Value-Added Link Agreement - Digital Equipment Corp. and Yahoo! Inc.
VALUE-ADDED LINK AGREEMENT
THIS VALUE-ADDED LINK AGREEMENT (this "AGREEMENT") is entered into as of the 3rd
day of July, 1996 (the "EFFECTIVE DATE") by and between:
(i) DIGITAL EQUIPMENT CORPORATION, a Massachusetts corporation
("DIGITAL"), with principal offices at 30 Porter Road, Littleton,
Massachusetts 01460; and
(ii) YAHOO! INC., a California corporation ("YAHOO!"), with executive
offices at 635 Vaqueros Avenue, Sunnyvale, California 94086;
with reference to the following:
RECITALS
The following provisions form the basis for, and are hereby made a part of, this
Agreement:
A. Yahoo! has developed and operates a branded Internet navigational
service, currently located at http://www.yahoo.com, that includes a
content-based directory structure and an integrated search engine (
the "Yahoo! Principal Site) as well as other World Wide Web
properties, such as Yahooligans! (an Internet navigational guide for
children), Yahoo! San Francisco, and localized versions of Yahoo!'s
Principal Site .
B. Digital has developed and operates the AltaVista-TM- full-text World
Wide Web search engine and the AltaVista-TM- index, which can
currently be accessed through http://www.altavista.digital.com
("ALTAVISTA").
C. Yahoo! desires to incorporate and feature AltaVista as the preferred
search engine for the Yahoo! Principal Site, Yahooligans! and Yahoo!
San Francisco and other mutually agreed upon Yahoo! properties.
Yahoo! and Digital desire to establish a "Value-Added Link" between
AltaVista and such Yahoo! properties that will enable a Yahoo! visitor
to conduct World Wide Web searches through AltaVista while remaining
on the Yahoo! property.
D. This Agreement sets forth all of the terms and conditions relating to
the establishment, structure and operation of such a Value-Added Link.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the
parties do hereby agree as follows:
DEFINITIONS; RULES OF CONSTRUCTION.
DEFINITIONS. For purposes of this Agreement, in addition to the terms
defined elsewhere in this Agreement, the following terms shall have the meanings
ascribed to them below:
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"ALTAVISTA INDEX" means the World Wide Web full-text index
compiled by Digital using the AltaVista Search Engine, as the same is
updated from time to time by the AltaVista Search Engine and maintained on
Digital servers.
"CPM" means, with respect to advertisements, the cost per
thousand impressions.
"DERIVATIVE WORK" means, with respect to a software program or
any related Documentation, any modification or enhancement thereof
including, without limitation, all "derivative works" and "compilations,"
within the meaning of such terms as defined in the Copyright Act of 1976
(17 U.S.C. Section 101 ET SEQ.), as amended.
"ENTITY" means a natural person, corporation, limited liability
company, association, partnership, trust, estate, joint venture or other
entity, whether or not incorporated, or a government or any department or
agency thereof, as appropriate in the context.
"INTELLECTUAL PROPERTY RIGHTS" means trade secrets, patents,
copyrights, trademarks, trade dress, know-how and similar rights of any
type under the laws of any governmental authority including, without
limitation, all applications and registrations relating to any of the
foregoing.
"INTERFACE SPECIFICATIONS" means the detailed specifications set
forth in EXHIBIT "A" that when implemented will enable the Value-Added Link
(as defined below).
"NETWORK AFFILIATE" means an entity which maintains a copy of the
AltaVista Index under license from Digital on a World Wide Web server
operated by such entity, and provides the public with the means to query
the AltaVista Index, and which would use the AltaVista brand (including its
trademarks and logos) and meet Digital's quality assurance standards.
"OBJECT CODE" means the computer executable binary code derived
from compiled Source Code for execution on a computer hardware system.
"RESULTS PAGE" means each page on a Yahoo! Property that contains
search responses, if any, to an AltaVista search query.
"SEARCH ENGINE" means a program that crawls and indexes the text
of the World Wide Web and/or Usenet newsgroups and which index can be
queried using Boolean logic or similar query methods. The term "crawls",
as used herein, shall have the meaning set forth in Section 1.1(n).
"SOURCE CODE" means a presentation of a computer program, regardless
of the form in which it is stored, from which it is possible to discern the
logic, algorithms, internal structure, operating features and any other
design characteristic of such computer program, together with related
source materials.
"USER" means a person who accesses a Yahoo! Property.
"VALUE-ADDED LINK" OR "VAL" shall operate as described in Section 2.1.
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(n) "WEB CRAWLER" means a program that follows URL pointers, which
utilize the hypertext transfer protocol (http), from one web page to
another in order to access these pages.
(o) "WORLD WIDE WEB" or "WWW" means the Internet-based distributed
information service that utilizes the hpertext transfer protocol (http) or
any successor protocol.
(p) "YAHOO! PROPERTIES means the Yahoo! Principal Site currently
located at http://www.yahoo.com and any successor property, Yahooligans!
and any successor property, Yahoo! San Francisco and any successor property
and all other mutually agreed upon World Wide Web properties, so long as
such properties are owned, controlled, and operated by Yahoo!, that are
accessible over the World Wide Web by a user.
RULES OF CONSTRUCTION. As used in this Agreement, neutral pronouns
and any variations thereof shall be deemed to include the feminine and masculine
and all terms used in the singular shall be deemed to include the plural, and
vice versa, as the context may require. The words "PARTY" or "PARTIES" when
used herein refer, respectively, to a party and to both of the parties to this
Agreement. The words "HEREOF," "HEREIN," "HEREUNDER" and other words of similar
import refer to this Agreement as a whole, including any exhibits hereto, as the
same may from time to time be amended or supplemented and not to any subdivision
contained in this Agreement. The word "INCLUDING" when used herein is not
intended to be exclusive and in all cases means "INCLUDING WITHOUT LIMITATION."
References herein to section, subsection, attachment or exhibit shall refer to
the appropriate section, subsection, attachment or exhibit in or to this
Agreement. The descriptive headings of this Agreement are inserted for
convenience of reference only and do not constitute a part of and shall not be
utilized in interpreting this Agreement. This Agreement has been negotiated by
the parties hereto and their respective counsel and shall be fairly interpreted
in accordance with its terms and without any rules of construction relating to
which party drafted the Agreement being applied in favor of or against either
party.
VALUE-ADDED LINK.
OPERATION OF VAL. The parties intend that the VAL operate as follows:
The user interface of each Yahoo! Property that offers search
functionality indexing the text of the World Wide Web to Users will be
designed so that it identifies AltaVista as the Preferred Search Engine (as
set forth in Section 4, below) and gives the User the option of using
AltaVista to conduct a search;
When Yahoo! initiates a query to AltaVista, using the VAL
interface, the query will be transmitted to the AltaVista Index, where it
will be processed, and the results will be sent using the VAL interface to
the Yahoo! Property;
Yahoo! will format the results from the AltaVista search in a
Results Page and will be able to incorporate advertising and other
messaging into this Results Page. Each Results Page will contain an
attribution to AltaVista; and
(d) The search process will not remove the User from the Yahoo!
Property on which the User initiated the search.
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EXCLUSIVITY. The parties recognize that the World Wide Web is an
open environment and that [XXXX] is not in the best interests of either party.
The parties agree, however, to [XXXX] for a [XXXX] period commencing on the
Effective Date (the "EXCLUSIVITY PERIOD") as follows:
(a) BY DIGITAL. During the Exclusivity Period, Digital will not
implement, announce or execute a definitive written agreement to establish
a [XXXX].
(b) BY YAHOO! During the Exclusivity Period, Yahoo! will provide
AltaVista as the [XXXX], including the fact that Yahoo! will not present
any [XXXX]. As Digital develops AltaVista search capabilities for [XXXX],
Yahoo! agrees to promptly adopt such search capabilities for applicable
[XXXX], if feasible.
2.3 IMPLEMENTATION OF THE VAL. The parties agree that the VAL will be
implemented within (fifteen) 15 days following the Effective Date.
DIGITAL'S RESPONSIBILITIES.
INTERFACE SPECIFICATIONS. Promptly following the Effective Date,
Digital shall provide to Yahoo! the Interface Specifications (set forth in
Exhibit A) to allow Yahoo! to establish the VAL with the AltaVista Index.
SUPPORT. Beginning on the Effective Date and for so long as this
Agreement is in effect, Digital shall provide Yahoo!, at no additional charge,
support for the VAL in accordance with the terms set forth in EXHIBIT "B" hereto
(the "SUPPORT OBLIGATIONS).
PERFORMANCE CRITERIA. Digital shall use commercially reasonable
efforts to comply with the performance criteria set forth in EXHIBIT "C" hereto
(the "PERFORMANCE CRITERIA"). Digital may modify the Performance Criteria at
any time and from time to time subject to Yahoo!'s approval not to be
unreasonably withheld. Yahoo! may provide input to Digital concerning the
Performance Criteria. Digital shall take Yahoo!'s input into consideration in
modifying the Performance Criteria, but Digital is under no obligation to
incorporate Yahoo!'s suggestions into the Performance Criteria.
CONSIDERATION OF TECHNICAL SUGGESTIONS. Digital shall consider
technical suggestions from Yahoo! to improve the performance of the VAL,
AltaVista Index and/or query components. Digital shall evaluate promptly all
such suggestions, but Digital is under no obligation to accept or implement any
of such suggestions.
ADVANCE COMMUNICATION OF ENHANCEMENTS. Digital shall give Yahoo!
notice of all material enhancements to and extensions of the search
functionality of AltaVista that are to be
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made generally available to all persons accessing AltaVista.. In the event that
the Interface Specifications need to be modified so that the VAL can support
such extensions and enhancements, Digital shall promptly provide Yahoo! with
such modified Interface Specifications.
YAHOO!'S RESPONSIBILITIES.
ENGINEERING CHANGES. Promptly following its receipt of the Interface
Specifications, Yahoo! shall implement all engineering changes needed in the
Yahoo! source code or object code necessary to install and support the VAL. In
any event, Yahoo! will cause the VAL to be incorporated, and fully operational,
in the Yahoo! Properties according to the following schedules: (i) in the
Yahoo! Principal Site within fifteen (15) days of the Effective Date and (ii)
in Yahooligans! and in Yahoo! San Francisco should any such property contain WWW
search functionality and in other mutually agreed upon Yahoo! properties
according to a mutually agreed upon schedule
ALTAVISTA AS PREFERRED SEARCH ENGINE. Yahoo! shall establish
AltaVista as the preferred search engine for all Yahoo! Properties that contain
WWW search functionality. In this regard, Yahoo! shall, at a minimum:
incorporate the VAL into all Yahoo! Properties that contain WWW
search functionality in accordance with the terms of this Agreement;
include a reference, to be provided to Yahoo! by Digital, in
accordance with EXHIBIT "D," to the AltaVista search functionality, E.G.,
"Powered by AltaVista," prominently on each page that contains WWW search
functionality of each Yahoo! Property;
(c) place AltaVista first in any list of available Search
Engines if multiple Search Engines are available on such Yahoo! Property,
unless Yahoo! provides the User with a choice of search engines from other
entities in a list entitled "Other Search Engines" and in close proximity
in the same viewing screen provides the User with the option, via the
Navigation Option Bar, to select AltaVista in its capacity as a VAL. The
term "Navigation Option Bar" for purposes of this provision means the
following selection categories available to the User as set forth in
Exhibit E: [Yahoo! Categories | Yahoo! Sites | AltaVista Web Pages ];
(d) consider in good faith such other steps as Digital may reasonably
request.
INTERFACE DESIGN AND RESULTS PAGES. Yahoo! shall use the mutually
agreed upon design set forth in EXHIBIT "D" for each user interface from which
the VAL can be accessed by Yahoo! users and the related search query page(s). In
addition, each Results Page shall contain an attribution to AltaVista in the
form set forth in EXHIBIT "E." Upon written notice to Yahoo!, Digital may from
time to time make reasonable modifications to such attribution so long as the
AltaVista name remains prominent or request that it be removed and Yahoo! shall
promptly implement all such modifications, or remove such attributions, as the
case may be.
4.4 CONTINUED OPERATION OF VAL. Once the VAL becomes operational for a
Yahoo! Property, Yahoo! shall not de-activate or otherwise disconnect the VAL
for any reason (other than due to a system failure or maintenance of such Yahoo!
Property or of AltaVista) from
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such Property. If any VAL is de-activated or otherwise disconnected by Yahoo!,
this shall constitute a material breach of the Agreement.
PAYMENT.
RATE SCHEDULE. In consideration for the VAL to the AltaVista Index,
each calendar quarter during the term of this Agreement Yahoo! shall pay Digital
an amount in accordance with the following rate schedule (the "RATE SCHEDULE"):
[XXXX]
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ANNUAL REVIEW OF BASE RATE. On an annual basis during the initial and
renewal terms of this Agreement, and prior to the anniversary of the Effective
Date, the parties will renegotiate pricing terms. [XXXX]. If in good faith
the parties have not reached agreement on such pricing by the applicable
anniversary of the Effective Date, cannot reach agreement on such pricing
terms, either party may terminate this Agreement on 120 days written notice
pursuant to Section 13 below.
PAYMENT AND REPORT. All payments accruing during each calendar
quarter during the term of this Agreement shall be paid by Yahoo! to Digital
within thirty (30) days of the end of each such calendar quarter. With each
such payment, Yahoo! shall also prepare and provide to Digital a report setting
forth in reasonable detail the calculation of each of the following for such
calendar quarter: [XXXX]; together with such data as may be reasonably
necessary to support such calculations.
MANNER OF PAYMENT. All payments due to Digital by Yahoo! hereunder
shall be payable in U.S. Dollars by wire transfer to such U.S. bank account as
Digital shall notify Yahoo! in writing no later than ten (10 ) days before the
date on which such payment is due.
LATE FEE. If Yahoo! fails to pay any amounts when due and payable,
Yahoo! shall pay Digital a late payment charge of one percent (1.0%) per month,
but not in excess of the lawful maximum, on any past due balance.
RECORDS AND AUDIT. Yahoo! shall keep accurate records and accounts in
accordance with standard business practices in the on-line industry and
generally accepted accounting principles. Such records shall include, but are
not limited to, the information required to produce the reports specified in
Section 5.4. Yahoo! agrees that Digital, through its then current independent
certified public accounting firm, shall, until the expiration of one (1 ) year
after final payment under this Agreement, on 90 days advance notice , have
access to and the right to examine at Yahoo!'s principal place of business
during regular working hours any books, documents, papers, records or accounts
of Yahoo! relating to the VAL and to the determination and calculation of number
of Results Pages viewed, the load factor, Full Capacity, Full Inventory (and
components thereof) and Sold Advertising and may make copies or extracts
therefrom. Digital agrees to maintain all information obtained during such
examinations in confidence and to cause its duly authorized representatives to
do so as well. Audits shall be at the expense of Digital, unless an
underpayment exceeding five percent (5%) of the amount paid for the period
covered by the inspection is established in the course of any such inspection,
whereupon all costs relating to such audit, together with the amount of such
underpayment, shall be paid by Yahoo!. If a deficiency is shown by such audit,
Yahoo! shall immediately pay that deficiency plus interest thereon under Section
5.7. Non-payment of any deficiency for more than thirty (30) days after the
date on which Yahoo! receives notice of such deficiency shall constitute a
material breach of this Agreement.
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NETWORK AFFILIATE SITES.
Digital intends to maintain and operate AltaVista at various geographic
locations, and to establish Network Affiliate sites in selected locations
around the world. In the event Yahoo! desires to establish the VAL with any
AltaVista sites maintained and operated by Digital, Digital agrees to implement
the VAL at such site. In the event that Yahoo! desires to establish a VAL with
one or more Network Affiliate Sites, Digital agrees to introduce Yahoo! to the
operators of such Network Affiliate Sites. All other aspects of establishing
such a VAL, including without limitation, the pricing of and support for the
VAL, would be subject to a separate business arrangement between Yahoo! and the
operator of such Network Affiliate Site.
PROPRIETARY RIGHTS.
ALTAVISTA. As between Digital and Yahoo!, Digital shall own all
right, title and interest in and to AltaVista and the Intellectual Property
Rights embodied therein. Except as expressly granted herein, nothing herein
grants or shall be construed as granting Yahoo! any licenses or other rights,
whether express or implied or otherwise, in, to or under AltaVista or any
Intellectual Property Rights embodied therein.
YAHOO!. Subject to Digital's underlying ownership interests set forth
in Section 7.1, as between Yahoo! and Digital, Yahoo! shall own all right, title
and interest in and to the Yahoo! Properties.
TRADEMARKS AND MARKETING.
DIGITAL MARKS. Digital hereby grants to Yahoo! a non-exclusive
license to use the Digital tradenames, logos and other Digital trademarks and
service marks as set forth on EXHIBIT "F" hereto (the "DIGITAL MARKS") in
connection with the Joint Marketing activities set forth in Section 8.5 below
and Yahoo!'s advertising, marketing, promotion display and distribution of the
VAL. Yahoo!'s use shall be in accordance with Digital's policies regarding
advertising and trademark usage as established from time to time by Digital and
as provided by Digital Yahoo! agrees to cooperate with Digital in facilitating
Digital's monitoring and control of the nature and quality of products and
services bearing the Digital Marks, and to supply Digital with specimens of
Yahoo!'s use of the Digital Marks upon request. In the event that Digital
determines that Yahoo!'s use of the Digital Marks, or the service in connection
which such Digital Marks are used, is inconsistent with Digital's quality
standards, then upon Digital's written request, Yahoo! shall within a reasonable
period thereafter conform such use or service to Digital's standards. If Yahoo!
fails to conform such use or service, Digital shall have the right to suspend
such use of the Digital Marks.
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YAHOO! MARKS. Yahoo! hereby grants to Digital a non-exclusive license
to use the Yahoo! tradenames, logos and other Yahoo! trademarks and service
marks as set forth on EXHIBIT "G" hereto (the "YAHOO! MARKS") in connection with
the Joint Marketing activities set forth in Section 8.5 below and Digital's
advertising, marketing, promotion and distribution of the VAL. Digital's use
shall be in accordance with Yahoo's policies regarding advertising and trademark
usage as established from time to time by Yahoo and as provided by Yahoo!.
Digital agrees to cooperate with Yahoo! in facilitating Yahoo's monitoring and
control of the nature and quality of products and services bearing the Yahoo!
Marks, and to supply Yahoo! with specimens of Digital's use of the Yahoo! Marks
upon request. In the event that Yahoo! determines that Digital's use of the
Yahoo! Marks is inconsistent with Yahoo's quality standards, then upon Yahoo's
written request, Digital shall within a reasonable period thereafter conform
such use or services to Yahoo's standards. If Digital fails to conform such use
or services, Yahoo! shall have the right to suspend such use of the Yahoo!
Marks.
Yahoo! acknowledges that the Digital Marks are trademarks and service
marks of Digital. Yahoo! understands and agrees that the use of any Digital
Mark in connection with this Agreement shall not create any right, title or
interest, in or to the use of the Digital Mark and that all such use and
goodwill associated with the Digital Mark will inure to the benefit of Digital.
Digital acknowledges that the Yahoo! Marks are trademarks and
service marks of Yahoo! Digital understands and agrees that the use of any
Yahoo! Mark in connection with the Agreement shall not create any right, title
or interest, in or to the use of the Yahoo! Mark and that all such use and
goodwill associated with the Yahoo! Mark will inure to the benefit of Yahoo.
MARKETING. Digital and Yahoo! shall both jointly and independently
market the relationship between the parties. These activities include but are
not limited to the following:
PRESS RELEASE. Subject to the provisions of Section 9 hereof,
Digital and Yahoo! shall promptly after the Effective Date agree upon and
issue a joint press release (the "PRESS RELEASE") describing in general
terms the VAL.
ONGOING PUBLIC COMMUNICATIONS FOR NEWSWORTHY ANNOUNCEMENTS.
PRESS AND ANALYST BRIEFINGS.
PROMOTION OF ISBU HOME SITE (WWW.ALTAVISTA.SOFTWARE.DIGITAL.COM).
ALTAVISTA HOME SITE (WWW.ALTAVISTA.DIGITAL.COM) PROMOTION AT
DIGITAL'S DISCRETION. Digital and Yahoo! acknowledge that Digital does not
currently promote any of its AltaVista partners on the AltaVista home page
(www.altavista.digital.com). In the event that Digital includes promotions
of its AltaVista partners at this site, Digital will include a promotion
for Yahoo! at that site in a form to be mutually decided by the parties.
PROMOTION ON YAHOO! HOME PAGES AND ON SPECIFIED YAHOO! PROPERTIES
AT YAHOO!'S DISCRETION.
TRADESHOWS, SEMINARS.
SALESFORCE MATERIALS.
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COLLATERAL MATERIALS.
ADVERTISING (ALL MEDIA).
APPOINTMENT OF A CONTACT PERSON IN EACH COMPANY TO COORDINATE
ONGOING MARKETING ACTIVITIES.
CONFIDENTIALITY.
CONFIDENTIAL INFORMATION. "CONFIDENTIAL INFORMATION" means
information about the disclosing party's business or activities that are
proprietary or confidential, which shall include all business, financial,
technical and other information(as well as the data and calculations supporting
the payments to be made under Section 5 herein) of a party marked or designated
by such party as "confidential" or proprietary"; or information which, by the
nature of the circumstances surrounding the disclosure, ought in good faith to
be treated as confidential; PROVIDED THAT information shall not be considered
Confidential Information of a party if it can be shown that such information:
(i) is known to the recipient on the Effective Date directly or indirectly from
a source other than one having an obligation of confidentiality to the providing
party; (ii) hereafter becomes known (independently of disclosure by the
providing party) to the recipient directly or indirectly from a source other
than one having an obligation of confidentiality to the providing party; (iii)
becomes publicly known or otherwise ceases to be confidential, except through a
breach of this Agreement by the recipient; or (iv) was independently developed
by the recipient without use of Confidential Information.
PROTECTION OF CONFIDENTIAL INFORMATION. The parties recognize that,
in connection with the performance of this Agreement, each of them may disclose
to the other its Confidential Information, including the creation of materials
and the development of technology and techniques that are not generally known in
the industry. . The party receiving any Confidential Information of the other
party agrees to maintain the confidential status of such Confidential
Information and not to use any such Confidential Information for any purpose
other than the purposes for which it was originally disclosed to the receiving
party, and not to disclose any of such Confidential Information to any third
party. Upon expiration or termination of this Agreement, the receiving party
shall return promptly to the other party or destroy, at that party's option, all
tangible materials that disclose or embody Confidential Information
PERMITTED DISCLOSURE. The parties acknowledge and agree that each may
disclose any given Confidential Information: (i) as required by law or
generally accepted accounting practices; (ii) to their respective directors,
officers, employees, attorneys, accountants and other advisors or independent
contractors, who are under an obligation of confidentiality no less stringent
than set forth herein, on a "need-to-know" basis; or (iii) in connection with
disputes or litigation between the parties that relates to such Confidential
Information and each party shall endeavor to limit disclosure to that purpose.
In the event that the receiving party is ordered to disclose the other party's
Confidential Information pursuant to a judicial or governmental request,
requirement or order, the receiving party shall promptly notify the other party
and take reasonable steps to assist that party in contesting such request,
requirement, or order or in otherwise in protecting that party's rights prior to
disclosure.
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APPLICABILITY. The foregoing obligations shall apply to directors,
officers, employees and representatives of the parties and any other person to
whom the parties have delivered copies of, or permitted access to, such
Confidential Information in connection with the performance of this Agreement,
and each party shall advise each of the above of the obligations set forth in
this Section 9.
THIRD PARTY CONFIDENTIAL INFORMATION. Any confidential information of
a third party disclosed to either Digital or Yahoo! shall be treated by Digital
or Yahoo!, as the case may be, in accordance with the terms under which such
third party confidential information was disclosed; provided that: (i) the
party disclosing such third party confidential information shall first notify
the other party that such information constitutes third party confidential
information and the terms applicable to such third party confidential
information; and (ii) either party may, in its sole discretion, decline to
accept all or any portion of such third party confidential information.
CONFIDENTIALITY OF AGREEMENT. Except as required by law or generally
accepted accounting principles, and except to assert its rights hereunder or for
disclosures on a "need-to-know" basis to its own officers, directors, employees
and professional advisers or to prospective investors or acquirors in connection
with a pending investment in or acquisition of such party, and under an
obligation of confidentiality no less stringent that as set forth herein, each
party hereto agrees that neither it nor its directors, officers, employees,
consultants or agents shall disclose the terms of this Agreement or specific
matters relating hereto without the prior consent of the other party.
DISCLAIMER OF WARRANTIES.
YAHOO! HEREBY ACKNOWLEDGES AND AGREES THAT THE VAL AND ALTAVISTA ARE BEING
PROVIDED TO YAHOO! "AS IS, WITH ALL FAULTS," AND THAT DIGITAL MAKES NO
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE USEFULNESS,
ACCURACY, COMPLETENESS, FEASIBILITY, RELIABILITY OR EFFECTIVENESS OF THE VAL,
THE ALTAVISTA SEARCH ENGINE OR THE ALTAVISTA INDEX, OR THAT THE VAL OR ALTAVISTA
WILL MEET THE OBJECTIVES OR NEEDS OF YAHOO! OR ANY THIRD PARTY, THAT THE
OPERATION OF THE VAL OR ALTAVISTA WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT
DEFECTS IN THE VAL OR ALTAVISTA HAVE BEEN OR WILL BE CORRECTED. IN PARTICULAR,
AND WITHOUT LIMITING THE FOREGOING, DIGITAL MAKES NO REPRESENTATIONS AS TO THE
COMPLETENESS OF SEARCH RESULTS OBTAINED BY USING THE ALTAVISTA INDEX. WITHOUT
LIMITING THE FOREGOING, DIGITAL HEREBY DISCLAIMS ALL WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT (EXCEPT AS
PROVIDED IN SECTION 12.2 BELOW) IN CONNECTION WITH THE VAL AND ALTAVISTA. IN NO
EVENT SHALL DIGITAL BE LIABLE TO YAHOO! FOR ANY FAILURE, DISRUPTION, DOWNTIME,
INTERRUPTION, MISCALCULATION, INCORRECT LINKAGE, DELAY, INACCURACY OR OTHER
NONPERFORMANCE OF THE VAL OR ALTAVISTA.
INDEMNIFICATION AND REMEDIES.
DIGITAL INDEMNITY.
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Subject to the limitations set forth below, Digital, at its own
expense, shall indemnify, defend (or at Digital's option and expense,
settle) and hold Yahoo! harmless from and against any judgment, losses,
deficiencies, damages, liabilities, costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses), whether required to
be paid to a third party or otherwise incurred in connection with or
arising from any claim, suit, action or proceeding (collectively, a
"CLAIM"), incurred or suffered by Yahoo! to the extent the basis of such
Claim is that (1) any Digital software incorporated within the AltaVista
Search Engine infringes any (i) patent issued as of the Effective Date of
this Agreement and during the term of the Agreement; (ii) trademark or
(iii) copyright; or (2) information received onto the Yahoo! Property
directly from the link to the AltaVista Index and displayed by Yahoo!
infringes any copyright of a third party, but only to the extent that such
infringement would have been prevented by Digital's making available to
users of the WWW information (compatible with the Robot Exclusion
Standard) by which Web site owners could block access by the Search Engine
to such Web sites; PROVIDED THAT Digital shall have no obligation to
Yahoo! pursuant to this Section 11.1 (a) unless: (x) Yahoo! gives Digital
prompt written notice of the Claim (except to the extent that Digital
already has notice of such Claim); (y) Digital is given the right to
control and direct the investigation, preparation, defense and settlement
of the Claim; and (z) Yahoo! reasonably cooperates with Digital in the
defense or settlement thereof; and PROVIDED, FURTHER, that if any
settlement results in any ongoing liability to, or prejudices or
detrimentally impacts Yahoo!, and such obligation, liability, prejudice or
impact can reasonably be expected to be material, then such settlement
shall require Yahoo!'s written consent, which consent shall not be
unreasonably withheld. In connection with the defense of any such Claim,
Yahoo! may have its own counsel in attendance at all interactions and
substantive negotiations at its own cost and expense.
Notwithstanding the foregoing, Digital assumes no liability for
infringement claims to the extent that such claims arise from a combination
of AltaVista with other functionality, products or content not supplied by
Digital where such infringement would not have arisen from the use of
AltaVista absent such combination.
(c) If Digital receives notice of an alleged infringement by
AltaVista of any third party Intellectual Property Rights, Digital shall
use reasonable efforts to, at its option: (i) obtain a license at no cost
to Yahoo! permitting continued use of AltaVista on terms and conditions
consistent with the terms set forth herein; (ii) modify the allegedly
infringing component(s) of AltaVista to perform its intended function
without infringing third party Intellectual Property Rights; and/or (iii)
contest such allegation. In the event Digital is unable within a
reasonable period of time to obtain a license or modify AltaVista, and
deems not to contest such allegation, Digital may, in its sole discretion,
terminate this Agreement immediately upon written notice to Yahoo!
11.2 CROSS-INDEMNITY FOR TRADEMARK INFRINGEMENT CAUSED BY USE OF
ALTAVISTA AND YAHOO! TRADEMARKS.
(a) Subject to the limitations set forth below and the provisions of
Section 11.1,, Digital, at its own expense, shall indemnify, defend (or at
Digital's option and expense, settle) and hold Yahoo! harmless from and
against any judgment, losses, deficiencies, damages, liabilities, costs and
expenses (including, without limitation, reasonable attorneys' fees and
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expenses), whether required to be paid to a third party or otherwise
incurred in connection with or arising from any Claim, incurred or suffered
by Yahoo! to the extent that the basis of such Claim is that the display of
the "AltaVista" trademark infringes any trademark and service mark rights
of a third party; provided that Digital shall have no obligation to Yahoo!
pursuant to this Section 11.2 (a) unless: (i) Yahoo! gives Digital prompt
written notice of the Claim (except to the extent that Digital already has
notice of such Claim); (ii) Digital is given the right to control and
direct the investigation, preparation, defense and settlement of the Claim;
and (iii) Yahoo! reasonably cooperates with Digital in the defense or
settlement thereof; and provided, further, that if any settlement results
in any ongoing liability to, or prejudices or detrimentally impacts Yahoo!,
and such obligation, liability, prejudice or impact can reasonably be
expected to be material, then such settlement shall require Yahoo!'s
written consent, which consent shall not be unreasonably withheld. In
connection with the defense of any such Claim, Yahoo! may have its own
counsel in attendance at all interactions and substantive negotiations at
its own cost and expense.
(b) Subject to the limitations set forth below and the provisions of Section
11.1 and this 11.2, Yahoo!, at its own expense, shall indemnify, defend (or
at Yahoo!'s option and expense, settle) and hold Digital harmless from and
against all judgments, losses, deficiencies, damages, liabilities, costs
and expenses (including, without limitation, reasonable attorneys' fees and
expenses), whether required to be paid to a third party or otherwise
incurred in connection with or arising from any Claim, incurred or suffered
by Digital to the extent the basis of such Claim is that the display of the
"Yahoo!" trademark infringes any trademark rights of a third party;
provided that Yahoo! shall have no obligation to Digital pursuant to this
Section 11.2 (b) unless: (i) Digital gives Yahoo! prompt written notice of
the Claim (except to the extent that Yahoo! already has notice of such
Claim); (ii) Yahoo! is given the right to control and direct the
investigation, preparation, defense and settlement of the Claim; and (iii)
Digital reasonably cooperates with Yahoo! in the defense or settlement
thereof; and provided, further, that if any settlement results in any
ongoing liability to, or prejudices or detrimentally impacts Digital, and
such obligation, liability, prejudice or impact can reasonably be expected
to be material, then such settlement shall require Digital's written
consent, which consent shall not be unreasonably withheld. In connection
with the defense of any such Claim, Digital may have its own counsel in
attendance at all interactions and substantive negotiations at its own cost
and expense.
11.3 DISCLAIMER. THE PROVISIONS OF SECTIONS 11.1 AND 11.2
HEREOF REPRESENT EACH PARTY'S RESPECTIVE ENTIRE OBLIGATION REGARDING ANY
THIRD-PARTY CLAIM ARISING OUT OF THE VAL.
11.4 REMEDIES CUMULATIVE. Except as otherwise expressly
specified herein, the rights and remedies granted to each party under this
Agreement are cumulative and in addition to, and not in lieu of, any other
rights or remedies that such party may possess at law or in equity.
11.5 LIMITATION OF LIABILITIES. EXCEPT FOR A BREACH OF SECTION 0
HEREOF OR EXCEPT TO THE EXTENT OF PAYMENTS EXPRESSLY PROVIDED FOR UNDER
THIS AGREEMENT, IN NO EVENT SHALL A PARTY TO THIS AGREEMENT BE LIABLE FOR
ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING,
WITHOUT LIMITATION, FOR LOST
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PROFITS, IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IN
THE EVENT SUCH PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH
DAMAGES.
GENERAL REPRESENTATIONS AND WARRANTIES.
YAHOO! REPRESENTATIONS AND WARRANTIES. Yahoo! hereby represents and
warrants to Digital that as of the Effective Date:
(a) Yahoo! has the full corporate right, power and authority to enter
into this Agreement and to perform the acts required of it hereunder;
the execution of this Agreement by Yahoo!, and the performance by
Yahoo! of its obligations and duties hereunder, do not and will not violate
any agreement to which Yahoo! is a party or by which it is otherwise bound;
Yahoo! acknowledges that Digital makes no representations,
warranties or agreements related to the subject matter hereof that are not
expressly provided for in this Agreement.
DIGITAL REPRESENTATIONS AND WARRANTIES. Digital hereby represents and
warrants to Yahoo! that as of the Effective Date:
(a) Digital has the full corporate right, power and authority to
enter into this Agreement, to perform the acts required of it, and to grant
the rights granted by it hereunder;
the execution of this Agreement by Digital, and the performance
by Digital of its obligations and duties hereunder, do not and will not
violate any agreement to which Digital is a party or by which it is
otherwise bound; and
Digital acknowledges that Yahoo! makes no representations,
warranties or agreements related to the subject matter hereof that are not
expressly provided for in this Agreement.
TERM AND TERMINATION.
TERM. This Agreement shall become effective on the Effective Date and
shall continue in full force and effect until [XXXX] after the Effective Date,
unless earlier terminated in accordance with this Agreement. Thereafter, this
Agreement will automatically renew on a year-to-year basis for up to three
(3) additional one (1) year terms, unless either party objects to such renewal
in writing at least ninety (90) days prior to the applicable renewal date.
EVENTS OF TERMINATION. This Agreement shall be subject to termination
upon the occurrence of the following events:
if either party hereto defaults on any of its material
obligations, representations or warranties under this Agreement, the
non-defaulting party shall have the right, exercisable in its sole
discretion, to terminate this Agreement by written notice
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describing with reasonable specificity the nature of the default and
requesting that it be cured, unless within ninety (90) calendar days
after written notice of such default the defaulting party remedies the
default;
if (a) either party files a petition for bankruptcy or is
adjudicated a bankrupt; (b) a petition in bankruptcy is filed against
either party; (c) either party becomes insolvent or makes an assignment for
the benefit of its creditors or an arrangement for its creditors pursuant
to any bankruptcy law; (d) either party discontinues its business; or (e) a
receiver is appointed for either party or its business, then the other
party shall have the right to terminate this agreement immediately upon
written notice;
if Yahoo! fails to comply with Section 5, Payment, then Digital
shall have the right, exercisable in its sole discretion, to terminate this
Agreement if such failure is not cured within thirty (30) days written
notice to Yahoo!;
(d) if Digital no longer complies with the Performance Criteria in
Exhibit C, then Yahoo! shall have the right to terminate this Agreement if
such noncompliance is not cured within ninety (90) days written notice to
Digital ("Notice Period") and, if within the first thirty (30) days of the
Notice Period, Digital fails to make commercially reasonable efforts to
cure such noncompliance, then termination may become effective on the
thirtieth (30th) day following Yahoo!'s written notice to Digital
specifying in good faith the reasons for its conclusion that Digital has
failed to take such steps;
(e) [XXXX];
(f) if Yahoo! has any change in the actual or beneficial ownership of
more than fifty percent (50%) of its voting stock in one or more related
transactions such that after such transaction(s), [XXXX], then Digital
shall have the right to terminate this Agreement upon thirty (30) days prior
written notice to Yahoo!.
EFFECT OF TERMINATION.
Termination of this Agreement by either party hereto shall not
act as a waiver of any breach of this Agreement and shall not act as a
release of either party hereto from any liability for breach of such
party's obligations under this Agreement.
Within forty-five (45) calendar days of the expiration or
termination of this Agreement, the parties shall pay to the other party all
sums, if any, due and owing as of the date of expiration or termination.
SURVIVAL. The respective rights and obligations of Digital and Yahoo!
under the provisions of Sections 1, 7, 8.3, 8.4 9, 10, 11, 12, 13.3, 13.4 and 14
hereof shall survive expiration or termination of this Agreement.
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MISCELLANEOUS.
NO JOINT VENTURE. The sole relationship between the parties shall be
that of licensor and licensee. Neither party shall make any warranties or
representations, or assume or create any obligations, on the other party's
behalf except as may be expressly permitted hereunder or in writing by such
other party. Each party shall be solely responsible for the actions of all
their respective employees, agents and representatives.
GOVERNING LAW. This Agreement shall be interpreted and construed in
accordance with the laws of the Commonwealth of Massachusetts, without regard to
the principles of conflicts of laws, and with the same force and effect as if
fully executed and performed therein, and the laws of the United States of
America.
AMENDMENT OR MODIFICATION. This Agreement may not be amended,
modified or supplemented by the parties in any manner, except by an instrument
in writing signed on behalf of each of the parties by a duly authorized officer
or representative.
NO ASSIGNMENT. Neither party shall transfer or assign any rights or
delegate any obligations hereunder, in whole or in part, whether voluntarily or
by operation of law, without the prior written consent of the other party. Any
purported transfer, assignment or delegation by either party without the
appropriate prior written approval shall be null and void and of no force or
effect. Notwithstanding the foregoing, without securing such prior consent,
either party shall have the right to assign this Agreement and the obligations
hereunder to any successor of such party by way of merger, consolidation,
reorganization or the acquisition of substantially all of the business and
assets of the assigning party relating to the Agreement.
NOTICES. Any notice or other communication to be given hereunder
shall be in writing and shall be (as elected by the party giving such notice):
(i) personally delivered; (ii) transmitted by postage prepaid registered or
certified airmail, return receipt requested; or (iii) deposited prepaid with a
nationally recognized overnight courier service. Unless otherwise provided
herein, all notices shall be deemed to have been duly given on: (a) the date of
receipt (or if delivery is refused, the date of such refusal) if delivered
personally or by courier; or (b) three (3) days after the date of posting if
transmitted by mail. Either party may change its address for purposes hereof on
not less than three (3) days prior notice to the other party. Notices hereunder
shall be directed :
If to Yahoo!, to: Gary Valenzuela
Senior Vice President, Finance and Administration
and CFO
Yahoo! Inc.
635 Vaqueros Avenue
Sunnyvale, CA 94086
If to Digital, to: Robert E. Hult
Vice President, Finance & Operations
Internet Software Business Unit
Digital Equipment Corporation
30 Porter Road
Littleton, MA 01460
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ENTIRE AGREEMENT. This Agreement represents the entire agreement of
the parties with respect to the subject matter hereof and supersedes all prior
and/or contemporaneous agreements and understandings, written or oral between
the parties with respect to the subject matter hereof. The parties hereby
acknowledge and agree that the Letter of Intent dated as of June 5, 1996 between
the parties is hereby terminated and of no further force or effect whatsoever.
WAIVER. Any of the provisions of this Agreement may be waived by the
party entitled to the benefit thereof. Neither party shall be deemed, by any
act or omission, to have waived any of its rights or remedies hereunder unless
such waiver is in writing and signed by the waiving party, and then only to the
extent specifically set forth in such writing. A waiver with reference to one
event shall not be construed as continuing or as a bar to or waiver of any right
or remedy as to a subsequent event.
NO THIRD PARTY BENEFICIARIES. Nothing express or implied in this
Agreement is intended to confer, nor shall anything herein confer, upon any
person other than the parties and the respective successors or assigns of the
parties, any rights, remedies, obligations or liabilities whatsoever.
FEES AND EXPENSES. Each party shall be responsible for the payment of
its own costs and expenses, including attorneys' fees and expenses, in
connection with the negotiation and execution of this Agreement.
SEVERABILITY. If the application of any provision or provisions of
this Agreement to any particular facts of circumstances shall be held to be
invalid or unenforceable by any court of competent jurisdiction, then: (i) the
validity and enforceability of such provision or provisions as applied to any
other particular facts or circumstances and the validity of other provisions of
this Agreement shall not in any way be affected or impaired thereby; and (ii)
such provision or provisions shall be reformed without further action by the
parties hereto and only to the extent necessary to make such provision or
provisions valid and enforceable when applied to such particular facts and
circumstances.
COUNTERPARTS; FACSIMILES. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original, and such counterparts together shall constitute one and the
same instrument. Each party shall receive a duplicate original of the
counterpart copy or copies executed by it. For purposes hereof, a facsimile
copy of this Agreement, including the signature pages hereto, shall be deemed to
be an original. Notwithstanding the foregoing, the parties shall each deliver
original execution copies of this Agreement to one another as soon as
practicable following execution thereof.
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IN WITNESS WHEREOF, the parties to this Agreement by their duly authorized
representatives have executed this Agreement as of the date first above written.
DIGITAL EQUIPMENT
CORPORATION YAHOO! INC.
By: By:
------------------------------ ------------------------------
Name:---------------------------- Name:-----------------------------
Title: Title:
---------------------------- ---------------------------
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CONFIDENDIAL
VALUE-ADDED LINK AGREEMENT
by and between
DIGITAL EQUIPMENT CORPORATION
and
YAHOO! INC.
July 3, 1996
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