{"id":41994,"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-egghead-inc-and-geocities.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"advertising-agreement-egghead-inc-and-geocities","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/advertising-agreement-egghead-inc-and-geocities.html","title":{"rendered":"Advertising Agreement &#8211; Egghead Inc. and GeoCities"},"content":{"rendered":"<pre>\n                             ADVERTISING AGREEMENT\n                                        \n\n     This Advertising Agreement (this \"Agreement\"), dated as of December 15,\n1997, is made by and between Egghead, Inc., a Washington corporation (\"SDE\");\nand GeoCities, a California corporation (\"GeoCities\"). SDE and GeoCities\nsometimes are referred to collectively as the \"Parties\" and individually as a\n\"Party\". In consideration of the mutual promises contained in this Agreement,\nSDE 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\nis designed 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     \"SDE SITE\" means, collectively, all points of presence and\/or\nservices maintained by SDE or its Affiliates on the Internet or on any other\npublic data network.\n\n     1.4     \"GEOCITIES SITE\" means, collectively, and subject to the\nlimitations set forth in the following sentences of this Section 1.4, all points\nof presence and\/or services maintained by GeoCities on the Internet as www.\ngeocities.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\nsole discretion, that the inclusion of any such co-branded or outsourced\ncommunities does not in any way conflict with or violate any such agreement with\na third party, or any agreements or other arrangements that such third party may\nhave with any other party. If GeoCities makes such a determination, it shall\nnotify SDE of such determination, and the co-branded or outsourced community in\nquestion shall thereupon become part of the \"GeoCities Site.\"\n\n     1.5     \"GEOCITIES BASIC COMMERCE PLATFORM\" means the collection of links,\nadvertisements and promotional placements associated with the GeoCities' Site.\n\n     1.6     \"VIEWER\" means any user of the GeoCities Site who executes a link\nand is connected to the SDE Site.\n\n \n     1.7     \"COMMENCEMENT DATE\" means the date GeoCities first provides SDE\nwith all links, advertisements and other promotional placements required under\nStage IA described in the attached Exhibit B to this Agreement.\n\n     1.8     \"COMPETITOR\" means (a) any of the entities listed on Exhibit C, or\n(b) any individual, corporation, corporate division, retail site, World Wide Web\nsite or other entity that either derives more than [***] of its annual gross\nrevenues from the retail sale of computer hardware or software, or is primarily\nknown as a retailer of computer hardware or software. For purposes of this\nSection 1.8, any commercial homepage participating in GeoCities' GeoShops\nprogram and any company who manufactures and also engages in direct selling of\ncomputer hardware or software programs shall not be construed to be a\nCompetitor. For purposes of this Agreement, the term computer hardware and\nsoftware shall be construed to include computer peripherals and accessories.\n\n     1.9     \"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     1.10    \"SESSION\" means each instance in which a user accesses the SDE 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 SDE Site pages. A Session terminates when the user exits the SDE\nSite by any means.\n\n     1.11    \"QUALIFYING GROSS MARGIN REVENUES\" means, with respect to any\nmonthly period, the aggregate gross revenues resulting from Sessions less (a)\nany direct costs of goods sold, and less (b) any shipping costs associated with\nthe sale, and less (c) any credit card service charges associated with the sale\nand less (d) any sales taxes associated with the sale, and less (e) any Gross\nMargin Revenues which are attributable to returned products which have\npreviously been included in Gross Margin Revenues.\n\n     1.12    \"EXCLUSIVE AREAS\" means the GeoCities neighborhood homepages and\nthe GeoCities neighborhood topic pages.\n\nSECTION 2.   LINKAGE\n\n     2.1     The graphic or other visual cue depicted on the attached Exhibit A,\nwhich may include names, trademarks, servicemarks, designmarks, symbols and\/or\nother indicia of origin (the \"SDE Icon\") shall be included among the GeoCities\nBasic Commerce Platform hyperlink icons during the Term. When clicked upon by a\nViewer, the SDE Icon will link the Viewer with the SDE Site. GeoCities shall\ncreate and maintain the link between the SDE Icon and the SDE Site. SDE shall\nfurnish GeoCities with full color representations of the SDE Icon at least ten\n(10) business days prior to the Deployment Date for GeoCities' use under this\nAgreement. GeoCities agrees that it will display the SDE Icon in a manner agreed\nto by the Parties and commensurate with its display of other vendor hyperlink\nicons within the GeoCities Basic Commerce Platform. If SDE subsequently modifies\nthe SDE Icon, it shall furnish a\n\n\n[***] Confidential treatment requested for redacted portion.\n\n \nrepresentation of same to GeoCities which GeoCities shall substitute for the\nprior version within twenty (20) business days after receipt.\n\n     2.2     The graphic or other visual cue depicted on the attached Exhibit A,\nwhich may include names, trademarks, servicemarks, designmarks, symbols and\/or\nother indicia of origin as agreed to by the Parties, (the \"Return Icon\") shall\nbe displayed by SDE on each page of the SDE Site viewed by a Viewer during the\nTerm in the position within the page layout as shown on Exhibit A. When clicked\nupon by a Viewer, the Return Icon will link the Viewer with the GeoCities Basic\nCommerce Platform which was the point of departure prior to linkage with the SDE\nSite. SDE shall create the link between the Return Icon and the GeoCities Basic\nCommerce Platform. GeoCities shall furnish SDE with full color representations\nof the Return Icon at least ten (10) business days prior to the Deployment Date\nfor SDE use under this Agreement. If GeoCities subsequently modifies the Return\nIcon, it shall furnish a representation of same to SDE which SDE shall\nsubstitute for the prior version within twenty (20) business days after receipt.\nThe Return Icon shall be visible at the SDE Site only to Viewers who link to the\nSDE Site via the GeoCities Basic Commerce Platform and to no other visitors at\nthe SDE Site.\n\n     2.3     SDE shall ensure that the version of the SDE Site viewed by Viewers\nwho link to the SDE Site through the GeoCities Basic Commerce Platform shall be\nsubstantially similar to the SDE Site viewed by non-Viewers except for SDE co-\nbranded sites with other companies, the Return Icon and as elsewhere provided\nfor in this Agreement.\n\nSECTION 3.   PROMOTIONAL PLACEMENTS\n\n     See Exhibit B.\n\nSECTION 4.   PARTICIPATION IN STRATEGIC PROGRAMS\n\n     See Exhibit B.\n\nSECTION 5.   COMPENSATION\n\n     5.1     As full consideration for GeoCities' performance under this\nAgreement (including, without limitation, GeoCities' provision of all links,\nadvertisements and promotions specified in Sections 2, 3 and 4), SDE will pay\nGeoCities the fixed placement fees and variable incentive payments specified in\nthis Section 5, and under certain circumstances, a Site Production Fee, as\ndescribed in Section 11.5.\n\n     5.2     During the initial term of this Agreement, SDE will pay GeoCities a\nfixed placement fee of [***] Dollars ($[***]) on the Commencement Date and at\nthe beginning of each [***] that occurs subsequent to the Commencement Date\nuntil the initial term ends in association with Section 11.1 hereof.\n\n\n[***] Confidential treatment requested for redacted portion.\n\n\n     5.3     During the term of this Agreement (including any renewal term),\nfor each [***] that occurs subsequent to the Commencement Date, SDE will pay\nGeoCities the applicable percentage(s) of Qualifying Gross Margin Revenues set\nforth opposite from the range of Qualifying Gross Margin Revenues occurring in\nthe first column.\n\n                                                            QUALIFYING GROSS\n              QUALIFYING GROSS MARGIN REVENUES              MARGIN REVENUE \n                           [***]                            SHARE PERCENTAGE\n\n                           [***]                                  [***]  \n\n\n\n\n\n\n\n\n\n\n     For example, if Qualifying Gross Margin Revenues equals $[***] in a given\n[***], then GeoCities' share of the Qualifying Gross Margin Revenues earned as a\nresult of this Section 5.3 would be computed as follows:\n\n                           [***]                  [***]       [***]\n\n                           [***]                  [***]       [***]\n\n                           [***]                  [***]       [***]\n         \n          Total share earned by GeoCities         [***]       [***]\n\n\n                                                    \n\n\n[***]  Confidential treatment requested for redacted portion.\n\n\n \n     5.4     SDE will make payments under this Section 5 on a [***] basis, in\narrears within thirty (30) days following the end of each [***] occurring\nsubsequent to the Commencement Date.\n\n     5.5     SDE organizes their accounting periods around 4 week and 5 week\nperiods that approximate monthly reporting periods. SDE will provide GeoCities\nwith a schedule of the [***] periods, which shall be used for purposes of\ndetermining [***] reporting periods for this Agreement.\n\n     5.6     SDE will deliver, together with each payment made pursuant to\nSection 5.4, a written report signed by an authorized representative of SDE that\ndescribes (in reasonable detail) SDE's calculation of the payment amount.\n\n     5.7     GeoCities shall have the right, no more frequently than once during\neach term, at its expense, upon thirty (30) days advance written notice to SDE\nand during SDE's normal business hours, to inspect and audit the books and\nrecords of SDE, by an independent certified public account, for the limited\npurpose of verifying any payments due to GeoCities under this Agreement. In the\nevent any shortfall in payment to GeoCities is found which exceeds ten percent\n(10%) of the total due GeoCities for the reporting period audited, then SDE\nshall promptly pay GeoCities the shortfall amount and reimburse GeoCities for\nall reasonable costs of the audit. The audit shall be limited to verification of\nover-payment or under-payment by SDE. In the event of SDE over-payment,\nGeoCities shall promptly remit any over-payment of fees to SDE.\n\nSECTION 6.   IMPLEMENTATION\n\n     6.1     GeoCities and SDE 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 SDE, 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).\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 SDE'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\n\n[***] Confidential treatment requested for redacted portion.\n\n \nSECTION 7.   TRAFFIC DATA\n\n     7.1     On a monthly basis, GeoCities will provide SDE with mutually agreed\ndata, in a form acceptable to SDE, concerning search and browsing behavior on\nthe GeoCities Site, to the extent such behavior reasonably could relate to the\nonline promotion or sale of computer hardware and software, or other products\nthat SDE may sell from time to time. SDE will hold such data in confidence and\nwill use it only in accordance with reasonable guidelines to be agreed by the\nParties.\n\n     7.2     SDE will use its best efforts to provide GeoCities with an online\nreport, produced on a daily basis, of orders for SDE's products submitted by\nGeoCities' users. Such report is to be used by GeoCities to actively track\nperformance of various promotional tools that it has in service. GeoCities will\nhold such data in confidence and will use it only in accordance with reasonable\nguidelines to be agreed by the Parties. Notwithstanding anything to the contrary\ncontained in this Section, SDE will not be required to deliver to GeoCities any\ndata in violation of its then-existing policies regarding the protection of\nactual sales information.\n\nSECTION 8.   EXCLUSIVITY AND MEDIA GUARANTEE\n\n     8.1     [***]\n     \n     8.2     GeoCities shall be allowed to sell limited quantities of computer\nhardware or software through its GeoStore, though the GeoStore shall not offer\nmore than a combination of twenty five (25) separate computer hardware or\nsoftware products at any point in time. GeoCities has an existing agreement with\nthe Internet Shopping Network, also doing business as First Auction, which\ngrants them the right to sell computer hardware and software within the\nGeoCities Marketplace until the expiration of the agreement on [***]. The\nInternet Shopping Network shall continue to be allowed to sell computer hardware\nand software within the GeoCities Marketplace until the expiration of the\naforementioned agreement, which agreement shall not be renewed by GeoCities.\n\n     8.3     To preserve the benefits provided to SDE 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,\nSDE may have the right to terminate this Agreement upon thirty (30) days'\nnotice.\n\n     8.4     As a result of the deployment of SDE's promotion on the GeoCities\nwebsite as described in Exhibit B of this Agreement, GeoCities will provide a\nguaranteed number of impressions of at least [***].\n\n\n[***] Confidential treatment requested for redacted portion.\n\n \nSECTION 9.   INDEMNIFICATION\n\n     9.1     SDE shall at all times indemnify and hold harmless GeoCities,\nincluding any director, officer, employee, agent or representative thereof (the\n\"Indemnified Parties\") from and against any and all claims, suits, losses,\ndamages, costs, expenses and liabilities of whatsoever nature or kind\n(including, but not limited to, attorneys' fees, litigation and court costs,\namounts paid in settlement, amounts paid to discharge judgment(s)) directly or\nindirectly resulting from, arising out of, or related to (a) the operation of\nthe SDE Site, or (b) the violation of third-party intellectual property rights\nby any editorial content or other materials provided by SDE for display on the\nGeoCities Site. Subject to GeoCities' compliance with the procedures described\nin Section 9.3, SDE 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 shall at all times indemnify and hold harmless SDE,\nincluding any director, officer, employee, agent or representative thereof (the\n\"Indemnified Parties\") from and against any and all claims, suits, losses,\ndamages, costs, expenses and liabilities of whatsoever nature or kind\n(including, but not limited to, attorneys' fees, litigation and court costs,\namounts paid in settlement, amounts paid to discharge judgment(s)) directly or\nindirectly resulting from, arising out of, or related 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 SDE Site. Subject to SDE's compliance with the\nprocedures described in Section 9.3, GeoCities will pay any award against SDE or\nits Affiliates (or their respective employees, directors or representatives) and\nany costs and attorneys' fees reasonably incurred by SDE and its Affiliates\nresulting from any such claim or action.\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, SDE reserves all of its right, title and interest in its intellectual\nproperty rights (e.g., patents, copyrights, trade secrets, trademarks and other\nintellectual property rights). Subject to the limited license granted to SDE\nunder Section 10.3, GeoCities reserves all of its right, title and interest in\nits intellectual property rights. Neither Party grants any license to the other\nexcept as specifically set forth in this Section 10.\n\n\n\n \n     10.2    SDE hereby grants to GeoCities, during the term of this Agreement,\na non-exclusive, non-transferable license to use SDE's trade names, trademarks,\nservice names and similar proprietary marks as is reasonably necessary to\nperform its obligations under this Agreement; provided, however, that any\npromotional materials containing SDE's proprietary marks will be subject to\nSDE's prior written approval.\n\n     10.3    GeoCities hereby grants to SDE, during the term of this Agreement,\na non-exclusive, non-transferable license to use GeoCities' trade names,\ntrademarks, 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     10.4    Neither GeoCities nor SDE will use the other Party's proprietary\nmarks in a manner that disparages the other Party or its products or services,\nor portrays the other Party or its products or services in a false,\ncompetitively adverse or poor light. Each of GeoCities and SDE will comply with\nthe other Party's requests as to the use of the other Party's proprietary marks\nand will avoid any action that diminishes the value of such marks. Either\nParty's unauthorized use of the other's proprietary marks is strictly\nprohibited.\n\nSECTION 11.  TERM AND TERMINATION\n\n     11.1    The term of this Agreement will begin on the date of this Agreement\nand will end [***] following the Commencement Date.\n\n     11.2    Within [***] prior to expiration of the term of this Agreement,\nGeoCities will provide to SDE written notification of the terms and conditions\nunder which GeoCities will renew this Agreement with SDE. GeoCities shall at\nthat time grant to SDE the exclusive option to accept the aforementioned terms\nand conditions within [***] of receipt of GeoCities' written notice\ncommunicating such terms and conditions to SDE and thereby renew this Agreement\nat its expiration under such new terms and conditions.\n\n     11.3    Either GeoCities or SDE may terminate this Agreement if the other\nparty (a) materially breaches this Agreement and does not cure the breach within\nthirty (30) days following its receipt of written notice from the non-breaching\nparty, or (b) ceases to carry on the portion of its business that relates to\nthis Agreement.  In the event that SDE terminates this Agreement pursuant to the\nterms of this Section 11.3, SDE's obligation to make any other payments under\nthis Agreement will be eliminated.\n\n     11.4    Sections 9, 12 and 13 (together with all other provisions that\nreasonably may be interpreted as surviving termination or expiration of this\nAgreement) will survive the termination or expiration of this Agreement.\n\n     11.5    At any time [***] or more after the Commencement Date, SDE shall\nhave the right to terminate this Agreement prior to its expiration upon\nproviding GeoCities with thirty (30) days prior written notice. In the event\nthat SDE elects to terminate this Agreement prior to its expiration, SDE will\npay a Site Production Fee as set forth below and after payment of such Site\nProduction Fee, SDE's obligation to make any other payments under this Agreement\n\n\n[***] Confidential treatment requested for redacted portion.\n\n \n     will be eliminated:\n\n             CUMULATIVE FIXED PLACEMENT\n              FEES PAID PRIOR TO OR AT\n               TIME OF TERMINATION                SITE PRODUCTION FEE PAYABLE\n\n                     [***]                                   [***]\n                     [***]                                   [***]\n                     [***]                                   [***]\n                     [***]                                   [***]\n\nSECTION 12.  DISCLAIMERS, LIMITATIONS AND RESERVATIONS\n\n     12.1    EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, GEOCITIES DOES\nNOT MAKE, 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 SDE MAY RECEIVE DURING THE TERM, AND (B) ANY ECONOMIC OR\nOTHER BENEFIT THAT SDE MIGHT OBTAIN THROUGH ITS PARTICIPATION IN THIS AGREEMENT.\n\n     12.2    EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, SDE DOES NOT\nMAKE, AND HEREBY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES REGARDING THE SDE\nSITE, SDE'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, SDE SPECIFICALLY DISCLAIMS ANY\nREPRESENTATION OR WARRANTY REGARDING (A) THE AMOUNT OF SALES REVENUES THAT MAY\nOCCUR 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 SDE 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 WILLFUL MISCONDUCT), WHETHER IN CONTRACT OR TORT, WILL NOT EXCEED THE\nAMOUNTS TO BE PAID BY SDE UNDER SECTION 5.\n\n\n[***] Confidential treatment requested for redacted portion.\n\n \n     12.4    SDE will remain solely responsible for the operation of the SDE\nSite, and GeoCities will remain solely responsible for the operation of the\nGeoCities Site. Each Party (a) acknowledges that the SDE 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 of 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, provided that they\nhave undertaken to protect the Confidential Information to the same extent as\nrequired under this Agreement. Each party agrees to use all reasonable steps to\nensure that the other party's Confidential Information received under this\nAgreement is not disclosed in violation of this paragraph. \"Confidential\nInformation\" means the terms of this Agreement, except as otherwise specifically\nprovided in the Agreement; each party's trade secrets, including but not limited\nto, 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, in\nany form; and any other information relating to either party that is not\ngenerally known to the public at large.\n\n     Confidential Information shall not include information that (1) is or\nbecomes generally known or available to the public at large through no negligent\nact or omission of either party; (2) 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 (3) 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, SDE 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 releases)\nshall be as mutually agreed by the Parties. Neither Party will issue any further\npress releases or make any other disclosures regarding this Agreement or its\nterms without 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 \n\n \npay, collect and remit such taxes as may be imposed upon it with respect to any\ncompensation, royalties or transactions under this Agreement. Except as\nexpressly provided herein, each Party will be responsible for all costs and\nexpenses incurred by it in connection with the negotiation, execution and\nperformance of this Agreement.\n\n     13.5     Neither SDE 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 and all fixed placement fees shall\nbe suspended until such events are cured.\n\n     13.6     Notices deliverable under this Agreement shall be given in\nwriting, addressed to the parties set forth below and shall be deemed to have\nbeen given either one (1) day after being given to an express overnight carrier\nwith a reliable system for tracking delivery; or when sent by a confirmed\nfacsimile with another copy sent by any other means specified in this paragraph;\nor three (3) business days after having been mailed postage prepaid by United\nStates registered or certified mail:\n \n              FOR NOTICES TO SDE:             FOR NOTICES TO GEOCITIES:\n\nName:         Jeffrey M. Swan                 James A. Rea\n\nTitle:        Executive Vice President        V.P. - Business Development\n \nAddress:      489 North 8\/th\/ Street          1918 Main Street, 3\/rd\/ Floor\n\nCity:         Hood River, Oregon  97031       Santa Monica, CA 90405-1030\n\nFacsimile:    (541) 386-5384                  (310) 664-6520\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 SDE nor GeoCities may assign this Agreement, in whole or\nin part, 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 \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, (b)\nmay be amended or modified only by a written instrument signed by a duly\nauthorized agent of each party, and (c) will be interpreted, construed and\nenforced in all respects in accordance with the laws of the State of California,\nwithout reference to its choice of law rules. If any provision of this Agreement\nis held to be invalid, such invalidity will not effect the remaining provisions.\n\n     The parties have executed this Agreement on the date first written above.\n\n\n                                     EGGHEAD, INC.\n\n                                     By: \/s\/George Orban\n                                         ---------------------------------\n                                         George Orban\n                                     Its:Chief Executive Officer\n\n\n                                     489 North 8\/th\/ Street\n                                     Hood River, Oregon  97031\n                                     Facsimile:  (541)386-5384\n                                     Attention:     Jeffrey M. Swan          \n                                                    Executive Vice President\n\n                                     With copies to:\n                                    \n                                     12403 Northeast Marx Street\n                                     Portland, Oregan 97230\n                                     Facsimile:  (503) 408-7359\n                                     Attention:     Jeffrey M. Swan\n                                                    Executive Vice President\n\n                                     GEOCITIES\n\n                                     By: \/s\/James A. Rea\n                                         ---------------------------------\n                                         James A. Rea\n                                     Its:Vice President - Business Development\n\n                                     1918 Main Street, 3\/rd\/ Floor\n                                     Santa Monica, California  90405\n                                     Facsimile:  (310) 664-6520\n\n \n                                   EXHIBIT A\n\n                                    LINKAGE\n                                        \n\n\n\nSDE Icon\n\n\n\nReturn Icon\n\n                                      A-1\n\n \n                                   EXHIBIT B\n\n                STAGED DEPLOYMENT OF SDE PROMOTION ON GEOCITIES\n                                        \n                                   STAGE IA\n                           Target Start Date 11\/1\/97\n\n\n1) Fixed Media Placement\n\n     [***] exposures\/month (buttons\/banners)\n     Plus E-Mail collection from member registration page\n     This may be modified upon the mutual agreement of the parties\n\n2) Experimentation with Popups and\/or Interstitials\n\n3) Placement on GeoCities Homepage\n\n     Logo placement, aggregated with other strategic partners situated on main\n     homepage.\n\n4) Placement on GeoCities Neighborhood Homepage\n\n     Logo placement, aggregated with other strategic partners situated on each\n     neighborhood homepage\n\n5) Placement on GeoCities Neighborhood Topic Pages\n\n     Logo placement, aggregated with other strategic partners on each\n     neighborhood topic page\n\nSpecific targeted product placement either on each neighborhood topic page or on\na topic product page associated with each neighborhood topic page.\n\n\n                                   STAGE IB\n                           Target Start Date 12\/1\/97\n\n\n1) Placement on GeoCities Marketplace\n\nAbove the fold placement, more prominent in size than non-strategic marketplace\nvendors.\n\n\n[***] Confidential treatment requested for redacted portion.\n\n                                      B-1\n\n \n                                   STAGE II\n                           Target Start Date 1\/1\/98\n\n\n1) Implement Computer Guides Program\n\n     Incentive program for GeoCities homesteaders to host for computer related\n     chat and discussion board sessions on their personal homepages\n\n2) Integrate with GeoCities Chat Programs\n\n     Vendor's Chat - include all computer related chat sessions in directory of\n     active chat sessions and experiment with placing direct buy buttons on\n     computer related member hosted chat pages.\n\n     Products Within\/Under Chat - deliver targeted product offers (fishing\n     software offers to fishing chat participants) to chat users.\n\n                                      B-2\n\n \n                                   STAGE III\n                            Target Start Date 2\/1\/98\n\n\n     Stage III involves an ongoing process of experimenting with new concepts\nand implementing those concepts which appear to provide successful results. Some\nof the areas we intend to explore are:\n\n     Product Offers on Search Result Pages\n\n     Product Offers on Interest Pages\n\n     Product Offers within Instant Messaging\n\n     Customized GeoGuides\n\n     Buyer's Clubs\n\n     First Time Buyer's Specials\n\n     Special Limited Time Offer Discounts\n\n     Greeting Card\/Gift Certificate Combinations\n\n     GeoCities Site Values (available only to GeoCities Visitors)\n\n                                      B-3\n                                        \n\n \n                                   EXHIBIT C\n\n            COMPETITORS IN COMPUTER HARDWARE AND SOFTWARE CATEGORY\n                                        \n\n\n\n[***]\n\n\n\n\nThe following companies shall be construed as Competitors only when their\nadvertising creative materials to be run by GeoCities directly address the\nComputer Hardware and Software category.\n\n\n\n[***]\n\n\n\n[***] Confidential treatment requested for redacted portion.\n\n                                      C-1\n\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7419],"corporate_contracts_industries":[9497],"corporate_contracts_types":[9613,9619],"class_list":["post-41994","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-eggheadcom-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\/41994","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=41994"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41994"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41994"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41994"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}