{"id":41997,"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-and-promotion-agreement-yahoo-inc-and-cdnow-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"advertising-and-promotion-agreement-yahoo-inc-and-cdnow-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/advertising-and-promotion-agreement-yahoo-inc-and-cdnow-inc.html","title":{"rendered":"Advertising and Promotion Agreement &#8211; Yahoo! Inc. and CDnow Inc."},"content":{"rendered":"<pre>\n                      ADVERTISING AND PROMOTION AGREEMENT\n\n     This Advertising and Promotion Agreement (the 'Agreement') is entered into\n                                                    ---------                  \nas of August 21, 1997 (the 'Effective Date') between Yahoo! Inc., a California\n                            --------------                                    \ncorporation ('Yahoo') and CDnow, Inc., a Pennsylvania corporation ('CDnow').  In\n              -----                                                 -----       \nconsideration of the mutual promises contained in this Agreement, Yahoo and\nCDnow hereby agree as follows:\n\n1.   Definitions.\n     ----------- \n\n     The following terms are used in this Agreement with the respective meanings\nset forth below:\n\n     'Above-the-Fold' shall mean situated within the portion of a page that is\n      --------------                                                          \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     'Buyweb Link' shall mean a link which:  (a) contains the CDnow logo, with\n      -----------                                                             \ndimensions no larger than 89 pixels wide by 31 pixels high (which is as large as\nYahoo's standard navigational buttons), and a tag line, with no more than 16\ncharacters, plus the artist name, as set forth in Exhibit D; (b) is placed near\n                                                  ---------                    \nany appropriate references to music on the Included Pages; and (c) will permit\nusers to navigate directly from the Included Page to a music related page on the\nCDnow Site, where such users may purchase the referenced Recorded Music items,\nas reasonably designated by CDnow (which page may be different for each Buyweb\nLink).\n\n     'CDnow Competitor' shall mean, collectively:  (i) the Recorded Music\n      ----------------                                                   \nmerchants listed on Exhibit B to this Agreement, solely if such Recorded Music\n                    ---------                                                 \nmerchant derives more than [XXX] of its annual gross revenues directly from the\nsale of Recorded Music; and (ii) any business entity, including without\nlimitation, corporations, business units, and corporate services divisions that\nderives more than [XXX] of its annual gross revenues directly from the sale of\nRecorded Music.\n\n     'CDnow Site' shall mean the on-line store owned by CDnow and currently\n      ----------                                                           \nlocated at http:\/\/www.cdnow.com.\n\n     'Click-through' shall mean a user presence at the CDnow Site, which\n      -------------                                                     \noriginated from the Included Pages, the Netscape Guide, or the Visa Shopping\nGuide, including any banner ads that are part of this Agreement pursuant to\nSection 2.2.\n \n     'Included Pages' shall mean, collectively: (i) certain results pages in the\n      --------------                                                            \nYahoo Main Site, My Yahoo and Yahoo Metro Sites with the music related key words\nidentified in Exhibit A attached hereto; (ii) certain Recorded Music related\n              ---------                                                     \npages of My Yahoo! to reasonably be\n\n[Confidential Treatment requested for redacted portions of document.]          1\n\n \ndetermined by Yahoo (by way of example, but not limitation, attached hereto in\nExhibit D is a sample page from My Yahoo! illustrating an Included Page); and\n---------                                                                    \n(iii) certain Recorded Music related pages, as identified in Exhibit A, of\n                                                             ----------   \nYahoo's Metro Sites and Yahoo Main Site.  In the event that Yahoo adds\nadditional relevant Recorded Music related pages to the Yahoo Main Site or the\nYahoo Metro Sites and\/or modifies the existing Recorded Music related pages\ncurrently listed in Exhibit A, such pages shall be deemed to be incorporated\n                    ---------                                               \ninto Exhibit A upon receipt by CDnow of written notification thereof.  CDnow may\n     ---------                                                                  \nrequest in writing that Yahoo add to Exhibit A any pages, existing as of the\n                                     ---------                              \nEffective Date, on the Yahoo Main Site or the Yahoo Metro Sites relevant to\nrecorded music artists or musical genres, and Yahoo will not unreasonably\nwithhold or delay approval and implementation of such request.  Upon such\napproval, Exhibit A will be deemed by the parties to be so amended.  In the\n          ---------                                                        \nevent that Yahoo materially restructures the nature of the Yahoo Service, Yahoo\nwarrants that such restructuring will not result in any material change in\nYahoo's representations under Section 2.1.1 regarding the delivered number of\nPage Views.\n\n     'Initial Term' shall mean the period beginning on the Effective Date, and\n      ------------                                                            \ncontinue for a period of twelve (12) full calendar months following the Launch\nDate.\n\n     'Launch Date' shall mean the date on which Yahoo makes the Buyweb Links\n      -----------                                                           \navailable to users on each Included Page, which shall be no more than two (2)\nweeks after Yahoo receives from CDnow any and all URLs, URL formats (as\napplicable), content, and other materials necessary for Yahoo to provide the\nBuyweb Links described in this Section; provided, however, that CDnow delivers\n                                        --------  -------                     \nto Yahoo such URLs, URL formats, content, and other materials necessary for\nYahoo to provide the Buyweb Link no later than September 15, 1997.  In the event\nthat CDnow fails to deliver such materials to Yahoo by September 15, 1997, then\nin any event the 'Launch Date' shall be September 30, 1997.\n\n     'Netscape Guide' shall mean that property currently referred to as\n      --------------                                                   \n'Netscape Guide by Yahoo', and located at http:\/\/netscape.yahoo.com\/guide,\nmaintained by Yahoo pursuant to the agreement between Yahoo and Netscape\nCorporation, in effect as of the Effective Date of this Agreement.\n\n     'Page View' shall mean a web site user's viewing of any Included Page, and\n      ---------                                                                \nany discrete page on the Netscape Guide or the Visa Shopping Guide, which\nincludes CDnow as a featured site or content module as described in Section 5.\n\n     'Recorded Music' shall mean any musical sound performance pre-recorded on\n      --------------                                                          \nany of the following media, which (except as set forth below) does not include\nany textual, video, or software elements: vinyl, compact disc, magnetic tape\n(cassette, reel-to-reel, or 8-track), DAT, music only DVD recordings, music only\nROM (except such ROM may include animation or video clips intended by the music\n     ------                                                                    \nrecording artist as part of the musical sound recording), and\n\n[Confidential Treatment requested for redacted portions of document.]          2\n\n \ndigitally distributed musical sound recordings of the same recited above, and\nexpressly excluding other media and ancillary music-related merchandise,\nincluding without limitation, books, videos, laser discs, clothing, musical\ninstruments, sheet music, musical scores, computer software, and technology used\nto deliver or render such sound recording.\n\n     'Subsequent Term' shall mean the twelve (12) calendar month period after\n      ---------------                                                        \nthe Initial Term of this Agreement.\n\n     'Term' shall mean, collectively, the Initial Term and the Subsequent Term.\n      ----                                                                     \n\n     'Visa Shopping Guide' shall mean the Visa Shopping Guide by Yahoo as\n      -------------------                                                \ndescribed in Section 5.2 hereto.\n\n     'Yahoo Main Site' shall mean Yahoo's principal directory to the World Wide\n      ---------------                                                          \nWeb, currently located at www.yahoo.com, and the Yellow Pages portion of the\nYahoo Main Site, currently located at http:\/\/yp.yahoo.com.\n\n     'Yahoo Metro Site' shall mean the following Yahoo! Metros:  Atlanta,\n      -----------------                                                  \nAustin, Boston, Chicago, Dallas\/Fort Worth, Los Angles, Miami, Minneapolis\/St.\nPaul, New York, S.F. Bay, Seattle, Wash D.C., and any other similar United\nStates metro sites that may be created by Yahoo and provided that such sites are\nwholly owned, created, and branded by Yahoo.\n\n     'Yahoo Service' shall mean, collectively, the Yahoo Main Site, My Yahoo!\n      -------------                                                          \nand the Yahoo Metro Sites.\n\n2.   Marketing Links.\n     --------------- \n\n     2.1  Buyweb Links on Included Pages.\n          ------------------------------ \n\n          (a) Yahoo will place a Buyweb Link Above-the-Fold on each Included\nPage and at the bottom of each Included Page which requires the user to scroll\nmore than one standard computer screen (i.e., with a resolution of 640 pixels by\n480 pixels), excluding any pages relating to My Yahoo!.  Each such Buyweb Link\n             ---------                                                        \nwill permit users to navigate directly from the Included Page to a page on the\nCDnow Site to be reasonably designated by CDnow (which page may be different for\neach Buyweb Link), the substantial purpose of which page shall be to enable\nusers to purchase referenced Recorded Music items relevant to the context of the\nIncluded Page.\n\n          (b) On My Yahoo! Included Pages, Yahoo will include a so-called\n'Content Module' in a form similar to the example set forth in Exhibit D, with\n                                                               ---------      \ncontent to be mutually agreed to by the parties.  Such 'Content Module' will\nappear as a default module on the\n\n[Confidential Treatment requested for redacted portions of document.]          3\n\n \n'entertainment' section of all newly registered My Yahoo! users, and such\n'Content Module' will become an option available to My Yahoo! users registered\nprior to the Launch Date.\n\n          (c)   In addition, subject to any existing contractual obligations as\nset forth in Section 4 hereto, Yahoo represents that it will place the Buyweb\nLinks on each Included Page in a manner that is comparable to third party links\nthat are of a similar nature and function to the Buyweb Links on any such\nIncluded Page.  By way of example, but not limitation, the parties attach hereto\nas Exhibit D, an example of:  (i)  a directory page link; and (ii) a search page\n   ---------                                                                    \nlink. CDnow will discuss with Yahoo any material changes to such Buyweb Links\nfrom the examples set forth in Exhibit D prior to implementing any such changes.\n                               ---------                                        \n\n          (d)   Subject to the provisions of this Agreement, Yahoo will solely\nbe responsible for the user interface and placement of the Buyweb Links on the\nIncluded Pages. Prior to any modifications to Above-the-Fold Buyweb Links, Yahoo\nwill consult with CDnow in good faith. Yahoo agrees that CDnow may vary the\nBuyweb Links up to [XXX] per month, unless otherwise agreed to in writing by\nYahoo. The parties agree to cooperate with respect to testing the performance of\nthe Buyweb Links during the Term of this Agreement.\n\n          2.1.1 Yahoo Representations.\n                --------------------- \n\n          (a)   Initial Term.  Yahoo represents that it will deliver to users of\n                ------------                                                    \nthe Yahoo Service and the Netscape Guide a minimum of [XXX] Page Views, during\nthe Initial Term of this Agreement, in accordance with the schedule set forth in\nExhibit C.  In the event that Yahoo fails to deliver such number of Page Views\n---------                                                                     \nduring any quarter set forth in Exhibit C, Yahoo will 'make good' the shortfall\n                                ---------                                      \nduring the next quarter by [XXX]. Such 'substitute' Page Views will be in\naddition to any Page Views otherwise stated in Exhibit C for such subsequent\n                                               ---------\nquarter. In the event of a shortfall during the last quarter of the Initial\nTerm, and if CDnow exercises its termination rights under Section 6 hereto,\nYahoo's obligations under this Section 2.1.1(a) shall extend beyond the end of\nsuch Initial Term until such Page View obligation is satisfied.\n\n          (b)   Subsequent Term.  During the Subsequent Term (if any), Yahoo\n                ---------------                                             \nrepresents that it will deliver to users of the Yahoo Service and the Netscape\nGuide a minimum number of Page Views equal to the number of actual Page Views\nduring the last [XXX] months of the Initial Term multiplied by [XXX], but in\nno event less than [XXX] Page Views.  Within thirty (30) days after the end of\nthe Initial Term, Yahoo shall set forth the schedule, as reasonably agreed by\nCDnow, for the delivery of such Page Views of the Subsequent Term. In the event\nthat Yahoo fails to deliver the scheduled number of Page Views during any\nquarter during the Subsequent Term, Yahoo will 'make good' the shortfall during\nthe next quarter by [XXX]. Such 'substitute' Page Views will be in addition to\nany Page Views otherwise scheduled for such subsequent quarter. In the event\n\n[Confidential Treatment requested for redacted portions of document.]          4\n\n \nof a shortfall during the last quarter of the Subsequent Term, Yahoo's\nobligations under this Section 2.1.1(b) shall extend beyond the end of such\nSubsequent Term until such Page View obligation is satisfied.  The provisions\nset forth in this Section 2.1.1 set forth the entire liability of Yahoo, and\nCDnow's sole remedy, for Yahoo's breach of its representations under this\nSection 2.1.1.\n\n          (c)   Existing Contracts.  Except as set forth in Exhibit E, Yahoo\n                ------------------                          ---------       \nrepresents that none of the third party contracts referenced under Section 4\nhereto, shall remain in effect after January 1, 1998.\n\n          2.1.2 Reports.  On a monthly basis, or more frequently if available to\n                -------                                            \nYahoo, Yahoo will deliver to CDnow a written report within fifteen (15) days\nafter the end of the month that describes (in reasonable detail) Yahoo's\ncalculation of the Page Views delivered during the period.\n\n          2.1.3 User Estimates.  During the Term of this Agreement, at CDnow's \n                --------------                                        \nreasonable request, Yahoo will provide, up to once per month, to CDnow estimates\nand research results that Yahoo has readily available in the normal course of\nits business, solely for use by CDnow in determining usage pertaining to the\nIncluded Pages and Netscape Guide. All such estimates and research results shall\nbe considered confidential Information under Section 7.3.\n\n     2.2  Banner Advertisements.\n          --------------------- \n\n          (a)   CDnow has placed with Yahoo insertion order #7815 in accordance\nwith Yahoo's standard terms and conditions for such insertion order.\n\n          (b)   Yahoo agrees to place a CDnow banner advertisement on [XXX] of\nthe Included Pages ('Selected Pages'), on an as available basis, such that on\n                     --------------\neach Selected Page, the banner advertisement will appear Above-the-Fold with a\nsize, prominence, and placement equivalent to third-party banners placed on the\nrelevant portion of the Yahoo Service for similar inventory. The content and\nfunctionality of the banner advertisements will be as reasonably determined by\nCDnow, subject to the provisions of this Section 2.2 and to Yahoo's generally\napplicable technical specifications and advertising guidelines. CDnow shall be\nentitled to vary the banners up to [XXX] per month. CDnow banner advertisements\nshall only promote CDnow in general or Recorded Music sold by CDnow at the CDnow\nSite, and shall not feature any non-Recorded Music items or merchandise.\n\n     2.3  Other Promotional Opportunities.  From time to time during the Term of\n          -------------------------------                                       \nthis Agreement, the parties agree to discuss in good faith the possibility of\nadditional promotional opportunities that may include the Yahoo trademark and\/or\ntrade name.\n\n[Confidential Treatment requested for redacted portions of document.]          5\n\n \n     2.4  [XXX]\n\n3.   Compensation; Audit Rights.\n     -------------------------- \n\n     3.1  Initial Term.  In consideration of Yahoo's performance and obligations\n          ------------                                                          \nas set forth herein, CDnow will pay Yahoo a total marketing fee of [XXX] for the\nInitial Term.  Such fee shall be divided into:  (i) a non-refundable slotting\nfee of [XXX] (the 'Slotting Fee'); and (ii) a referral fee of at least [XXX]\n                   ------------                                             \n(the 'Referral Fee'), as determined in Section 3.3.  Such payments will be made\n      ------------                                                             \nin accordance with the terms of this Section 3.\n\n     3.2  Slotting Fee.  During the Initial Term, CDnow shall pay to Yahoo [XXX]\n          ------------                                                          \nof the Slotting Fee, as a set-up, design, and consultation fee, on September 30,\n1997.  The balance of the Slotting Fee [XXX] shall be due and payable in\naccordance with the schedule set forth in Exhibit C.  During the Subsequent\n                                          ---------                        \nTerm, CDnow shall pay Yahoo a Slotting Fee based upon the following formula:\nnumber of actual Page Views during the last [XXX] months of the Initial Term\nmultiplied by [XXX], divided by [XXX] then multiplied by [XXX].  In\naddition, the Slotting Fee for the Subsequent Term will be adjusted in the\nfollowing manner:  (i) calculate the ratio defined by (number of actual Page\nViews during the last [XXX] months of the Initial Term multiplied by [XXX])\ndivided by [XXX]; (ii) if the ratio is greater than 1.0, then calculate the\ndifference between the ratio of subsection (i) and 1.0 to determine a\ndifferential factor; (iii) multiply the differential factor from subsection (ii)\nby [XXX] to obtain the adjustment factor; and then (iv) multiply the Slotting\nFee for the Subsequent Term calculated above in this Section 3.2 by such\nadjustment factor. In no event will the Subsequent Term Slotting Fee described\nin this Section 3.2 be less than [XXX].\n\n     3.3  Referral Fee.  CDnow shall pay to Yahoo the Referral Fee of [XXX] per\n          ------------                                                         \nquarter during the Term.  In addition, CDnow shall pay to Yahoo:  (i) [XXX] per\nClick-through for any Click-throughs over [XXX], during the Initial Term; and\n(ii) [XXX] per Click-through for any Click-throughs over [XXX], during the\nSubsequent Term.  The payments under this Section 3.3\n\n[Confidential Treatment requested for redacted portions of document.]          6\n\n \nshall be due and payable within thirty (30) days after the last day of each\ncalendar quarter during the Term of this Agreement.\n\n     3.4  Audit Rights. Yahoo shall maintain complete and accurate records in\n          ------------                                                       \naccordance with generally accepted methods of accounting for all transactions\nwhich are the subject of this Agreement for three (3) years after the last\npayment is due under this Agreement.  An independent 'Big Six' accounting firm\nretained by CDnow shall have access to such records, upon reasonable notice, for\nthe purposes of auditing the number of Click-throughs and Page Views reported by\nYahoo in support of Section 3.2, during normal business hours, for so long as\nsuch records are required to be maintained.  CDnow shall pay the expenses of the\naccounting firm, unless the number of Click-throughs determined by the\n                 ------                                               \naccounting firm is in excess of ten percent (10%) of the Click-throughs reported\nby Yahoo over the prior twelve (12) month period or the life of the Agreement\n(whichever is shorter), in which case Yahoo shall promptly pay CDnow the\naccounting firm's reasonable fees for such audit, and shall promptly reimburse\nany amount overpaid by CDnow to Yahoo based on such excess Click-through\namounts.\n\n4.   Exclusivity.\n     ----------- \n\n     4.1  CDnow Competitors.  During the Term, no CDnow Competitor will be\n          -----------------                                               \npermitted to purchase:  (a) advertising on the Included Pages; (b) banner\nadvertisements on pages of the Netscape Guide described in Section 5.1; or (c)\nbanner advertisements on pages of the Visa Shopping Guide which include CDnow's\nMerchant Spotlight Content Module as described in Section 5.2; provided,\n                                                               -------- \nhowever, that notwithstanding the foregoing: (i) Yahoo may honor its current\n-------                                                                     \ncontracts with CDnow Competitors or other entities, the terms of which contracts\nwould otherwise constitute a breach of the obligations of Yahoo as set forth\nhereunder; and provided, further, that such contracts shall terminate in\n               --------  -------                                        \naccordance with Yahoo's representations in Section 2.1.1(c), and shall not be\nrenewed to the extent that such contracts include placement on Included Pages;\n(ii) CDnow Competitors may purchase advertisements on Included Pages relating to\nMy Yahoo! as long as such advertisements are not targeted specifically to users\nthat have expressed music as an interest as part of their My Yahoo!\nregistration; and (iii) Yahoo may run banner advertisements of CDnow Competitors\non the Netscape Guide to the extent such advertisements are bartered by Netscape\nCommunications Corporation in connection with the agreement between Yahoo and\nNetscape relating to the Netscape Guide.  In addition, and notwithstanding the\nforegoing, Yahoo may charge CDnow Competitors for listings or enhanced merchant\nlistings or similar positioning in the normal course of business with respect to\nIncluded Pages relating to the Yellow Pages portion of the Yahoo Main Site.\nExcept as otherwise set forth in this Agreement, Yahoo shall not be restricted\nfrom conducting its normal course of business with CDnow Competitors outside the\nIncluded Pages.\n\n     4.2  Recorded Music Advertisements.  Except as set forth in Section 4.1,\n          -----------------------------                                      \nduring the Term of this Agreement, Yahoo shall not permit any third party to\npurchase advertising on the\n\n[Confidential Treatment requested for redacted portions of document.]          7\n\n \nIncluded Pages, excluding Including Pages relating to My Yahoo!, or any banner\n                ---------                                                     \nadvertisements on pages of the Netscape Guide described in Section 5.1, or\nbanner advertisements on pages of the Visa Shopping Guide which include CDnow's\nMerchant Spotlight Content Module, as described in Section 5.2, which such\nadvertising, to Yahoo's knowledge:  (a) promotes the sale of Recorded Music; or\n(b) takes the user on a direct link from an Included Page to the page of a third\nparty site, the substantial purpose of such page is the promotion or sale of\nRecorded Music; provided, however, that Yahoo uses its commercially reasonable\n                --------  -------                                             \nefforts to remove such link within five (5) business days after receipt by Yahoo\nof written notice by CDnow of such link; provided, further, that notwithstanding\n                                         --------  -------                      \nthe foregoing: (i) Yahoo may honor its current contracts with third parties, the\nterms of which contracts would otherwise constitute a breach of the obligations\nof Yahoo as set forth hereunder; and provided, further, that such contracts\n                                     --------  -------                     \nshall terminate in accordance with Yahoo's representations made in Section\n2.1.1(c), and shall not be renewed to the extent that such contracts include\nplacement on Included Pages; (ii) Yahoo may run such banner advertisements of\nthird parties on the Netscape Guide to the extent such advertisements are\nbartered by Netscape Communications Corporation in connection with the agreement\nbetween Yahoo and Netscape relating to the Netscape Guide. In addition, and\nnotwithstanding the foregoing, Yahoo may charge any third party for listings or\nenhanced merchant listings or similar positioning in the normal course of\nbusiness with respect to Included Pages relating to the Yellow Pages portion of\nthe Yahoo Main Site.  Except as otherwise set forth in this Agreement, Yahoo\nshall not be restricted from conducting its normal course of business with any\nthird party.\n\n5.   Netscape Guide and Visa Shopping Guide.\n     -------------------------------------- \n\n     5.1  Netscape Guide.  Yahoo currently has an agreement with the Netscape\n          --------------                                                     \nCorporation to produce Netscape Guide by Yahoo.  During the term of that\nagreement (including any renewal terms), Yahoo will include CDnow as a 'Featured\nSite' and so-called 'Content Module' on the Netscape Guide's 'entertainment:\nmusic' and 'shopping: music' pages.\n\n     5.2  Visa Shopping Guide.  Yahoo currently has an agreement with the Visa\n          -------------------                                                 \nCorporation to produce Visa Shopping Guide by Yahoo.  During the term of that\nagreement (including any renewal terms), Yahoo will include CDnow as a so-called\n'Merchant Spotlight Content Module' on the Visa Shopping Guide site (by way of\nexample, but not limitation, attached hereto in Exhibit D is a sample page from\n                                                ---------                      \nthe Visa Shopping Guide illustrating a Merchant Spotlight Content Module.)\nYahoo's obligations under this Section 5.2 are subject to CDnow meeting the\ngenerally applicable merchant standards as applied to merchants in the Visa\nShopping Guide.\n\n[Confidential Treatment requested for redacted portions of document.]          8\n\n \n6.   Termination.\n     ----------- \n\n     6.1  Termination with Cause.  This Agreement may be terminated at any time\n          ----------------------                                               \nby either party: (i) immediately upon written notice if the other party: (a)\nbecomes insolvent; (b) files a petition in bankruptcy; or (c) makes an\nassignment for the benefit of its creditors; or (ii) thirty (30) days after\nwritten notice to the other party of such other party's breach of any of its\nobligations under this Agreement in any material respect, which breach is not\nremedied within such 30-day period.\n\n     6.2  Renewal; Termination without Cause.  Upon completion of the Initial\n          ----------------------------------                                 \nTerm, this Agreement will automatically renew for the Subsequent Term, unless\n                                                                       ------\nCDnow notifies Yahoo in writing, at least ninety (90) days prior to the\nexpiration of the Initial Term, that CDnow will not renew this Agreement.  If\nYahoo is unable to enter into a substantially similar advertising transaction\nwith a third party prior to end of the Initial Term, and after using\ncommercially reasonable efforts to do so, CDnow will pay Yahoo a non-refundable\ntermination fee of [XXX] (the 'Termination Fee'), which shall be paid to Yahoo\n                               ---------------                                \nwithin thirty (30) days after the expiration of the Initial Term.  The\nTermination Fee shall be creditable toward advertising, on an as-available\nbasis, on the Yahoo Service (except that such advertising will not be placed on\n                             ------                                            \nany Yahoo inventory that directly link to sites that are pornographic, racist,\nor indecent), within the first thirty (30) days after the Initial Term;\nprovided, however, in the event that insufficient advertising is available to\n--------  -------                                                            \nCDnow under this Section 6.2, then such credit shall extend to first-available\nadvertising through the end of calendar year 1998.  In no event shall the\nTermination Fee credit toward advertising set forth in this Section 6.2 extend\nbeyond December 31, 1998, and such credit will be considered fully discharged as\nof such date.  CDnow shall execute standard insertion orders with respect to any\nadvertising placed on the Yahoo Service.\n\n     6.3  Survival.  The provisions of Sections 1, the 'make good' provisions of\n          --------                                                              \n2.1.1, 3.4 (as stated), 7, 8, 9 and 10 survive expiration or termination of this\nAgreement.\n\n7.   Confidential Information and Publicity.\n     -------------------------------------- \n\n     7.1  Terms and Conditions.  The terms and conditions of this Agreement\n          --------------------                                             \nshall be considered confidential and shall not be disclosed to any third parties\nexcept to such party's accountants or attorneys, or except as otherwise required\nby law.  Neither party shall make any public announcement regarding the\nexistence of this Agreement without the other party's prior written approval and\nconsent.\n\n     7.2  Publicity.  Any and all publicity relating to this Agreement and\n          ---------                                                       \nsubsequent transactions between Yahoo and CDnow and the method of its release\nshall be approved in advance of the release by both Yahoo and CDnow, which\napproval shall not unreasonably be withheld or delayed.\n\n[Confidential Treatment requested for redacted portions of document.]          9\n\n \n     7.3  Nondisclosure Agreement.  Yahoo and CDnow have previously entered into\n          -----------------------                                               \na Mutual Nondisclosure Agreement, dated August 4, 1997, and expressly\nacknowledge that such Mutual Nondisclosure Agreement remains in full force and\neffect in accordance with its terms during the Term of this Agreement.\n\n8.   Indemnification.\n     --------------- \n\n     CDnow, at its own expense, will indemnify, defend and hold harmless Yahoo\n     -------------------------------------------------------------------------\nand its employees, representatives, agents and affiliates, against any claim,\n-----------------------------------------------------------------------------\nsuit, action, or other proceeding brought against Yahoo based on or arising from\n--------------------------------------------------------------------------------\na claim any CDnow trademark, service mark or other brand feature, any material,\n-------------------------------------------------------------------------------\nproduct or service produced, distributed, offered or provided by CDnow, or any\n------------------------------------------------------------------------------\nmaterial presented on the CDnow Site, infringes in any manner any copyright,\n----------------------------------------------------------------------------\npatent, trademark, trade secret or any other intellectual property right of any\n-------------------------------------------------------------------------------\nthird party, is or contains any material or information that is obscene,\n------------------------------------------------------------------------\ndefamatory, libelous, slanderous, or that violates any law or regulation, or\n----------------------------------------------------------------------------\nthat otherwise violates any rights of any person or entity, including, without\n------------------------------------------------------------------------------\nlimitation, rights of publicity, privacy or personality, or has otherwise\n-------------------------------------------------------------------------\nresulted in any consumer fraud, product liability, tort, breach of contract,\n----------------------------------------------------------------------------\ninjury, damage or harm of any kind to any third party; provided, however, that\n---------------------------------------------------------------  -------      \nin any such case: (x) Yahoo provides CDnow with prompt notice of any such claim;\n(y) Yahoo permits CDnow to assume and control the defense of such action upon\nCDnow's written notice to Yahoo of its intention to indemnify; and (z) upon\nCDnow's written request, and at no expense to Yahoo, Yahoo will provide to CDnow\nall available information and assistance necessary for CDnow to defend such\nclaim.  CDnow will not enter into any settlement or compromise of any such\nclaim, which settlement or compromise would result in any liability to Yahoo,\nwithout Yahoo's prior written consent, which shall not unreasonably be withheld.\nCDnow will pay any and all costs, damages, and expenses, including, but not\nlimited to, reasonable attorneys' fees and costs awarded against or otherwise\nincurred by Yahoo in connection with or arising from any such claim, suit,\naction or proceeding.\n\n9.   Limitation of Liability.\n     ----------------------- \n\n     EXCEPT AS PROVIDED IN SECTION 8, UNDER NO CIRCUMSTANCES SHALL CDNOW, YAHOO,\nOR ANY AFFILIATE BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL,\nCONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM THIS AGREEMENT,  EVEN\nIF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, SUCH AS, BUT\nNOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.  For\npurposes of this Agreement, the term 'Affiliate' shall mean any company or any\n                                      ---------                               \nother entity world-wide, including, without limitation, corporations,\npartnerships, joint ventures, limited liability companies, in which Yahoo or\nCDnow, as applicable, owns at least fifty (50%) ownership, equity or financial\ninterest.\n\n[Confidential Treatment requested for redacted portions of document.]         10\n\n \n10.  General Provisions.\n     ------------------ \n\n     10.1 Independent Contractors.  It is the intention of Yahoo and CDnow that\n          -----------------------                                              \nYahoo and CDnow are, and shall be deemed to be, independent contractors with\nrespect to the subject matter of this Agreement, and nothing contained in this\nAgreement shall be deemed or construed in any manner whatsoever as creating any\npartnership, joint venture, employment, agency, fiduciary or other similar\nrelationship between Yahoo and CDnow.\n\n     10.2 Entire Agreement.  This Agreement, together with all Exhibits,\n          ----------------                                              \nrepresents the entire agreement between Yahoo and CDnow with respect to the\nsubject matter hereof and thereof and shall supersede all prior agreements and\ncommunications of the parties, oral or written, including without limitation the\nLetter of Agreement dated July 31, 1997, between Yahoo and CDnow.\n\n     10.3 Amendment and Waiver.  No amendment to, or waiver of, any provision of\n          --------------------                                                  \nthis Agreement shall be effective unless in writing and signed by both parties.\nThe waiver by any party of any breach or default shall not constitute a waiver\nof any different or subsequent breach or default.\n\n     10.4 Governing Law.  This Agreement shall be governed by and interpreted in\n          -------------                                                         \naccordance with the laws of the State of California without regard to the\nconflicts of laws principles thereof.\n\n     10.5 Successors and Assigns.  Neither party shall assign its rights or\n          ----------------------                                           \nobligations under this Agreement without the prior written consent of the other\nparty, which shall not unreasonably be withheld or delayed.  Notwithstanding the\nforegoing, either party may assign this Agreement to an entity who acquires\nsubstantially all of the stock or assets of a party to this Agreement; provided\nthat consent will be required in the event that the non-assigning party\nreasonably determines that the assignee will not have sufficient capital or\nassets to perform its obligations hereunder, or that the assignee is a direct\ncompetitor of the non-assigning party.  All terms and provisions of this\nAgreement shall be binding upon and inure to the benefit of the parties hereto\nand their respective permitted transferees, successors and assigns.\n\n     10.6 Force Majeure.  Neither party shall be liable for failure to perform\n          -------------                                                       \nor delay in performing any obligation (other than the payment of money) under\nthis Agreement if such failure or delay is due to fire, flood, earthquake,\nstrike, war (declared or undeclared), embargo, blockade, legal prohibition,\ngovernmental action, riot, insurrection, damage, destruction or any other\nsimilar cause beyond the control of such party.\n\n     10.7 Notices. All notices, requests and other communications called for by\n          -------                                                              \nthis agreement shall be deemed to have been given immediately if made by\ntelecopy or electronic\n\n[Confidential Treatment requested for redacted portions of document.]         11\n\n \nmail (confirmed by concurrent written notice sent via overnight courier for\ndelivery by the next business day), if to Yahoo at the physical and electronic\nmail addresses set forth on the signature page of this Agreement, with a copy to\nits General Counsel (e-mail:jplace@yahoo.com); and if to CDnow at the physical\nand electronic mail addresses set forth on the signature page of this Agreement,\nwith a copy to its General Counsel, or to such other addresses as either party\nshall specify to the other.  Notice by any other means shall be deemed made when\nactually received by the party to which notice is provided.\n\n     10.8  Severability.  If any provision of this Agreement is held to be\n           ------------                                                   \ninvalid, illegal or unenforceable for any reason, such invalidity, illegality or\nunenforceability shall not effect any other provisions of this Agreement, and\nthis Agreement shall be construed as if such invalid, illegal or unenforceable\nprovision had never been contained herein.\n\n     10.9  Sole Responsibility.  CDnow will remain solely responsible for the\n           -------------------                                               \noperation of the CDnow Site, and Yahoo will remain solely responsible for the\noperation of the Yahoo Services.  Each Party:   (a) acknowledges that the CDnow\nSite and the Yahoo Services may be subject to temporary shutdowns due to causes\nbeyond the operating Party's reasonable control; and (b) subject to the terms of\nthis Agreement, retains sole right and control over the programming, content and\nconduct of transactions over its respective Internet-based service.\n\n     10.10 Counterparts.  This Agreement may be executed in two counterparts,\n           ------------                                                      \nboth of which taken together shall constitute a single instrument.  Execution\nand delivery of this Agreement may be evidenced by facsimile transmission.\n\n     10.11 Authority.  Each of Yahoo and CDnow represents and warrants that the\n           ---------                                                       \nnegotiation and entry of this Agreement will not violate, conflict with,\ninterfere with, result in a breach of, or constitute a default under any other\nagreement to which they are a party.\n\n                           [Signature Page Follows.]\n\n[Confidential Treatment requested for redacted portions of document.]         12\n\n \n     This Advertising and Promotion Agreement has been executed by the duly\nauthorized representatives of the parties, effective as of the Effective Date.\n\n\nYAHOO! INC.                                 CDNOW, INC.\n \nBy: \/s\/ Jeffrey A. Mallett                  By: \/s\/ Jason Olim\n \nName:   Jeffrey A. Mallett                  Name:   Jason Olim\n \nTitle:  Senior Vice President,              Title:  President\n        Business Operations\n \nAddress:                                    Address:\n \nAttn:  Senior VP, Business Operations       Attn: General Counsel\n3400 Central Expressway, Suite 201          Jenkins Court, Suite 300\nSanta Clara, CA 95051                       610 Old York Road\nTel.:  (408) 731-3300                       Jenkintown, PA  19046\nFax:  (408) 731-3302                        Tel:  (215) 517-7325\ne-mail:  jmallett@yahoo.com                 Fax:  (215) 517-4499\n                                            email:nlefkovitz@cdnow.com\n\n[Confidential Treatment requested for redacted portions of document.]         13\n\n \n                                   EXHIBIT A\n\n                                Included Pages\n\n                          [approximately 20,000 words\n                             intentionally omitted]\n\n\n[Confidential Treatment requested for redacted portions of document.]         14\n\n \n                                   EXHIBIT B\n\n                               CDnow Competitors\n\n                          [the names of approximately\n                     1,000 entities intentionally omitted]\n\n[Confidential Treatment requested for redacted portions of document.]         15\n\n \n                                   EXHIBIT C\n\n                        Page Views and Payment Schedule\n\n                                     [XXX]\n\n[Confidential Treatment requested for redacted portions of document.]         16\n\n \n                                   EXHIBIT D\n\n                             Buyweb Link Examples\n\nMessage specifications:      16 characters plus the name of the artists\n\nDirectory Page:              http:\/\/web.yahoo.com\/tim\/cdnow\/beatles.com\/\n                             beatles.html (see attached)\n\nSearch Page:                 http:\/\/web\/tim\/cdnow\/mockup.html (see attached)\n\nMy Yahoo! Page:              http:\/\/web.yahoo.com\/tim\/cdnow\/mycdnow.html (see\n                             attached)\n\nVisa Shopping Guide Page:    http:\/\/web.yahoo.com\/billyee\/visa\/visatop3.html\n                             (see attached)\n\n[graphics depicting buyweb link examples]\n\n\nThe parties agree that the bottom portion of each sample page shall be subject\nto change.\n\n[Confidential Treatment requested for redacted portions of document.]         17\n\n \n                                   EXHIBIT E\n\nSchedule of Exceptions\n\nThe following lists those advertising agreements with CDnow Competitors for the\nIncluded Pages which survive beyond January 1, 1998\n\nADVERTISER:\n\nBook Stacks Unlimited\nAgreement ends: 6\/30\/98\nNon-exclusive keyword: music\n\n[Confidential Treatment requested for redacted portions of document.]         18\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7037,9377],"corporate_contracts_industries":[9510,9497],"corporate_contracts_types":[9613,9619],"class_list":["post-41997","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-cdnow-inc","corporate_contracts_companies-yahoo-inc","corporate_contracts_industries-technology__programming","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\/41997","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=41997"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41997"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41997"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41997"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}