations as set forth in this Agreement, then Geo Cities shall promptly pay\nCDnow all reasonable costs of the audit.\n\nSECTION 6. IMPLEMENTATION\n\n     6.1   GeoCities and CDnow acknowledge that time is of the essence in the\ndesign, 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     6.2   GeoCities, in cooperation with CDnow, will test the links,\nadvertisements and promotional placements required under this Agreement prior to\nthe time 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)\nand will continue to test such links, advertisements and promotional placements\nas is reasonable and necessary during the term of this Agreement to ensure that\nthey function properly and as specified under this Agreement. The Parties will\nmutually agree when the program of links, advertisements and promotional\nplacements will go live on the GeoCities Site.\n\n                                       6\n\n \n     6.3   GeoCities will not cause any link, advertisement or promotional\nplacement under this Agreement to go live on the GeoCities Site prior to the\napplicable date agreed by the Parties. Further, at CDnow's discretion, traffic\nfrom promotional links and advertising placements will be enabled in stages;\nprovided, however, that such staging will not delay the Commencement Date.\n\nSECTION 7. TRAFFIC DATA\n\n     7.1   On a monthly basis, GeoCities will provide CDnow with a report in a\nform and via a distribution method mutually agreeable to the Parties concerning\nsearch and browsing behavior on the GeoCities Site, to the extent such behavior\nreasonably could relate to the online promotion or sale of Music or Video\nProducts, or other products that CDnow may sell from time to time. CDnow will\nhold such data in confidence and will use it only in accordance with reasonable\nguidelines to be mutually agreed upon by the Parties. Notwithstanding anything\nto the contrary contained in this Section 7.1, GeoCities will not be required to\ndeliver to CDnow any user data in violation of its then-existing policies\nregarding the protection of user information.\n\n     7.2   CDnow will provide GeoCities with a report at least once per month of\norders for CDnow's products submitted by GeoCities' users in a form and via a\ndistribution method mutually agreeable to the Parties. Such report is to be used\nby GeoCities to actively track performance of various promotional tools that it\nhas in service. GeoCities will hold such data in confidence and will use it only\nin accordance with reasonable guidelines to be agreed by the Parties.\nNotwithstanding anything to the contrary contained in this Section, CDnow will\nnot be required to deliver to GeoCities any data in violation of its then-\nexisting privacy policies or policies regarding the protection of actual sales\ninformation.\n\n     7.3   GeoCities will provide CDnow with a weekly report of Impressions\ndelivered to users of the GeoCities Site during the immediately preceding week\nin a form and via a distribution method media mutually agreeable to the Parties.\nSuch report is to be used for CDnow to actively track whether GeoCities is\nfulfilling its obligations under this Agreement.\n\nSECTION 8. EXCLUSIVITY AND MEDIA GUARANTEE\n\n     8.1   [***]\n\n     8.2   GeoCities shall be allowed to sell limited quantities of Music or\nVideo Products through its GeoStore, though the GeoStore shall not offer more\nthan [***] separate Music or Video Products at any point in time and such Music\nor Video Products shall not be sold through a Competitor. Participants in the\nGeoCities GeoShops Program shall be allowed to sell products in the category of\nMusic or Video Products on the GeoCities Site.\n\n     8.3   To preserve the benefits provided to CDnow under this Agreement in\nthe event that GeoCities enters into any merger, acquisition, transfer of\ncontrol, sale of substantial assets or similar transaction with any Competitor,\nCDnow shall have the right to terminate this Agreement upon thirty (30) days'\nwritten notice.\n\n\n[***] Confidential treatment requested for redacted portion.\n\n                                       7\n\n \n     8.4   GeoCities represents and warrants that (a) it will continue to expend\nat least the same amount of resources (e.g., budget, staff) as it is currently\ncommitting as of the time of execution of this Agreement for both the pages in\nwhich the Impressions appear, the GeoCities Site and the GeoCities Basic\nCommerce Platform generally; and (b) it will not develop or promote any space on\nand\/or linked from the GeoCities Site which functions in a substantially similar\nmanner to or provides the user with a substantially similar experience as the\nGeoCities Basic Commerce Platform and which provides a substantially similar\nlevel of integration throughout the GeoCities Site as the GeoCities Basic\nCommerce Platform and which would contain any Competitor's advertising or\npromotions for the category of Music or Video Products. If Geo Cities fails or\ndetermines not to meet the representations and warranties set forth in this\nSection 8.4, then CDnow shall have the right to terminate this Agreement upon\nthirty (30) days' written notice.\n\n     8.5   As a result of the deployment of the CDnow Icons on the GeoCities\nSite, GeoCities will deliver a guaranteed minimum number of Impressions of at\nleast [***]. For purposes of this Agreement, \"IMPRESSIONS\" means a user's\nviewing of the CDnow ICON on a page on the GeoCities Site.\n\n     8.6   If GeoCities fails to deliver the required minimum number of\nImpressions in any given month during the initial term or the then current\nrenewal term, then GeoCities shall, within ten (10) days of the month following\nthe month in which GeoCities failed to deliver such minimum, make good the\nshortfall from the prior month by using its best efforts to deliver additional\nImpressions equal to the number of the prior month's shortfall (the \"MAKE GOOD\nAMOUNT\") by providing CDnow with additional advertising and promotional\nopportunities at [***] to CDnow, with such additional advertising and\npromotional opportunities to be promptly, mutually agreed upon in good faith by\nthe Parties.\n\nSECTION 9. INDEMNIFICATION\n\n     9.1   CDnow will defend and indemnify GeoCities and its Affiliates (and\ntheir respective employees, directors and representatives) against any claim or\naction brought by a third party, to the extent relating to (a) the operation of\nthe CDnow Site, or (b) the violation of third-party intellectual property rights\nby any editorial content or other materials provided by CDnow for display on the\nGeoCities Site. Subject to GeoCities' compliance with the procedures described\nin Section 9.3, CDnow will pay any award against GeoCities or its Affiliates (or\ntheir respective employees, directors or representatives) and any costs and\nattorneys' fees reasonably incurred by GeoCities and its Affiliates resulting\nfrom any such claim or action.\n\n     9.2   GeoCities will defend and indemnify CDnow and its Affiliates (and\ntheir respective employees, directors and representatives) against any claim or\naction brought by a third party, to the extent relating to (a) the operation of\nthe GeoCities Site, or (b) the violation of any third-party intellectual\nproperty rights by any editorial content or other materials provided by\nGeoCities for display on the CDnow Site. Subject to CDnow's compliance with the\nprocedures described in Section 9.3, GeoCities will pay any award against CDnow\nor its Affiliates (or their respective employees, directors or representatives)\nand any costs and attorneys' fees reasonably incurred by CDnow and its\nAffiliates resulting from any such claim or action.\n\n\n[***] Confidential treatment requested for redacted portion.\n\n                                       8\n\n \n     9.3    In connection with any claim or action described in this Section,\nthe Party 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 10. INTELLECTUAL PROPERTY RIGHTS\n\n     10.1   Subject to the limited license granted to GeoCities under Section\n10.2, CDnow reserves all of its ownership rights, title and interest in its\nIntellectual Property Rights. Subject to the limited license granted to CDnow\nunder Section 10.3, GeoCities reserves all of its ownership rights, title and\ninterest in its Intellectual Property Rights. Neither Party grants any license\nto any of the Party's Intellectual Property Rights to the other Party except as\nspecifically set forth in this Section 10. For purposes of this Agreement,\n\"Intellectual Property Rights\" means all forms of intellectual property rights\nand protections) including, without limitation, all right, title and interest in\nand to all: (a) letters patent and all filed, pending or potential applications\nfor letters patent, including any reissue, reexamination, division, continuation\nor continuation-in-part applications throughout the world now or hereafter filed\nor issued; (b) trade secrets, and all trade secret rights and equivalent rights\narising under the common law, state law, federal law and laws of foreign\ncountries; (c) mask works, copyrights, other literary property or authors'\nrights, whether or not protected by copyright or as a mask work, under common\nlaw, state law, federal law and laws of foreign countries; and (d) Marks.\n\n     10.2   CDnow hereby grants to GeoCities, during the term of this Agreement,\na non-exclusive, non-transferable license to use CDnow's Marks as reasonably\nnecessary to perform its obligations under this Agreement; provided, however,\nthat any promotional materials containing CDnow's Marks will be subject to\nCDnow's prior written approval.\n\n     10.3   GeoCities hereby grants to CDnow, during the term of this Agreement,\na non-exclusive, non-transferable license to use GeoCities' Marks as reasonably\nnecessary to perform its obligations under this Agreement; provided, however,\nthat any promotional materials containing GeoCities' Marks will be subject to\nGeoCities' prior written approval.\n\n     10.4   Neither GeoCities nor CDnow will use the other Party's Marks in a\nmanner that disparages the other Party, its Marks or its products or services,\nor portrays the other Party, its Marks or its products or services in a false,\ncompetitively adverse or poor light. Each of GeoCities and CDnow will comply\nwith the other Party's requests as to the use of the other Party's Marks and\nwill avoid any action that diminishes the value of such Marks. Either Party's\nunauthorized use of the other's Marks is strictly prohibited. Each Party's use\nof the other Party's Marks and any and all goodwill associated therewith or that\nmay accrue as a result of such use will inure solely to the benefit of the other\nParty (the owning Party).\n\n                                       9\n\n \nSECTION 11. TERM AND TERMINATION\n\n     11.1   The initial term of this Agreement will begin on the date of this\nAgreement and will end [***] following the Commencement Date.\n\n     11.2   (A)  CDnow will have the option to renew the term of this Agreement\nfor a single [***] renewal term beginning on the expiration of the initial term\nby giving GeoCities written notice (indicating CDnow's exercise of its option to\nrenew the term of this Agreement) at least thirty (30) days prior to the\nexpiration of the initial term.\n\n            (B)  During such renewal term, all terms and conditions of this\nAgreement, except Section 11.2(a), will remain in full force and effect;\nprovided, however, that the fixed placement fees payable pursuant to Section 5.2\nwill be increased (or decreased as the case may be) in the renewal term [***].\n\n     11.3   Either Party may terminate this Agreement if the other Party (a)\nmaterially breaches this Agreement and does not cure the breach within thirty\n(30) days following its receipt of written notice from the non-breaching Party,\nor (b) ceases to carry on the portion of its business that relates to this\nAgreement. In the event that CDnow terminates this Agreement pursuant to the\nterms of this Section 11.3, CDnow's obligation to make any further payments not\nyet accrued under this Agreement will be eliminated.\n\n     11.4   Sections 1, 9, 10.1, 12 and 13 (together with all other provisions\nthat reasonably may be interpreted as surviving termination or expiration of\nthis Agreement) will survive the termination or expiration of this Agreement.\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 CDNOW MAY RECEIVE DURING THE TERM, AND (B) ANY ECONOMIC OR\nOTHER BENEFIT THAT CDNOW MIGHT OBTAIN THROUGH ITS PARTICIPATION IN THIS\nAGREEMENT.\n\n[***] Confidential treatment requested for redacted portion.\n\n                                       10\n\n \n     12.2   EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, CDNOW DOES NOT MAKE,\nAND HEREBY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES REGARDING THE CDNOW\nSITE, CDNOW'S SERVICES OR ANY PORTION THEREOF, INCLUDING (WITHOUT LIMITATION)\nIMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.\nWITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CDNOW SPECIFICALLY DISCLAIMS\nANY REPRESENTATION OR WARRANTY REGARDING (A) THE AMOUNT OF SALES REVENUES THAT\nMAY OCCUR DURING THE TERM, AND (B) ANY ECONOMIC OR OTHER BENEFIT THAT GEOCITIES\nMIGHT OBTAIN THROUGH ITS PARTICIPATION IN THIS AGREEMENT.\n\n     12.3   NEITHER CDNOW 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 9 OR RESULTING FROM THE\nPARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT), WHETHER IN CONTRACT OR TORT,\nWILL NOT EXCEED THE AMOUNTS TO BE PAID BY CDNOW UNDER SECTION 5.\n\n     12.4   CDnow will remain solely responsible for the operation of the CDnow\nSite, and GeoCities will remain solely responsible for the operation of the\nGeoCities Site. Each Party: acknowledges that the CDnow Site and the GeoCities\nSite may be subject to temporary shutdowns due to causes beyond the operating\nParty's reasonable control; and (b) subject to the specific terms of this\nAgreement, retains sole right and control over the programming, content and\nconduct 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 or in the other's name.\n\n     13.2   Each Party agrees that the Confidential Information of the other\nParty will be held in confidence to the same extent and the same manner as each\nParty protects its own Confidential Information, but each Party agrees that in\nno event will less than reasonable care be used. Each Party shall, however, be\npermitted to disclose relevant aspects of such Confidential Information to its\nofficers, employees and consultants on a need-to-know basis for the purpose of\nsuch Party's performance of its obligations under this Agreement, provided such\npersons agree to protect the other party's Confidential Information to the same\nextent as required under this Agreement. Each Party agrees to use all reasonable\nsteps to ensure that the other Party's Confidential Information received under\nthis Agreement is not disclosed in violation of this paragraph. For purposes of\nthis Agreement, \"CONFIDENTIAL INFORMATION\" means the terms of this Agreement,\nexcept as otherwise specifically provided in this Agreement; each Party's trade\nsecrets, financial information, processes, formulas, specifications, programs,\ninstructions, source code, technical know-how, methods and procedures for\noperation, benchmark test results, information about employees, customers,\nmarketing strategies, services, business or technical plans and proposals,\n\n                                       11\n\n \nin any form; and any other information relating to either Party that is not\ngenerally known to the public at large.\n\n     GeoCities agrees that it shall not be deemed a breach of this Agreement for\nCDnow to disclose the terms and conditions of this Agreement in any regulatory\nfiling with the Securities &amp; Exchange Commission, which CDnow in good faith\ndetermines is required, provided CDnow seeks confidential treatment of the\nmaterial financial terms and conditions of this Agreement.\n\n     Confidential Information shall not include information that (a) is or\nbecomes generally known or available to the public at large through no negligent\nact or omission of either Party; (b) can be demonstrated to have been available\nlawfully to either Party prior to the disclosure or had thereafter been\nfurnished to either Party without restrictions to disclosure or use; or (c) can\nbe demonstrated to be independently developed by the recipient of Confidential\nInformation without use of such Confidential Information and such independent\ndevelopment is proven on the basis of either Party's records related to such\ndevelopment.\n\n     13.3  Following the execution of this Agreement, CDnow and GeoCities will\nprepare and distribute a joint press release (or coordinated press releases)\nannouncing the transaction.  The contents and timing of the release (or\nreleases) shall be as mutually agreed by the Parties. Neither Party will issue\nany further press releases or make any other disclosures regarding this\nAgreement or its terms without the other Party's prior written consent or except\nas may be required by law in the opinion of the Party's counsel.\n\n     13.4  In its performance of this Agreement, each Party will comply with all\napplicable laws, regulations, orders and other requirements, now or hereafter in\neffect, of governmental authorities having jurisdiction.  Without limiting the\ngenerality of the foregoing, each Party will pay, collect and remit such taxes\nas may be imposed upon it with respect to any compensation, royalties or\ntransactions 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  Neither CDnow nor GeoCities will be liable for, or will be considered\nto be in breach of or default under this Agreement on account of, any delay or\nfailure to perform as required by this Agreement as a result of any causes or\nconditions that are beyond such Party's reasonable control and that such Party\nis unable to overcome through the exercise of commercially reasonable diligence.\nIf any force majeure event occurs, the affected party will give prompt written\nnotice to the other Party and will use commercially reasonable efforts to\nminimize the impact of the event.\n\n     13.6  Notices deliverable under this Agreement shall be given in writing,\naddressed to the Parties set forth below and shall be deemed to have been given\neither one (1) day after being given to an express overnight carrier with a\nreliable system for tracking delivery; or when sent by a confirmed facsimile\nwith another copy sent by any other means specified in this paragraph; or three\n(3) business days after having been mailed postage prepaid by United States\nregistered or certified mail, return receipt requested:\n\n                                       12\n\n \nFor notices to CDnow:                        For notices to GeoCities:\n \nName: Rod Parker                             James A. Rea\n\nTitle: Senior Vice President, Marketing      Vice President Business Development\n \nAddress:  Jenkins Court, Suite 310           1918 Main Street, 3rd Floor\n          610 Old York Road\n \nCity:  Jenkintown PA 19046                   Santa Monica, CA 90405-1030\n \nFacsimile: (215) 517-4499                    Facsimile: (310) 664-6520\n\nwith a copy to the CDnow General Counsel\n\n     13.7  If any litigation is commenced to enforce any provision of this\nAgreement or to seek a declaration of rights of the Parties hereunder or as a\nresult of any breach of any provision of this Agreement, the prevailing Party\nwill be entitled to recover from the non-prevailing Party all of its costs and\nexpenses incurred in connection with such litigation, including without\nlimitation reasonable attorneys' fees.\n\n     13.8  Neither CDnow nor GeoCities may assign this Agreement, in whole or in\npart, without the other Party's prior written consent (which will not be\nwithheld unreasonably), except to (a) any corporation resulting from any merger,\nconsolidation or other reorganization involving the assigning Party, (b) any of\nits Affiliates, or (c) any individual or entity to which the assigning Party may\ntransfer substantially all of its assets; provided that the assignee agrees in\nwriting to be bound by all the terms and conditions of this Agreement.  Subject\nto the foregoing, this Agreement will be binding on and enforceable by the\nParties and their respective successors and permitted assigns.\n\n     13.9  If any provision of this Agreement is declared null, void or\notherwise unenforceable, such provision will be deemed to have been severed from\nthis Agreement to the minimal extent if necessary, which Agreement will\notherwise be and remain in full force and effect to its remaining provisions.\n\n     13.10 This Agreement (a) represents the entire agreement between the\nParties with respect to the subject matter hereof and supersedes any previous or\ncontemporaneous oral or written agreements regarding such subject matter and (b)\nmay be amended or modified only by a written instrument signed by a duly\nauthorized agent of each Party. If any provision of this Agreement is held to be\ninvalid, such invalidity will not effect the remaining provisions.\n\n     13.11 This Agreement may be executed in any number of counterparts, each of\nwhich shall be an original and all of which shall constitute together one and\nthe same document.\n\n                                       13\n\n \n     IN WITNESS WHEREOF, the Parties have executed this Agreement on the date\nfirst written above by their duly authorized representatives.\n\n\n                                     CDnow                                     \n                                     \n                                     By: \/s\/ Jason Olim                        \n                                         ---------------------------------------\n                                          Jason Olim                          \n                                     Its:  President and Chief Executive Officer\n                                     \n                                     Jenkins Court, Suite 310                  \n                                     610 Old York Road                         \n                                     Jenkintown, PA 19046                      \n                                     Facsimile: (215) 517-4399                 \n                                     Attention: Jason Olim                     \n                                     \n                                     \n                                     GEOCITIES                                 \n                                         \n                                     By: \/s\/ James A. Rea                      \n                                         ---------------------------------------\n                                          James A. Rea                         \n                                     \n                                     Its:  Vice President Business Development \n                                     \n                                     1918 Main Street, 3rd Floor               \n                                     Santa Monica, California 90405            \n                                     Facsimile: (310) 664-6520                 \n                                     Attention:  James A. Rea                   \n\n                                       14\n\n \nEXHIBIT A\n\nCDnow ICON\n\nHome page image:\n\nA Graphic depicting a CDnow logo plus tag line (World's Largest Music Store) to\nbe no less than [***]. CDnow's presence shall be no less than the presentation\nof any other key commerce partner.\n\n     Example of a CDnow Logo:\n\n\n\nNeighborhood Home Page\n\nA Graphic with CDnow Icon (promotional message Product shot or other CDnow\ngraphical element) with a text message above the graphic promoting CDnow and two\nindividually hyperlinked text messages below the graphic that can be linked to\nunique CDnow pages. CDnow's presence shall be no less than the presentation of\nany other key commerce partner.\n\nImage  to be no less than [***] or [***]\n\nFor example:\n\n\n\n  [Picture of Logos]\n\n\n\n\n[***] Confidential treatment requested for redacted portion.\n\n                                       15\n\n \nTopic Pages:\n\nCDnow branded text message plus CDnow logo with at least two hyperlinked text\nmessages that can be linked to unique CDnow pages. CDnow's presence shall be no\nless than the presentation of any other key commerce partner.\n\nFor Example:\n\n\n\nRETURN ICON SPECIFlCATIONS\n\n\nSize\n\nTotal Carry-through Bar Size: [***] as of April 1, 1997 all Carry-through Bar\nsizes must be [***] to comply with the Internet Advertising Bureau's (IAB)\nbanner standards.\n\nLive area for Partner Logo:  [***]\n\n\n \n\nTiming\n\nCDnow requires a minimum of five business days from when we receive the Carry-\nthrough bar to implement it on our site.\n\n\n\nCarry-through Bar Samples\n\n\n\n[***] Confidential treatment requested for redacted portion.\n\n                                       16\n\n \nColor\n\nBar is black at all times.\nOnly partner logos\/icons can be as many colors as desired with a black\nbackground\n\"Return to...\" copy is mandatory and must be set up as white Helvetica Neue\nBlack 10pt type, centered and 5 pixels in from the left-hand side of the first\nblack bar\n\nWe recommend all copy to be white\n\nTo pick up a template go to http:\/\/cdnow.com\/cobrand template\n\nFormat\n\nMust be saved in a GIF file format\n\nPlacement\n\nCarry-through bar is placed on the top and bottom of each CDnow page.  Only\nthose people who visit CDnow from your site will see the Carry-through bar\n\nURL\/Address\n\nPartners have the option of 1 to 3 links on their Carry-through bar  The URLs\nwill be provided by the partner\n\nIf more than one link is desired, the bar must consist of multiple gif images\nthat reference previous Carry-through bar specifications.  When using multiple\ngif images keep two pixels between each bar.  No image maps are permitted.\nPlease see the following page for more examples of possible banner solutions.\n\n\n\nSource Code\n\nCDnow will provide the partner with a from equals(from=) tag.  This tag allows\nus to identify customers coming from the Partners site to CDnow.\n\n                                       17\n\n \n                                   EXHIBIT B\n          Promotion Placements and Participation in Strategic Programs\n\nStaged Deployment of CDNOW Promotion on GeoCities\n\nSTATE I\n\nTarget Start Date top bed Implemented as Soon as Possible After Signing\nAgreement:\n\n1)  Main GeoCities Home Page;\n\n2)  Each GeoCities Neighborhood Homepage (currently 39 and growing);\n\n3)  Each Neighborhood Topic Page (currently between 500 and 600);\n\n4)  Experimentation with Popups and\/or Interstitials;\n\n5)  Announcement of Relationship in World Report (using a reasonable\nannouncement that is editorially appropriate);\n\n6)  Experimentation with Inclusion in New Member Welcome Package (Welcome\nWagon); and\n\n7)  Banners.\n\nSTAGE II\n\nGeoCities will make best efforts to implement within two months of the\nCommencement Date.\n\n1)  Offer Cosmic Credit Program for Homesteaders;\n\n2)  Incentive Program for Homesteaders to Host CDnow Sponsored Chat on their\nHomepages;\n\n3)  Experimentation with Targeted Product Offerings within GeoCities Chat\nSessions; and\n\n4)  Senior Positioning in GeoCities Marketplace.\n\nSTAGE III\n\nGeoCities to make best efforts to implement within three months of the\nCommencement Date.  Experimentation with various concepts and deploying those\nwhich appear to provide successful results including:\n\n1)  Product Offers on Search Result Pages;\n\n                                       18\n\n \n2)  Product Offers on Interest Pages;\n\n3)  Product offers within Instant Messaging; and\n\n4)  Greeting Card\/Gift Certificate Offers.\n\n                                       19\n\n \n                                   EXHIBIT C\n\n                  Competitors in Music and\/or Video Categories\n\nPursuant to Section 1.7(a) of the Agreement, Competitor includes (i) [***] and\nany other online music retail sites sponsored or promoted by [***]; (ii) [***],\nincluding, without limitation, [***]; (iii) any online music store sponsored or\npromoted buy a record label; (iv) [***]; and (v) any online music store\nsponsored or promoted by [***], [***] or [***].\n\n\n[***] Confidential treatment requested for redacted portion.\n\n                                       20\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7037],"corporate_contracts_industries":[9497],"corporate_contracts_types":[9613,9619],"class_list":["post-41993","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-cdnow-inc","corporate_contracts_industries-retail__electronics","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\/41993","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=41993"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41993"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41993"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41993"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}