Operating Agreement [Yahoo! Marketplace LLC] - Yahoo! MarketPlace LLC, Yahoo! Corp. and Visa International Service Association
YAHOO! MARKETPLACE, L.L.C.
OPERATING AGREEMENT
This Operating Agreement (the "Agreement") is entered into as of August 26, 1996
(the "Effective Date") by and among the following parties (the "Parties",
individually a "Party"):
(i) Yahoo! MarketPlace, L.L.C., a Delaware limited liability company
(the "Company") with its principal offices initially at 635 Vaqueros Avenue,
Sunnyvale, California 94086;
(ii) Yahoo! Corporation, a California corporation ("Yahoo") with its
principal offices at 635 Vaqueros Avenue, Sunnyvale, California 94086; and
(iii) Visa International Service Association, a Delaware corporation
("Visa") with its principal offices at 900 Metro Center Boulevard, Foster
City, CA 94404;
with reference to the following:
A. Yahoo owns, operates and distributes a leading guide to Internet resources,
including a hierarchical directory, information indexing and retrieval software
and certain other elements of content and software.
B. Visa, through its member banks, is a leading provider of transaction
payment services and systems.
C. Yahoo, Visa (or a wholly-owned special purpose subsidiary of Visa) and
certain other parties have entered into an Limited Liability Company Agreement
of even date herewith (the "LLC Agreement") for the creation of the Company.
The Company has been formed to develop and operate a navigational service on the
World Wide Web focused on information and resources for the purchase of consumer
products and services over the Internet, which the Parties intend to develop as
the premier electronic commerce interface for both consumers and merchants.
D. The Company, Yahoo and Visa desire to enter into this Agreement in order to
set forth certain agreements relating to the Company and its business, including
the licensing of certain rights and the performance of certain services by Yahoo
and Visa to the Company.
On this basis, the Parties agree as follows:
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1. DEFINITIONS; RULES OF CONSTRUCTION.
1.1 DEFINITIONS. For purposes of this Agreement, in addition to the
capitalized terms defined elsewhere in this Agreement, the following terms shall
have the meanings ascribed to them below. Capitalized terms defined in the LLC
Agreement and not otherwise defined herein shall have the meanings ascribed to
them in the LLC Agreement.
(a) "Affiliates" shall mean Subsidiaries and Related Entities. A
"Subsidiary" shall mean a company in which on a class-by-class basis, more than
fifty percent (50%) of the stock entitled to vote for the election of directors
is owned or controlled by a party, but only so long as such ownership or control
exists. For Visa, a "Related Entity" shall mean an entity (A) at least fifty
percent (50%) of whose stock or other equity is owned collectively by Visa
Members and that has the authority to process Visa payment transactions, but
only so long as such ownership exists; (B) has an equity interest in Visa and is
owned in whole collectively by Visa Members or financial institutions (E.G.,
national or regional group members); or (C) is exclusively managed by Visa or a
national or group member of Visa for the purpose of processing Visa payment
transactions, but only so long as such exclusive management exists.
Notwithstanding anything to the contrary set forth above, however, Subsidiaries
or Related Entities do not include any individual Visa Member, bank or like
financial institution. Visa Affiliates include, for example, without
limitation, Visa USA, Inc., Vital, Inc., Plus and Interlink. For Yahoo,
"Related Entity" shall include any joint venture of which Yahoo owns an equity
interest and to which Yahoo has licensed Yahoo Brand Features in connection with
the commercialization of "Yahoo!" branded products or services.
(b) "Claim" means any judgment, losses, deficiencies, damages,
liabilities, costs and expenses (including 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.
(c) "Company Brand Features" means the Company's trademarks, trade
names, service marks, service names and distinct brand elements that may appear
in the Service from time to time and are protected under copyright law or as to
which the Company may establish trademarks or trade dress rights, and any
modifications to the foregoing that may be created during the term of this
Agreement, but excluding the Yahoo Brand Features and the Visa Brand Features
(e.g., any reference to the word "Yahoo!" or "Visa" or derivatives thereof,
respectively, shall not be deemed to be Company Brand Features).
(d) "Company Properties" means all content and materials developed
for use in the Service (other than the Yahoo Properties and the Visa Properties)
solely by the Company's employees or contractors, including (without limitation)
the Company Brand Features, and the organization, user look-and-feel and other
distinctive elements of the Service, and all Intellectual Property Rights in the
foregoing.
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(e) "Competitive Service" means any WWW Site or other Internet-based
service that is engaged in the MarketPlace Activities in any respect.
(f) "Components" means information, materials, products, features,
services, content, computer software, designs, artistic renderings, drawings,
sketches, characters, layouts, and the digital implementations thereof.
(g) "Confidential Information" means any information of a Party
disclosed to any other Party in the course of this Agreement, which is
identified as, or should be reasonably understood to be, confidential or
proprietary to the disclosing Party, including, but not limited to know-how,
trade secrets, log data, technical processes and formulas, source codes, product
designs, sales, cost and other unpublished financial information, product and
business plans, projections, and marketing data. "Confidential Information"
shall not include information which: (i) is known or becomes known to the
recipient directly or indirectly from a third-party source other than one having
an obligation of confidentiality to the providing Party; (ii) is or becomes
publicly available or otherwise ceases to be secret or confidential, except
through a breach of this Agreement by the recipient; or (iii) is or was
independently developed by the recipient without use of or reference to the
providing Party's Confidential Information, as shown by evidence in the
recipient's possession.
(h) "Consumers" means individuals or businesses who purchase products
and services that are (i) typically purchased at retail (e.g. retail stores,
mail order telephone order, etc.) and (ii) are purchased for use or consumption
by the purchasing individual or business (rather than for resale or as
components or tools used in the manufacture of goods and services).
(i) "Derivative Work" means all "derivative works" and
"compilations," within the meaning of such terms as defined in the U.S.
Copyright Act (17 U.S.C. Section 101 ET SEQ.).
(j) "HTML" means Hypertext Markup Language or any successor or
replacement to HTML.
(k) "Intellectual Property Rights" means trade secrets, patents,
copyrights, service marks, trademarks, know-how, moral rights and similar rights
of any type under the laws of any governmental authority, domestic or foreign
including all applications and registrations relating to any of the foregoing.
(l) "Joint Developments" means all content and materials that are
developed for use in the Service jointly by employees or contractors of the
Company, on the one hand, and employees or contractors of Yahoo and/or employees
or contractors of Visa, on the other hand, and all Intellectual Property Rights
in the foregoing.
(m) "Launch Date" means the date on which the Service is first made
publicly available.
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(n) "Link" means a URL hidden behind a formatting option that may
take the form of a colored item of text (such as a URL description), logo or
image, and which allows a user to automatically move between WWW pages, WWW
Sites or within a WWW document.
(o) "MarketPlace Activities" means [REDACTED]*
(p) "Operating Plan" means the Operating Plan of the Company in
effect from time to time, as defined in the LLC Agreement.
(q) "Percentage Interest" means the "Percentage Interest" in the
Company as defined in the LLC Agreement, or such other measurement of equity
interests into which "Percentage Interests" may hereafter be converted or
exchanged.
(r) "Service" means a WWW Site to be developed and offered by the
Company in accordance with this Agreement to engage in the MarketPlace
Activities in the United States and its territories.
(s) "Service Name" means the name of the Service, which shall be
mutually acceptable to Yahoo and Visa, shall include the name "Yahoo"
prominently (such as in "Yahoo! MarketPlace"), and shall not include the name
"Visa", except to the extent that the Service Name is presented in connection
with the Visa Tagline.
(t) "Term" shall mean the period from the Effective Date through the
dissolution of the Company as provided in the LLC Agreement, or, if sooner, the
date on which this Agreement is terminated in accordance with Section 9.2.
(u) "URL" means Universal Resource Locator, which provides a unique
Internet protocol address for accessing a WWW page, or any similar unique
addressing protocol that may be developed in the future.
(v) "Visa Brand Features" means Visa's trademarks, including the
marks "Visa," "Bring Your Visa Card" the Visa Icon and the Visa Tagline, and all
trade names, service marks, service names and distinct brand elements that Visa
regularly uses in its business and are protected under copyright or trademark
law or as to which Visa has established trademarks or trade dress rights, and
any modifications to the foregoing that may be created during the term of this
Agreement.
* Confidential treatment requested. Omitted portion filed separately
with the Commission.
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(w) "Visa Brand Guidelines" means the guidelines for use of the Visa
Brand Features in the Service, which are attached to this Agreement as
EXHIBIT A.
(x) "Visa Competitors" means [REDACTED]* as well as such other
entities that Yahoo and Visa shall deem to be a Visa Competitor from time to
time.
(y) "Visa Ownership Period" means the period commencing with the
Effective Date and ending on the later to occur of (i) the date the Visa Group
holds, in the aggregate, less than [REDACTED]* of all then outstanding
Percentage Interests; or (ii) the date on which the Visa Brand Features are no
longer used in the Service.
(z) "Visa Icon" means a graphic and/or text image, designated by Visa
(with Yahoo's reasonable approval), in an appropriate size and configuration to
serve as a Link to a Visa WWW Site as described in this Agreement; it being
agreed that the Visa Icon may not be sufficiently large to include the Visa
Tagline or similar amounts of text.
(aa) "Visa Members" means any entity that is a formal member of Visa
pursuant to Visa's Operating Regulations.
(bb) "Visa Operating Contributions" means those services and functions
described on EXHIBIT B, to be provided to the Company by Visa in connection with
this Agreement.
(cc) "Visa Properties" means the Visa Brand Features and any software
or other materials owned or licensed by Visa and provided to the Company
pursuant to this Agreement (including, without limitation, any such materials
relating to transaction payment processing), and all Intellectual Property
Rights in the foregoing.
(dd) "Visa Tagline" means a secondary tagline to be used in connection
with the title of the Service, which will be selected by Visa subject to the
Company's consent, such consent not to be unreasonably withheld, such as
"...bring your Visa card."
(ee) "WWW" means the World Wide Web, a system for accessing and
viewing text, graphics, sound and other media via the collection of computer
networks known as the Internet, and any similar system that may be developed in
the future.
(ff) "WWW Site" means a collection of materials and information made
available on the WWW via one or more related network servers, which collection
is organized around a common theme or organization, and which is accessed
primarily via a single URL.
(gg) "Yahoo Brand Features" means the Yahoo trademark, "Yahoo!", and
directly related distinct brand elements (such as the presentation of the word,
"Yahoo!") regularly appearing in the Yahoo Directory, as well as the other
regularly
* Confidential treatment requested. Omitted portion filed separately
with the Commission.
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appearing distinctive elements and look-and-feel of the Yahoo Directory that are
protected under U.S. copyright law or as to which Yahoo has established
trademarks or trade dress rights (for example, Yahoo's copyright in the
organization and selection of entries in the
Yahoo! directory), and any modifications to the foregoing that may be
created during the term of this Agreement.
(hh) "Yahoo Brand Guidelines" means the guidelines for use of the
Yahoo Brand Features in the Service, which are attached to this Agreement as
EXHIBIT C.
(ii) "Yahoo Competitor " means [REDACTED]*, as well as such other
entities that Yahoo and Visa shall deem to be a "Yahoo Competitor" from time to
time; provided, however, that "Yahoo Competitors" shall not include any entity a
majority of the voting power of which is owned by Visa or one or more Visa
Members.
(jj) "Yahoo Directory" means the collection of HTML files and certain
related scripts comprising a directory to URLs (which directory currently
resides at URL - http://www.yahoo.com), including the other search tools
currently included with such directory, as the same may be maintained from time
to time on any Yahoo WWW Site.
(kk) "Yahoo Directory Tools" means certain software tools described on
EXHIBIT D for use in modifying HTML directories of URLs, in object code (machine
readable) form only, together with any improvements or modifications of the
foregoing that Yahoo may create during the Term.
(ll) "Yahoo Operating Contributions" means those services and
functions described on EXHIBIT E to be provided to the Company by Yahoo in
connection with this Agreement.
(mm) "Yahoo Properties" means the Yahoo Search Engine, the Yahoo
Directory Tools and the Yahoo Brand Features.
(nn) "Yahoo Search Engine" means, collectively, the software programs
used to locate information within the HTML scripts included in the Yahoo
Directory, which are described on EXHIBIT D, together with any improvements,
modifications or substitutions for the foregoing that Yahoo may make publicly
available during the Term.
1.2 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 "hereof," "herein" and
"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
* Confidential treatment requested. Omitted portion filed separately
with the Commission.
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contained in this Agreement. The word "including" when used herein is not
intended to be exclusive and means "including, without limitation." References
herein to section, subsection, attachment or exhibit shall refer to the
appropriate section, subsection 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.
2. OBLIGATIONS OF YAHOO TO THE COMPANY AND VISA.
2.1 EXCLUSIVITY. Yahoo agrees that any and all MarketPlace Activities
will be conducted by Yahoo and its Affiliates exclusively through the Company.
Notwithstanding the foregoing, nothing in this Agreement shall be construed to
restrict Yahoo's right to offer [REDACTED]* and Yahoo! branded merchandise in
any online service developed or operated by Yahoo or any of its Affiliates,
provided that such service is not otherwise engaged in the MarketPlace
Activities.
2.2 GRANT OF LICENSE.
2.2.1 YAHOO BRAND FEATURES. Subject to the terms and conditions
of this Agreement, Yahoo hereby grants to the Company a non-exclusive,
worldwide, fully paid license during the Term to distribute, reproduce, transmit
and display in the Service (in the manner described in this Agreement) the Yahoo
Brand Features in the title and presentation of the Service (including as part
of the Service Name), and in connection with the distribution, marketing and
promotion of the Service, subject in each case to compliance with the Yahoo
Brand Guidelines.
2.2.2 YAHOO SEARCH ENGINE AND DIRECTORY TOOLS. Subject to the
terms and conditions of this Agreement, Yahoo hereby grants to the Company an
irrevocable and perpetual non-exclusive, worldwide, fully paid license to:
(a) Use, reproduce and make available through the Service (in object
code form only) the Yahoo Search Engine; and
(b) Use and reproduce the Yahoo Directory Tools in connection with
the development and maintenance of the Service.
2.3 SOFTWARE MAINTENANCE. During the Term, Yahoo shall promptly notify
the Company of any defects or malfunctions in the Yahoo Search Engine or the
Yahoo Directory Tools or any operator or user manuals, training materials,
guides, listings, specifications and other materials used in conjunction with
the same (collectively,
* Confidential treatment requested. Omitted portion filed separately with
the Commission.
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"Documentation") of which it learns from any source and which have an adverse
effect on the business of the Company. Yahoo shall promptly correct any such
defects or malfunctions in the Yahoo Search Engine, the Yahoo Directory Tools or
the Documentation discovered during such period and provide the Company with
corrected copies of same, without charge. Yahoo's obligation hereunder shall
not affect any other liability which it may have to the Company.
2.4 CERTAIN LIMITATIONS ON COMPETITIVE ACTIVITIES. During the Term, Yahoo
will not use or license any of its Intellectual Property Rights in the Yahoo
Search Engine, the Yahoo Directory, the Yahoo Directory Tools, or the name,
"Yahoo", for use in any Competitive Service.
2.5 OPERATIONAL ASSISTANCE. During the Term, Yahoo will provide the
Company with the Yahoo Operating Contributions, at no cost to the Company or
Yahoo (except as set forth herein), as well as such other support as Yahoo and
the Company shall mutually agree. Yahoo shall be reimbursed by the Company on a
monthly basis for Yahoo's direct out-of-pocket expenses incurred in connection
with such activities, which shall be determined by Yahoo and the Company on an
arms-length basis, and a reasonably detailed explanation of which shall be
provided to the members of the Board of the Company concurrently with the
regular delivery of financial information about the Company. The Company shall
not be obligated to reimburse Yahoo for any such expenses until such expenses
have been reviewed and approved by the Board of the Company.
2.6 YAHOO DIRECTORY PROMOTIONS FOR THE SERVICE. At no expense to the
Company or Visa, Yahoo will for a period of [REDACTED]* from the Launch Date:
2.6.1 Display in the primary "Navigation Bar" above the fold on
the top page of the Yahoo Directory a Link to the front page (i.e., the page
delivered in response to the primary URL of the Service) of the Service (which
Link shall include the Visa Icon), in a precise location on such page and in a
form as Yahoo shall determine; and no Competitive Service shall be similarly
referenced during this period on the top page of the Yahoo Directory.
2.6.2 Display a Link to the Service in other appropriate locations
throughout the Yahoo Directory as Yahoo shall determine, in its reasonable
discretion.
2.6.3 Display a Link to the Service every [REDACTED]* for a
minimum of [REDACTED]*, which need not be consecutive, along the top page
promotional marquee of the Yahoo Directory which promotional marquee shall be
above the fold on the top page.
2.6.4 To the extent that Yahoo licenses any portion of the Yahoo
Directory to third parties for inclusion in such parties' WWW Sites, use
commercially reasonable efforts to include the Link to the Service described in
Section 2.6.1 (including
* Confidential treatment requested. Omitted portion filed separately with
the Commission.
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the Visa Tagline) in such third party licensed WWW Site in substantially the
same manner as it may appear in the Yahoo Directory.
2.7 YAHOO DIRECTORY PROMOTIONS FOR VISA. At no expense to the Company or
Visa, Yahoo will for a period of [REDACTED]* from the Launch Date:
2.7.1 Place a Visa Icon on the lower left hand corner of the front
page of the Yahoo Directory, or such other locations as Visa shall approve;
provided, however, that if after the Effective Date Yahoo materially changes the
size or configuration of the
front page and as a result of such change the Visa Icon is no longer in an as
desirable location on the front page, Visa and Yahoo will work together in good
faith to determine a new location for the Visa Icon, which location shall be
comparable to the location of the Visa Icon prior to the change. Yahoo's
obligation to place the Visa Icon on the front page shall terminate immediately
if any WWW page referenced by the Link in the Visa Icon includes a Link to any
Yahoo Competitor. For such period no Visa Competitor shall receive reference
placement or presentation that is equal to or superior to the Visa Icon in terms
of prominence, placement and similar factors.
2.7.2 To the extent that Yahoo licenses any portion of the Yahoo
Directory to third parties for inclusion in such parties' WWW Sites, use
commercially reasonable efforts to include the Visa Link described in Section
2.7.1 in such third party licensed WWW Site in substantially the same manner as
it appears in the Yahoo Directory.
3. OBLIGATIONS OF VISA TO THE COMPANY AND YAHOO.
3.1 USE OF VISA BRAND FEATURES. During the Term, the Company shall be
entitled in connection with the Service to use, reproduce and transmit the Visa
Icon and the Visa Tagline, as well as such other Visa Brand Features as Visa
shall approve, acting reasonably. The Visa Brand Features shall be used by the
Company only in compliance with the Visa Brand Guidelines.
3.2 OPERATIONAL ASSISTANCE. From the Effective Date through twenty-four
(24) months following the Launch Date, Visa will provide the Company with the
Visa Operating Contributions at no cost to the Company (except as set forth
herein), as well as such other support as Visa and the Company shall mutually
agree. Such activities will be undertaken actively by Visa, particularly
during the first twelve (12) months following the Effective Date, consistent
with the Operating Plan.
3.3 CERTAIN LIMITATIONS ON COMPETITIVE ACTIVITIES.
3.3.1 For a period of [REDACTED]* following the Effective Date,
Visa will not (a) actively promote, by means of any system-wide marketing
effort, any Yahoo Competitor, or (b) enter into any joint branding relationship
with any Yahoo Competitor
* Confidential treatment requested. Omitted portion filed separately with
the Commission.
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that involves the use of the "Visa" name as part of the name of such Yahoo
Competitor's Competitive Service.
3.3.2 Notwithstanding the provisions of Section 3.3.1, it is
understood that (a) Visa will make its payment methods available to other
companies that provide services that may be competitive with those of Yahoo and
the Service; (b) Visa will place advertisements with other companies that
provide services that may be competitive with those of Yahoo and the Service;
and (c) such restrictions shall not prohibit any Visa Members from entering into
credit or debit card co-branding agreements with any third party.
3.4 VISA PROMOTION OF THE SERVICE. For a period of three (3) years
following the Launch Date, Visa will agree to provide, at no expense to the
Company or Yahoo,
(a) a Link to the Service (in such form as the Company shall provide, which
shall be reasonably acceptable to Visa) on the top page of Visa's principal WWW
Site; and (b) advertisement placements for the Service (in such form as the
Company shall provide, which shall be reasonably acceptable to Visa) on
additional pages in Visa's principal WWW Site consistent with the Operating
Plan.
3.5 VISA PROMOTION OF THE YAHOO DIRECTORY. For a period of [REDACTED]*
following the Launch Date, Visa will, at no expense to Yahoo or the Company,
include a Link (in such form as Yahoo shall provide, which shall be reasonably
acceptable to Visa) to the Yahoo Directory on the top page of Visa's principal
WWW Site; provided that Visa's obligation to place such Yahoo Link shall
terminate immediately if any WWW page referenced by such Yahoo Link includes a
Link to any Visa Competitor. For such period, Yahoo will also be featured as
the premiere Internet navigational service in terms of prominence, placement and
similar factors.
3.6 VISA ADVERTISING ON THE YAHOO DIRECTORY. Visa will purchase no less
than a total of [REDACTED]* of advertising on the Yahoo Directory within
[REDACTED]* from the Effective Date, at prices and terms that shall be
[REDACTED]*. Such minimum advertising purchases shall be in addition to the
advertising contracts that have already been signed by Visa and Yahoo prior to
the Effective Date.
4. OBLIGATIONS OF THE COMPANY TO YAHOO AND VISA.
4.1 PROVISIONS RELATING TO THE SERVICE. The Company agrees with Yahoo and
Visa as follows with respect to the Service:
4.1.1 It is anticipated that there will not be a subscription fee
for consumers who use the Service, but there may be a fee for merchants listed
in the Service as determined by the Company. It is anticipated that the
principal sources of revenue for the Service will be advertising fees. It is
anticipated that the Service may generate revenues from transaction fees through
relationships with merchants participating in the
* Confidential treatment requested. Omitted portion filed separately with
the Commission.
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Service, which revenues, in the absence of any other agreement with Yahoo and
Visa, will be retained by the Company. The fee structure utilized by the
Company will not distinguish or discriminate among different methods of payment
by consumers.
4.1.2 It is understood that the Service may include sub-sets of
commerce content that will be developed by Yahoo and/or others. This commerce
content will be included under the distinct umbrella brand of the Service and,
where appropriate, the Company will enter into commercial relationships directly
with such content providers. The Company management will consult with Yahoo and
Visa with respect to such content relationships.
4.1.3 It is understood that the Company may, in its sole
discretion, accept payment methods for goods and services purchased through the
Service other than Visa payment methods; provided, that:
(i) So long as Visa or its Affiliates own any Percentage
Interest in the Company or the Company is using the Visa Brand Features in the
Service, (a) the Company will ensure that Visa will be the default payment
method (i.e., the method not requiring any additional selection action by the
user) for the purchase of goods and services anywhere in the Service where the
Company has the ability to make such decisions (i.e., where the transaction is
processed on network servers operated by or on behalf of the Company); (b) the
Company will use reasonable efforts to ensure that Visa will be the default
payment method anywhere else in the Service where the Company has the ability to
influence such decisions; (c) there shall be a Visa Icon on any portal page or
transfer page to any merchants participating in the Service; and (d) Visa will
receive superior placement (in terms of prominence, placement or size) for the
Visa Icon (A) at any location in the Service and (B) at any location in merchant
WWW Sites where companies in businesses similar to the businesses of Visa are
listed or promoted, where the Company has the ability to influence such
decisions.
(ii) For a period of [REDACTED]* from the Effective Date (or such
longer period as the parties may mutually agree), the Company and Yahoo will not
actively promote any Visa Competitor; provided that neither Yahoo nor the
Company shall be restricted from presenting advertising or promotions from Visa
Competitors in accordance with the standard advertising and promotional
practices of Yahoo and the Company, so long as such advertising or promotions do
not state that a Visa Competitor is the preferred method of payment on Yahoo or
the Service.
4.1.4 So long as Visa or its Affiliates own any Percentage
Interest in the Company or the Company is using the Visa Brand Features in the
Service, the Company will cooperate with Visa, to create a method for users of
the Service to apply for a Visa card from the front page of the Service by
"clicking" on the Visa reference on such page. This method shall be mutually
acceptable to Visa and the Company.
* Confidential treatment requested. Omitted portion filed separately with
the Commission.
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4.1.5 It is understood by the parties that Visa has financial
arrangements with merchants and with cardholders that involve transaction fees,
financing fees, member fees, and similar charges. The Parties acknowledge and
agree that these financial arrangements will not in any way be affected by
Visa's or its Affiliates' participation in the Company or the Service.
4.1.6 It is understood and agreed that the Company may enter into
commercial relationships with other third parties for the promotion and
distribution of the Service, which relationships may include, without
limitation, the presentation of third party brands, services, content and other
materials in the Service; provided that, during the Visa Ownership Period, the
Company will not enter into any co-branding relationships or other contractual
relationships with any Visa Competitor, except for any non-promotional
contractual relationships solely for the purpose of permitting settlement of
online transactions with payment systems that may be offered by Visa
Competitors.
4.2 COMPANY RESPONSIBILITY. The Company shall have all primary
responsibility for the development, implementation, operation and maintenance of
the Service, including with respect to those activities as to which Yahoo or
Visa have agreed to provide support and assistance as set forth in this
Agreement.
4.3 GEOGRAPHIC LIMITATIONS. The Company agrees that (i) the Service shall
focus on serving only Consumers located within the United States and its
territories, (ii) Yahoo and Visa have reserved the right, in their discretion,
to offer services similar to the Service for Consumers located outside of the
United States and its territories ("Non-U.S. Services") and (iii) the Company
shall have no right to participate in the ownership, income or profits with
respect to any Non-U.S. Services. Yahoo and Visa agree that any and all
Non-U.S. Services shall be jointly owned and operated by Yahoo and Visa (or a
wholly-owned special purpose subsidiary of Visa) and that each of Visa and Yahoo
will receive all of the analogous benefits of this Agreement with respect to all
Non-U.S. Services, so long as each of Yahoo and Visa agree to perform the
analogous duties described in this Agreement and so long as each of Visa and
Yahoo assists in the funding for the new region's activities, such funding being
proportional to its equity share in any entity created by Yahoo and Visa (or a
special purpose wholly-owned subsidiary of Visa) at that time. To the extent
that Visa has been provided with the reasonable opportunity to participate on
such basis in any international MarketPlace Activities and has not committed in
writing to participate on such terms within ninety (90) days following notice of
any such opportunity (and the related terms in reasonable detail) by Yahoo,
Yahoo shall be free to pursue such activities separately and without any duty to
account to the Company or Visa; provided that Visa will use its best efforts to
provide any such notice (or indication that it does not intend to pursue such an
opportunity) within sixty (60) days following Yahoo's notice.
* Confidential treatment requested. Omitted portion filed separately with
the Commission.
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5. CONFIDENTIAL INFORMATION.
5.1 PROTECTION OF CONFIDENTIAL INFORMATION. Each of the Parties
recognizes that, in connection with the performance of this Agreement, each of
them may disclose to the others such Party's Confidential Information. Each
Party receiving any Confidential Information from another 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 purpose for
which it was originally disclosed to the receiving Party, and not to disclose
any of such Confidential Information to any third party. No Party shall disclose
any other Party's Confidential Information to its employees and agents except on
a need-to-know basis.
5.2 PERMITTED DISCLOSURE. The Parties acknowledge and agree that each may
disclose Confidential Information: (i) as required by law; (ii) to their
respective directors, officers, employees, attorneys, accountants and other
advisors, who are under an obligation of confidentiality, on a "need-to-know"
basis; (iii) to investors or joint venture partners, who are under an obligation
of confidentiality, on a "need-to-know" basis; or (iv) in connection with
disputes or litigation between the parties involving such Confidential
Information and each Party shall endeavor to limit disclosure to that purpose
and to ensure maximum application of all appropriate judicial safeguards (such
as placing documents under seal).
5.3 APPLICABILITY. The foregoing obligations of confidentiality shall
apply to directors, officers, employees and representatives of the Parties and
any other person to whom, in connection with the performance of this Agreement,
the Parties have delivered copies of, or permitted access to, such Confidential
Information and each party shall advise each of the above of the obligations set
forth in this Section 5.
5.4 THIRD PARTY CONFIDENTIAL INFORMATION. Any Confidential Information of
a third party disclosed to any Party shall be treated by such Party in
accordance with the terms under which such third party Confidential Information
was disclosed; provided that the Party disclosing such third party Confidential
Information shall first notify the receiving Party that such information
constitutes third party Confidential Information and the terms applicable to
such third party Confidential Information and provided further that any Party
may decline, in its sole discretion, to accept all or any portion of such third
party Confidential Information.
5.5 CONFIDENTIALITY OF AGREEMENT. Except as required by law (including,
without limitation, applicable disclosure requirements of the Securities and
Exchange Commission) or generally accepted accounting principles, and except to
assert its rights hereunder or for disclosures to its own officers, directors,
employees and professional advisers on a need-to-know basis or in confidence
to investors, investment bankers, financial institutions or other lenders or
acquirers, 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 Parties,
which consent shall not be unreasonably withheld or delayed.
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5.6 FUTURE BUSINESS ACTIVITIES. This Agreement shall not limit any
Party's present and future business activities of any nature, including business
activities which could be competitive with any other Party, except to the extent
such activities would involve a breach of (i) the confidentiality restrictions
contained in this Section or (ii) any other express provision of this Agreement.
Nothing in this Agreement will be construed as a representation or agreement
that the recipient of Confidential Information will not develop or have
developed for it products, concepts, systems or techniques contemplated by or
embodied in such Confidential Information, provided that such recipient does not
violate any of its obligations under Section 5 of this Agreement in connection
with such development.
5.7 NON-DISCLOSURE AGREEMENT. The confidentiality provisions contained in
this Section 5 supersede any prior Non-Disclosure Agreement between the Parties;
provided that no party shall be relieved of liability for any breach of such
Non-Disclosure Agreement prior to the Effective Date.
6. REPRESENTATIONS AND WARRANTIES; CERTAIN COVENANTS.
6.1 AUTHORITY. Each Party represents and warrants to each other Party
that:
6.1.1 CORPORATE AUTHORITY; NO CONFLICT; BINDING AGREEMENT. Such
Party has the full corporate right, power and authority to enter into this
Agreement and to perform the acts required of it hereunder; and the execution of
this Agreement by such Party; the performance by such Party of its obligations
and duties hereunder, do not and will not violate any agreement to which such
Party is a party or by which it is otherwise bound; and when executed and
delivered by such Party, this Agreement will constitute the legal, valid and
binding obligation of such Party, enforceable against such Party in accordance
with its terms.
6.1.2 NO IMPLIED REPRESENTATIONS OR WARRANTIES. Such Party
acknowledges that no other Party has made any representations, warranties or
agreements related to the subject matter hereof that are not expressly provided
for in this Agreement or the LLC Agreement.
6.2 NO INFRINGEMENT. Such Party will use its reasonable efforts to ensure
that the Components which such Party includes in or associates with the Service
(including, without limitation, the Yahoo Properties and the Visa Properties) do
not and shall not (i) infringe on or violate any Intellectual Property Right of
any third party; or (ii) violate any applicable law, regulation or third party
right when included in a manner consistent with this Agreement. In the event
that any Party becomes aware of any such infringement (or alleged infringement)
or violation, such Party will promptly notify the other Parties and shall
provide all information relating to such matters as such other Parties may
reasonably request.
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7. OWNERSHIP AND RESERVED RIGHTS.
7.1 RESERVED RIGHTS OF YAHOO.
7.1.1 LICENSE LIMITATIONS. In using the Yahoo Properties pursuant
to this Agreement, the Company acknowledges and agrees that: (a) the Company
will use the Yahoo Properties only in accordance with the Yahoo Brand
Guidelines, (b) the Yahoo Properties are and shall remain the property solely of
Yahoo and its licensors; (c) nothing in this Agreement shall confer in the
Company any right of ownership in the Yahoo Properties; and (d) the Company
shall not now or in the future contest the validity of the trademarks, service
marks or other Yahoo Brand Features.
7.1.2 YAHOO OWNERSHIP. Yahoo shall retain all ownership rights in
and to the Yahoo Properties, including, without limitation, any Yahoo Brand
Features that may be incorporated into the Service or its distinctive trademarks
or trade names and any Derivative Works of the Yahoo Properties that may be
created by the Company. The Company hereby assigns to Yahoo any ownership
interest it may be deemed to possess in the Yahoo Properties and during the Term
and thereafter will assist Yahoo in every reasonable way, at Yahoo's expense, to
obtain, secure, perfect, maintain, defend and enforce for Yahoo's benefit all
Intellectual Property Rights with respect to the Yahoo Properties. Except as
expressly provided in this Agreement, Yahoo shall be entitled to exercise all
rights of ownership of the Yahoo Properties, including (without limitation) the
right to license the Yahoo Properties to any other party.
7.1.3 LICENSES BACK.
(a) The Company hereby grants to Yahoo a non-exclusive,
fully-paid, worldwide, perpetual license (with the right to sublicense) to use,
reproduce, distribute and display any Company Properties (including, without
limitation, any Company Properties that constitute Derivative Works of any Yahoo
Properties) and to create Derivative Works therefrom (other than any Company
Properties or Derivative Works created from Visa Properties or from materials
that constitute Visa Operating Contributions described in Section 7.1.3(b)),
subject to all of the competitive limitations and other restrictions upon Yahoo
activities set forth in this Agreement (including, without limitation, that
Yahoo will not use or permit the use of any Company Properties or Derivative
Works created from Company Properties during the Term in connection with any
Competitive Service.)
(b) The Company hereby grants to Visa a non-exclusive,
fully-paid, worldwide, perpetual license (with right to sublicense) to use,
reproduce, distribute and display any Company Properties that constitute
Derivative Works of any Visa Properties and to create Derivative Works
therefrom, subject to all of the competitive limitations and other restrictions
on Visa activities set forth in this Agreement; provided that during the Term
Visa will not use or permit the use of any such Derivative Works (as
distinguished from any underlying Visa Operating Contribution) in connection
with any Competitive Service.
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(c) The Company agrees that Yahoo and Visa may be involved in
the development and operation of Non-U.S. Services. The Company hereby grants
to each of Visa and Yahoo, a non-exclusive, fully-paid, perpetual, worldwide
license (with rights to sublicense) to use, reproduce, distribute and display
any and all Company Properties and to create Derivative Works therefrom for the
sole purpose of creating, owning and operating Non-U.S. Services in accordance
with the provisions of Section 4.3 (Geographic Limitations) hereof.
(d) The foregoing licenses shall survive any termination or
expiration of this Agreement.
7.2 RESERVED RIGHTS OF VISA.
7.2.1 LICENSE LIMITATIONS. In using the Visa Properties pursuant
to this Agreement, the Company acknowledges and agrees that: (a) the Company
will use the Visa Properties only in accordance with the Visa Brand Guidelines,
(b) the Visa Properties are and shall remain the property solely of Visa and its
licensors; (c) nothing in this Agreement shall confer in the Company any right
of ownership in the Visa Properties; and (d) the Company shall not now or in the
future contest the validity of the trademarks, service marks or other Visa Brand
Features.
7.2.2 VISA OWNERSHIP. Visa shall retain all ownership rights in
and to the Visa Properties including without limitation, any Visa Brand Features
that may be incorporated into the Service or its distinctive trademarks or trade
names and any Derivative Works of the Visa Properties that may be created by the
Company. The Company hereby assigns to Visa any ownership interest it may be
deemed to possess in the Visa Properties and during the Term and thereafter will
assist Visa in every reasonable way, at Visa's expense, to obtain, secure,
perfect, maintain, defend and enforce for Visa's benefit all Intellectual
Property Rights with respect to the Visa Properties. Except as expressly
provided in this Agreement, Visa shall be entitled to exercise all rights of
ownership of the Visa Properties, including (without limitation) the right to
license the Visa Properties to any other party.
7.3 JOINT DEVELOPMENTS. The Company hereby grants to each of Yahoo and
Visa a non-exclusive, world-wide, perpetual, fully-paid license (with rights to
sublicense) to use, reproduce, distribute and display any and all Joint
Developments and to create Derivative Works therefrom for use in any Non-U.S.
Service. Neither Yahoo nor Visa shall undertake a Joint Development without
first either obtaining the written consent of any Party not participating in the
development of the Joint Development as to the scope and subject matter of such
Joint Development or having the scope and subject matter of the Joint
Development approved by the Board. The Company, Yahoo and Visa shall jointly
own all Joint Developments developed collectively by (i) employees or
contractors of the Company, (ii) employees or contractors of Visa and
(iii) employees or contractors of Yahoo, and, to the extent such Joint
Developments are distinct from the Company Properties, the Yahoo Properties and
the Visa Properties, each Party shall be
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entitled to exercise all rights of ownership with respect to such Joint
Developments, without any duty to account to any other Party; provided that
Visa's and Yahoo's use of any such Joint Developments shall be subject to all of
the competitive limitations and other restrictions upon their activities set
forth in this Agreement (including, without limitation, that each of Visa and
Yahoo will not use any such Joint Developments during the Term in connection
with any Competitive Service). The foregoing license shall survive any
expiration or termination of this Agreement.
7.3.1 YAHOO JOINT DEVELOPMENTS. The Company and Yahoo shall
jointly own all Joint Developments developed by employees or contractors of the
Company and employees or contractors of Yahoo, and, to the extent such Joint
Developments are distinct from the Company Properties, on the one hand, and the
Yahoo Properties on the other hand, each party shall be entitled to exercise all
rights of ownership with respect to such Joint Developments, without any duty to
account to the other party; provided that Yahoo's use of any such Joint
Developments shall be subject to all of the competitive limitations and other
restrictions upon Yahoo activities set forth in this Agreement (including,
without limitation, that Yahoo will not use or permit the use of any such Joint
Developments during the Term in connection with any Competitive Service.
7.3.2 VISA JOINT DEVELOPMENTS. The Company and Visa shall jointly
own all Joint Developments developed by employees or contractors of the Company
and employees or contractors of Visa, and, to the extent such Joint Developments
are distinct from the Company Properties, on the one hand, and the Visa
Properties on the other hand, each party shall be entitled to exercise all
rights of ownership with respect to such Joint Developments, without any duty to
account to the other party; provided that during the Term Visa will not use or
permit the use of any such Joint Developments in connection with any Competitive
Service.
7.4 RESTRICTIONS. No licenses are granted by Yahoo or Visa except for
those expressly set forth in this Agreement. Except to the extent expressly
provided in this Agreement, the Company shall not (i) modify, adapt, translate
or create Derivative Works based on the Yahoo Properties or the Visa Properties,
or (ii) remove any copyright, trademark or other proprietary rights notices from
the Yahoo Properties or the Visa Properties.
8. LIMITATION OF LIABILITY; DISCLAIMER; INDEMNIFICATION.
8.1 LIABILITY. EXCEPT AS PROVIDED IN SECTION 8.3, UNDER NO CIRCUMSTANCES
SHALL ANY PARTY BE LIABLE TO ANY OTHER PARTY FOR INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY PROVISION OF THIS
AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS
OR LOST BUSINESS.
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8.2 NO ADDITIONAL WARRANTIES. EXCEPT AS SET FORTH IN THIS AGREEMENT, NO
PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS AND
SERVICES CONTEMPLATED BY THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, AS TO
THE OPERATION OF THE YAHOO SEARCH ENGINE OR YAHOO DIRECTORY TOOLS), INCLUDING
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND
IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
8.3 INDEMNIFICATION.
8.3.1 YAHOO INDEMNIFICATION. Subject to the limitations set forth
below, Yahoo, at its own expense, shall indemnify, defend (or at Yahoo's option
and expense, settle) and hold the Company, any Company Affiliates, Visa, any
Visa Affiliates, and their officers, directors, employees, agents, distributors
and licensees (collectively, the "indemnified parties") harmless from and
against any Claim against the indemnified party to the extent the basis of such
Claim is that: (A) the Yahoo Properties infringe any Intellectual Property
Right of a third party; (B) Yahoo does not have the right to license the Yahoo
Properties as set forth herein; or (C) a third party has been or may be injured
or damaged in any way by any material breach by Yahoo of any of its duties,
representations or warranties under this Agreement; provided that Yahoo shall
have no obligation to the indemnified parties pursuant to this Section unless
(x) the indemnified party gives Yahoo prompt written notice of the Claim;
(y) Yahoo is given the right to control and direct the investigation,
preparation, defense and settlement of the Claim; and (z) the indemnified party
provides Yahoo with reasonable assistance in the defense or settlement thereof;
and provided further that if any settlement results in any ongoing liability to,
or prejudices or detrimentally impacts the indemnified party, and such
obligation, liability, prejudice or impact can reasonably be expected to be
material, then such settlement shall require the indemnified party's written
consent. In connection with the defense of any such Claim, each indemnified
party may have its own counsel in attendance at all public interactions and
substantive negotiations at its own cost and expense.
8.3.2 VISA INDEMNIFICATION. Subject to the limitations set forth
below, Visa, at its own expense, shall indemnify, defend (or at Visa's option
and expense, settle) and hold the Company, any Company Affiliates, Yahoo, any
Yahoo Affiliates and their officers, directors, employees, agents, distributors
and licensees (collectively, the "indemnified parties") harmless from and
against any Claim against the indemnified party to the extent the basis of such
Claim is that: (A) the Visa Properties infringe any Intellectual Property Right
of a third party; (B) Visa does not have the right to license the Visa
Properties as set forth herein; or (C) a third party has been or may be injured
or damaged in any way by any material breach by Visa of any of its duties,
representations or warranties under this Agreement; provided that Visa shall
have no obligation to the indemnified parties pursuant to this Section unless
(x) the indemnified party gives Visa
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prompt written notice of the Claim; (y) Visa is given the right to control and
direct the investigation, preparation, defense and settlement of the Claim; and
(z) the indemnified party provides Visa with reasonable assistance in the
defense or settlement thereof; and provided further that if any settlement
results in any ongoing liability to, or prejudices or detrimentally impacts the
indemnified party, and such obligation, liability, prejudice or impact can
reasonably be expected to be material, then such settlement shall require the
indemnified party's written consent. In connection with the defense of any such
Claim, each indemnified party may have its own counsel in attendance at all
public interactions and substantive negotiations at its own cost and expense.
8.3.3 COMPANY INDEMNIFICATION. Subject to the limitations set
forth below the Company, at its own expense, shall indemnify, defend (or at the
Company's option and expense, settle) and hold Visa, any Visa Affiliates, Yahoo,
any Yahoo Affiliates and their officers, directors, employees, agents,
distributors and licensees (collectively, the "indemnified parties") harmless
from and against any Claim against the indemnified party to the extent the basis
of such Claim is that: (A) the Company Properties infringe any Intellectual
Property Right of a third party; (B) a third party has been or may be injured or
damaged in any way by any material breach by the Company of any of its duties,
representations or warranties under this Agreement; (C) any Company Properties
are defamatory, libelous, slanderous, inaccurate or otherwise results in injury
or damage to any person; and (D) there is any other liability or obligation of
the Company arising out of the Company's development and operation of the
Service, which liability or obligation does not result from any intentional
misconduct or gross negligence of the indemnified party or its Affiliates;
provided that the Company shall have no obligation to the indemnified parties
pursuant to this Section unless (x) the indemnified party gives the Company
prompt written notice of the Claim; (y) the Company is given the right to
control and direct the investigation, preparation, defense and settlement of the
Claim; and (z) the indemnified party provides the Company with reasonable
assistance in the defense or settlement thereof; and provided further that if
any settlement results in any ongoing liability to, or prejudices or
detrimentally impacts the indemnified party, and such obligation, liability,
prejudice or impact can reasonably be expected to be material, then such
settlement shall require the indemnified party's written consent. In connection
with the defense of any such Claim, each indemnified party may have its own
counsel in attendance at all public interactions and substantive negotiations at
its own cost and expense.
9. TERM.
9.1 TERM OF AGREEMENT. This Agreement shall be effective from the
Effective Date until the earlier to occur of (i) the dissolution of the Company
as provided in the LLC Agreement, and (ii) termination of this Agreement
pursuant to Section 9.2.
9.2 GROUNDS FOR TERMINATION. Notwithstanding Section 9.1, any party may,
at its sole option, terminate this Agreement in the event that:
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(i) Any other party breaches any of its obligations, representations
or warranties under this Agreement in any material respect and fails to cure
such breach within thirty (30) days of receiving notice thereof;
(ii) Any other party makes an assignment for the benefit of its
creditors, a voluntary or involuntary petition is filed with respect to such
party under any bankruptcy or insolvency law, under the reorganization or
arrangement provisions of the United States Bankruptcy Code, or under the
provisions of any law of like import in connection with such party (which
filing, if involuntary, is not lifted within sixty (60) days following filing),
or the appointment of a trustee or receiver for such party or its property;
(iii) the Launch Date fails to occur within [REDACTED]* after the
Effective Date; or
(iv) with respect to Yahoo and Visa only, either of Yahoo or its
Affiliates on the one hand or Visa or its Affiliates on the other hand, no
longer owns any Percentage Interest in the Company, provided that the election
to terminate this Agreement may only be made by the Party that continues to own
a Percentage Interest in the Company.
9.3 RETURN OF INFORMATION. Within thirty (30) calendar days after the
termination or expiration of this Agreement, each Party shall either deliver to
each other Party, or destroy, all copies of any Confidential Information of such
other Parties provided hereunder in its possession or under its control, and
shall furnish to such other Parties an affidavit signed by an officer of its
company certifying that to the best of its knowledge, such delivery or
destruction has been fully effected.
9.4 SURVIVAL. No termination of this Agreement by one Party shall affect
the rights and obligations hereunder of the other Parties to each other. The
respective rights and obligations of the Parties under Sections 2.2.2, 2.3, 4.3,
5, 7, 8, 9.3 and 10 shall survive any expiration or termination of this
Agreement. No termination or expiration of this Agreement shall relieve any
Party for any liability for any breach of or liability accruing under this
Agreement prior to termination.
10. MISCELLANEOUS.
10.1 INDEPENDENT CONTRACTORS. The Parties to this Agreement are
independent contractors. No Party is an agent, representative, or partner of
any other Party. No Party shall have any right, power or authority to enter
into any agreement for or on behalf of, or incur any obligation or liability of,
or to otherwise bind, any other Party. This Agreement shall not be interpreted
or construed to create an association, agency, joint venture or partnership
between the Parties or to impose any liability attributable to such a
relationship upon any Party. Neither Yahoo nor Visa shall have any liability
whatsoever for the obligations of the Company hereunder or otherwise,
notwithstanding any
* Confidential treatment requested. Omitted portion filed separately with
the Commission.
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ownership interest in the Company of Yahoo, Visa or their respective Affiliates,
or their involvement or participation in the activities of the Company.
10.2 GOVERNING LAW. This Agreement shall be interpreted and construed in
accordance with the laws of the State of California, without reference to
conflicts of laws principles.
10.3 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.
10.4 NO ASSIGNMENT. No 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 any 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,
each Party shall have the right to assign this Agreement and all of its rights
or obligations to (x) any Affiliate of such Party (provided that such Party
remains liable for its obligations hereunder), or (y) any successor of such
Party by way of merger or consolidation or the acquisition of all or
substantially all of the business and assets of the assigning Party relating to
the Agreement, provided that such assignee (i) has at least the same net worth
after such transaction as the assigning Party has immediately prior to such
transaction, (ii) assumes in writing all of the assigning Party's obligations
under this Agreement, and (iii) is not a direct business competitor with any
other Party.
10.5 NOTICES; APPROVALS. Except as otherwise provided herein, 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; (iii) transmitted by electronic mail via the Internet with
receipt being acknowledged by the recipient by return electronic mail (with a
copy of such transmission transmitted by postage prepaid registered or certified
airmail, return receipt requested); (iv) transmitted by facsimile (with a copy
of such transmission by postage paid prepaid registered or certified airmail,
return receipt requested); or (v) 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, by electronic
mail, facsimile or by courier; or (b) three (3) days after the date of posting
if transmitted by mail. Either party may change its address for notice purposes
hereof on not less than three (3) days prior notice to the other party. Notice
hereunder shall be directed to a Party at the address for such Party which is
set forth in the introduction to this Agreement, attention "President".
10.6 ENTIRE AGREEMENT. This Agreement and the LLC Agreement represent the
entire agreement of the parties with respect to the subject matter hereof and
supersedes all
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prior and/or contemporaneous agreements and understandings, written or oral
between the parties with respect to the subject matter hereof (including the
letter agreement between Yahoo and Visa dated March 27, 1996). No party has
relied upon any promises, inducements, representations made by any other Party
or expectations of further business dealings except as expressly provided in
this Agreement.
10.7 WAIVER. Any of the provisions of this Agreement may be waived by the
Party entitled to the benefit thereof. No 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.
10.8 WAIVER OF JURY TRIAL. EACH OF YAHOO, VISA AND THE COMPANY DO HEREBY
KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVE SUCH RIGHT ANY PARTY
MAY HAVE TO A JURY TRIAL IN EVERY JURISDICTION IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST ANY OTHER PARTY
HERETO OR THEIR RESPECTIVE AFFILIATES, SUCCESSORS OR ASSIGNS IN RESPECT OF ANY
MATTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER DOCUMENT
EXECUTED AND DELIVERED BY ANY PARTY IN CONNECTION THEREWITH (INCLUDING, WITHOUT
LIMITATION, ANY ACTION TO RESCIND OR CANCEL THIS AGREEMENT, AND ANY CLAIMS OR
DEFENSES ASSERTING THAT THIS AGREEMENT WAS FRAUDULENTLY INDUCED OR OTHERWISE
VOID OR VOIDABLE).
10.9 NO THIRD PARTY BENEFICIARIES. Nothing express or implied in this
Agreement is intended to confer, nor shall anything herein confer, upon any
person (including any Member of the Company) other than the Parties and the
respective successors or assigns of the Parties, any rights, remedies,
obligations or liabilities whatsoever.
10.10 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.
10.11 RECOVERY OF COSTS AND EXPENSES. If any Party to this Agreement
brings an action against any other Party to enforce its rights under this
Agreement, the prevailing Party shall be entitled to recover all reasonable
costs and expenses, including attorneys' fees and costs incurred in connection
with such action, including any appeal of such action.
10.12 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
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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.
10.13 INCONSISTENT AGREEMENTS. No Party shall agree to any contractual
provision or term in any agreement with any third party which contains a
provision or term which would cause such Party to be in breach of this
Agreement.
10.14 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.
The Parties to this Agreement by their duly authorized representatives have
executed this Agreement as of the date first above written.
Yahoo! Inc., a Visa International Service Association, a
California corporation Delaware corporation
By: /s/ Timothy Koogle By: /s/Bennet R. Katz
--------------------------- --------------------------------------
Title: President and CEO Title: /s/ Group Executive Vice President
----------------------- and General Counsel
----------------------------------
Yahoo! MarketPlace, L.L.C., a
Delaware limited liability company
By: /s/ Scott Randall
---------------------------
Title: President
-----------------------