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EXHIBIT 10.5
CONFIDENTIAL
EXECUTION COPY
WATCH MERCHANT PROGRAM
ADVERTISING AND PROMOTION AGREEMENT
This Advertising and Promotion Agreement (this "Agreement") is entered into as
of February 26, 1999 (the "Effective Date") between YAHOO! INC., a California
corporation with offices at 0000 Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxx, XX 00000
("Yahoo") and NEWWATCH COMPANY, a Texas corporation with offices at 0000 Xxxx
Xxxxxxx - Xxxxx 000, Xxxxxxx, Xxxxx 00000 ("Newwatch").
In consideration of the mutual promises contained in this Agreement, Yahoo and
Newwatch hereby agree as follows:
SECTION 1: DEFINITIONS.
The following terms are used in this Agreement with the respective meanings set
forth below:
1.1 "Category Pages" shall mean those Pages identified as such on
Exhibit A.
1.2 "Click-through" shall mean a user's "pressing" or "clicking" on any
Newwatch Link as measured by Yahoo's advertiser reporting system.
1.3 "Launch Date" shall mean the date on which Yahoo first activates a
Newwatch Link.
1.4 "Newwatch Banner" shall mean an advertising promotion substantially
similar in form as that set forth on Exhibit B and which meets the
following criteria: (a) promotes the on-line sale of Watch Products,
(b) has dimensions no larger than 468 pixels wide by 60 pixels high,
(c) is in .GIF, .GIF89A or .JPEG format, (d) does not have "looped"
animation, (e) does not have any animation longer than six (6)
seconds, (f) has a file size no greater than 12K, and (f) will permit
users to navigate directly to a page relating to Watch Products on
the Newwatch Site. Yahoo may modify these specifications at its
discretion.
1.5 "Newwatch Button" shall mean a link substantially similar in form as
that set forth on Exhibit B that: (a) contains a Newwatch logo and
has dimensions no larger than 88 pixels wide by 31 pixels high, (b)
does not contain animation, (c) has a file size no greater than 2K,
(d) will permit users to navigate directly to a Page on the Newwatch
Site relating to the online sale of Watch Products, (e) contain
alternative text of no more than ten (10) characters when placed on
a Yahoo Directory Page or sixteen (16) characters when placed on a
Yahoo Keyword Page and (f) contain three text links if the Newwatch
Button is on Yahoo Directory Pages or one text link if the Newwatch
Button is on a Yahoo Keyword Pages of no more than 16 characters.
Yahoo may modify these specifications at its discretion.
1.6 "Newwatch Front Page Promotion" shall mean a promotion substantially
similar in form as that set forth on Exhibit B that: (a) has
dimensions no larger than 230 pixels wide by 33 pixels high and
promotes Watch Products, (b) has no animation longer than six
seconds, (c) does not have "looped" animation, and (d) has a file
size no greater than 3K.
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In addition, the Newwatch Front Page Promotion shall comply with
Yahoo's current front-page promotion guidelines attached as Exhibit
D, which may be modified by Yahoo at its discretion.
1.7 "Newwatch Link" shall mean any link placed by Yahoo under this
Agreement, including, without limitation, the Newwatch Banner,
Newwatch Shopping Banner, Newwatch Button, Newwatch Mail Button,
Newwatch Shopping Module and Newwatch Front Page Promotion.
1.8 "Newwatch Mail Button" shall mean a link substantially similar in
form as that set forth on Exhibit B that: (a) On the "welcome pages":
(i) contains a Newwatch logo with dimensions no Larger than 88 pixels
wide by 31 pixels high and has no animation, (ii) promotes Watch
Products, (iii) has a text message of not more than 50 characters (2
lines of not more than 25 characters each) below the button; (b) In
the email sent to users: (i) all pages will be emailed by Yahoo, (ii)
the same message will be sent to all users, (iii) the email may
contain text and graphics not to exceed 30K total; and (c) on the
"log out" pages: (i) contains a Newwatch logo with dimensions no
larger than 88 pixels wide by 31 pixels high and has no animation;
(ii) includes an HTML drop-down box with up to 10 items, 25
characters maximum per line; (iii) includes a text message of not
more than 25 characters describing the drop-down box content. Yahoo
may modify these specifications at its discretion.
1.9 "Newwatch Site" shall mean the web site owned by Newwatch currently
located at xxxx://xxx.xxxxxxxx.xxx.
1.10 "Newwatch Shopping Module" shall mean a promotion substantially
similar in form as that set forth on Exhibit B that: (a) has
dimensions no larger than 150 pixels wide by 275 pixels high, (b)
visually promotes a Watch Product for sale in Newwatch's Yahoo Store
that is not a special offer or promotion, (c) contains text with the
name of the product (and nothing else) that does not exceed fifty
(50) characters, (d) does not contain animation, (e) is in JPEG or
GIF format, (e) has a file size no greater than 20K, (f) contains an
optional Newwatch logo which shall be no greater than ten percent
(10%) of the image space in the Module, (g) will permit users to
navigate directly to a Page in the Newwatch Store relating to the
Watch Product promoted in the module and (h) specifies the price of
the product being sold. Yahoo may modify these specifications at its
discretion.
1.11 "Newwatch Store" shall mean an online store created with Yahoo Store
technology and located in the Yahoo Store.
1.12 "Page" means any World Wide Web page (or, for online media other than
Web sites, the equivalent unit of the relevant protocol).
1.13 "Page View" shall mean a user's request for a Page as measured by
Yahoo's advertiser reporting system.
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1.14 "Page View Obligations" shall be Yahoo's obligations to put Newwatch
links on its pages as set forth in Sections 5.1 and 5.2 of this
Agreement.
1.15 "Run of Network" shall mean banners rotating throughout the Yahoo
Properties.
1.16 "Search Results Pages" shall mean those Pages identified as such on
Exhibit A.
1.17 "Watch Merchant" shall mean any company or other entity engaged in
the online sale of Watch Products.
1.18 "Watch Merchant Program" shall mean Yahoo's program consisting of
certain marketing, advertising and promotional activities with Watch
Merchants.
1.19 "Watch Products" shall mean timepieces meant to be worn or carried,
as well as associated accessories such as replacement batteries or
watchbands.
1.20 "Term" shall mean the period beginning on the Launch Date and
continuing for a period of twelve (12) months.
1.21 "Yahoo Mail Pages" shall mean those Pages identified as such on
Exhibit A.
1.22 "Yahoo Main Site" shall mean Yahoo's principal U.S. based directory to
the World Wide Web currently located at xxxx://xxx.xxxxx.xxx.
1.23 "Yahoo Properties" shall mean any Yahoo branded or co-branded media
properties, including, without limitation, Internet guides, that are
developed in whole or in part by Yahoo or its affiliates.
1.24 "Yahoo Shopping Pages" shall mean those Pages identified as such on
Exhibit A.
1.25 "Yahoo Store" shall mean that Yahoo branded property containing
various online stores and currently located at xxxx://xxxxx.xxxxx.xxx.
SECTION 2: LINKS TO NEWWATCH.
2.1 Newwatch Banner. Yahoo shall provide the Newwatch Banner on the
Category Pages designated on Exhibit A and on pages associated with
the keywords specified on Exhibit A on a rotating basis until its
Page View Obligations are met.
2.2 Newwatch Button. Yahoo shall provide the Newwatch Button on the
Category Pages and Search Results Pages designated in Exhibit A,
during the Term. Each Newwatch Button and associated text links shall
promote Watch Products and permit users to navigate directly to a
Page on the Newwatch Site relating to the Watch Products relevant to
the Category Page or Search Results Page on which such Button and
text link appears.
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2.3 Newwatch Mail Button. Yahoo shall provide the Newwatch Mail Button
on the Yahoo Mail Pages on a rotating basis until its Page View
Obligations are met.
2.4 Newwatch Shopping Module. Yahoo shall provide the Newwatch Shopping
Module in the Apparel/Accessories area within Yahoo Shopping on a
rotating basis until its Page View Obligations are met.
2.5 Newwatch Front Page Promotion. Yahoo shall provide the Newwatch Front
Page Promotion on a rotating basis until its Page View obligations
are met, on the home page of the Yahoo Main Site, currently located
at xxxx://xxx.xxxxx.xxx in connection with the following four
"multi-sponsored" promotions: (i) Mother's Day 1999, (ii) Father's
Day 1999, (iii) Holiday Extravaganza 1999 and (iv) Valentine's Day
2000.
2.6 Newwatch Store. Newwatch agrees to open an online store at Yahoo
Store and to abide by the specifications, terms and conditions of the
Yahoo Store program as further detailed at xxxx://xxxxx.xxxxx.xxx.
2.7 Limited Exclusivity. Yahoo shall not include merchant buttons
promoting or pointing directly to pages selling Watch Products on the
Yahoo pages containing a Newwatch Button. This restriction applies to
buttons only and Yahoo is in no way restricted from (a) displaying
any non-button advertising on the pages containing a Newwatch Button
or (b) providing links to other merchants as a part of Yahoo's search
or editorial directory on a Yahoo page containing a Newwatch Button.
3 IMPLEMENTATION.
3.1 Subject to the provisions of this Agreement, Yahoo will be solely
responsible for the user interface and placement of the Newwatch Links
and Newwatch shall be solely responsible for and shall provide
Yahoo with all artwork and design elements of the Newwatch Links.
3.2 Newwatch shall promptly provide Yahoo all URLs, URL formats (as appli-
cable), content, and other materials necessary for Yahoo to provide
the Newwatch Links. All content and material contained in the
Newwatch Links are subject to Yahoo's approval and must comply with
all applicable federal, state and local laws, rules and regulations,
including, without limitation, consumer protection laws and rules and
regulations governing product claims, truth in labeling, and false
advertising.
3.3 Newwatch hereby grants to Yahoo a non-exclusive, worldwide, fully
paid license to use, reproduce and display Newwatch's trade names,
trademarks, service names, other proprietary marks and any other
intellectual property provided by Newwatch to Yahoo, as is reasonably
necessary to perform its obligations under this Agreement.
3.4 In no event shall any Page on the Newwatch Site to which users
Click-through from any Newwatch Link, contain graphic or textual
hyperlinks, banner advertisements or promotions of any navigational
guides or other online services similar to Yahoo including, but not
limited to: Amazon, America Online, CNET/Snap, Disney, eBay,
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Excite, Infoseek/Go Network, Lycos, Microsoft, Netscape, and their
successors.
3.5 Newwatch shall place a Yahoo graphic or text link on all Pages of the
Newwatch Site to which users Click-through from any Newwatch Link.
Such Yahoo graphic or text link shall (a) be placed in a manner
approved by Yahoo, (b) contain the Yahoo name and/or logo as provided
by Yahoo and (c) directly link the user back to a Page on the Yahoo
Properties designated by Yahoo.
3.6 The Newwatch Site shall comply with the scale, speed and performance
requirements mutually agreed upon by the parties but in no event
shall be less than that provided by the Yahoo Main Site.
4 RIGHT OF FIRST PRESENTATION.
4.1 Within thirty (30) days prior to the expiration of the Term, Yahoo
will provide written notice to Newwatch in the event that Yahoo, at
its sole discretion, elects to extend this Watch Merchant Program.
Yahoo shall describe Yahoo's reasonable business requirements for the
extension in its written notice to Newwatch. The parties will use
good-faith efforts to negotiate and execute a written extension to
this Agreement under reasonable terms and conditions. If Newwatch
declines to commence good faith negotiations with Yahoo within ten
(10) days after receiving such written notice from Yahoo, or if the
parties fail to reach agreement within ten (10) days following the
commencement of good faith negotiations (or such later date as is
agreed by the parties), Yahoo may offer the opportunity to any third
party.
4.2 Yahoo will provide written notice to Newwatch in the event that
Yahoo, at its sole discretion, elects to create a new promotional
opportunity similar and scope and nature to the program contemplated
by this Agreement, primarily related to Watch Products on a site
solely owned, created and branded by Yahoo and targeted to the U.S.
audience. Yahoo shall describe Yahoo's reasonable business
requirements for the new promotional opportunity in its written notice
to Newwatch. If Newwatch declines to commence good faith negotiations
with Yahoo within ten (10) days after receiving such written notice
from Yahoo, or if the parties fail to reach agreement within ten (10)
days following the commencement of good faith negotiations (or such
later date as is agreed by the parties), Yahoo may offer the
opportunity to any third party. Advertising and promotional
opportunities that are in the normal course of Yahoo's business
including, but not limited to, banner ads on category pages and
keyword search results pages, shall not be considered new promotional
opportunities for the purposes of this Section 4.2.
5 PAGE VIEWS.
5.1 With respect to the Newwatch Links, Yahoo shall deliver a minimum of
* Page Views.
5.2 Yahoo will use reasonable commercial efforts to deliver such Page
Views as follows: * Page Views of the Newwatch Button; * Page Views of
the Newwatch Banner; * Page
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* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
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Views of the Newwatch Front Page Promotion; and * Page Views of the
Newwatch Shopping Module. Notwithstanding the foregoing, Yahoo's Page
View obligations are with respect to the program as a whole as set
forth in Section 5.1 above and Yahoo shall not be in breach of this
Agreement for failure to deliver the number of Page Views in any of
the areas set forth in this Section 5.2.
5.3 In the event that Yahoo fails to deliver the number of Page Views
referred to in Section 5.1 above by the expiration of the Term, Yahoo
will "make good" the shortfall by extending its obligations under
Section 2 in the areas of the Yahoo Main Site set forth therein (or
similar inventory) beyond the end of the Term until the Yahoo Page
View Obligations are satisfied. The provisions set forth in this
Section 5.3 set forth the entire liability of Yahoo, and Newwatch's
sole remedy, for Yahoo's breach of its Page View obligations set
forth in this Section 5.
5.4 Yahoo shall provide Newwatch access to an electronic database that
describes Yahoo's calculation of the Page Views. The database will be
updated according to Yahoo's standard procedure for providing such
updates.
6 COMPENSATION
6.1 Slotting Fee. In consideration of Yahoo's performance and
obligations as set forth herein, Newwatch will pay Yahoo a
non-refundable slotting fee equal to one million two hundred seventy
four thousand dollars ($1,274,000). Such fee shall be payable as
follows: (i) five hundred fifty thousand dollars ($550,000) upon
execution of this Agreement, three hundred thousand dollars ($300,000)
of such payment designated as a set up fee for design, consultation,
development, implementation and placement of the Newwatch Links; (ii)
two hundred fifty thousand dollars ($250,000) payable on each of May
15, 1999 and August 15, 1999 (iii) two hundred fifty thousand dollars
($250,000) on or before November 15, 1999.
6.2 Payment Information. All payments herein are non-refundable and
non-creditable and shall be made by Newwatch via wire transfer into
Yahoo's main account pursuant to the wire transfer instructions set
forth on Exhibit C.
6.3 Late Payments. Any portion of the above payments which has not been
paid to Yahoo within ten (10) days of the dates set forth above shall
bear interest at the lesser of (i) one percent (1%) per month or (ii)
the maximum amount allowed by law. Notwithstanding the foregoing, any
failure by Newwatch to make the payments specified in Sections 6.1 and
6.2 on the dates set forth therein shall constitute a material breach
of this Agreement.
6.4 Creditworthiness. On or before the date of this Agreement, Newwatch
shall provide Yahoo with sufficient information and assurances to
demonstrate to Yahoo's satisfaction that Newwatch has the ability to
make the payments described in Section 6.1. It is expressly understood
that Newwatch's failure to provide such information and assurances
shall be a material breach of this Agreement and, in addition to any
other
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* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
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rights that it may possess, afford Yahoo the right to immediately
suspend its performance under this Agreement.
7 TERMINATION.
7.1 Term. Unless terminated as provided herein, this Agreement shall
remain in effect for the Term.
7.2 Termination by Either Party with Cause. This Agreement may be
terminated at any time by either party: (i) immediately upon written
notice if the other party: (a) becomes insolvent; (b) files a
petition in bankruptcy; or (c) makes an assignment for the benefit of
its creditors; or (ii) thirty (30) days after written notice to the
other party of such other party's breach of any of its obligations
under this Agreement in any material respect (ten (10) days in the
case of a failure to pay), which breach is not remedied within such
notice period. In the event that Yahoo provides a notice of
termination under clause (ii) above, Yahoo shall have the right to
suspend performance under Section 2 of this Agreement for the notice
period unless and until the breach is fully remedied by Newwatch
prior to the expiration of the notice period.
7.3 Termination by Yahoo. Yahoo may terminate this Agreement upon
forty-five (45) days written notice to Newwatch if at any time during
the Term Yahoo reasonably determines that (i) the Newwatch Site is
not fully operational with support for conducting on-line sales of
Watch Products, or (ii) the Newwatch Site is no longer one of the top
ten (10) sites for the on-line sale of Watch Products (as determined,
to the extent practical, over a reasonable period of time, by an
independent, qualified and industry-recognized third party based on
the quantity and quality of customers and product offerings).
7.4 Survival. The provisions of Sections 7, 8, 9, 10, 11 and 12 shall
survive expiration or termination of this Agreement.
8 CONFIDENTIAL INFORMATION AND PUBLICITY.
8.1 Terms and Conditions. The terms and conditions of this Agreement
shall be considered confidential and shall not be disclosed to any
third parties except to such party's accountants, attorneys, or except
as otherwise required by law. Neither party shall make any public
announcement regarding the existence of this Agreement without the
other party's prior written approval and consent.
8.2 Publicity. Any and all publicity relating to this Agreement and
subsequent transactions between Yahoo and Newwatch and the method of
its release shall be approved in advance of the release by both Yahoo
and Newwatch.
8.3 Nondisclosure Agreement. Yahoo and Newwatch acknowledge and agree to
the terms of the Mutual Nondisclosure Agreement attached hereto as
Exhibit E with respect to the use and disclosure of confidential
information and all discussions pertaining to or leading to this
Agreement.
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8.4 User Data. All information and data provided to Yahoo by users of the
Yahoo Properties or otherwise collected by Yahoo relating to user
activity on the Yahoo Properties shall be retained by and owned
solely by Yahoo. All information and data provided to Newwatch on the
Newwatch Site or otherwise collected by Newwatch relating to user
activity on the Newwatch Site shall be retained by and owned solely by
Newwatch. Each party agrees to use such information only as
authorized by the user and shall not disclose; sell, license or
otherwise transfer any such user information to any third party or use
the user information for the transmission of "junk mail," spam," or
any other unsolicited mass distribution of information.
8.5 Privacy of User Information. Newwatch shall ensure that all
information provided by users of the Newwatch Site is maintained,
accessed and transmitted in a secure environment and in compliance
with security specifications to be mutually agreed upon by the
parties. Newwatch shall provide a link to its policy regarding the
protection of user data on those pages of the Newwatch Site where the
user is requested to provide personal or financial information.
9 INDEMNIFICATION,
9.1 Newwatch, at its own expense, will indemnify, defend and hold
harmless Yahoo and its employees, representatives, agents and
affiliates, against any claim, suit, action, or other proceeding
brought against Yahoo based on or arising from a claim that any
Newwatch trademark, service xxxx or other Newwatch brand feature, any
material, product or service produced, distributed, offered or
provided by Newwatch, or any material presented on the Newwatch Site,
infringes in any manner any copyright, patent, trademark, trade secret
or any other intellectual property right of any third party, is or
contains any material or information that is obscene, defamatory,
libelous, slanderous, or that violates any law or regulation, or
that otherwise violates any rights of any person or entity,
including, without limitation, rights of publicity, privacy or
personality, or has otherwise resulted in any consumer fraud, product
liability, tort, breach of contract, injury, damage or harm of any
kind to any third party; provided, however, that in any such case:
(a) Yahoo provides Newwatch with prompt notice of any such claim; (b)
Yahoo permits Newwatch to assume and control the defense of such
action upon Newwatch's written notice to Yahoo of its intention to
indemnify; and (c) upon Newwatch's written request, and at no expense
to Yahoo, Yahoo will provide to Newwatch all available information
and assistance necessary for Newwatch to defend such claim. Newwatch
will not enter into any settlement or compromise of any such claim,
which settlement or compromise would result in any liability to
Yahoo, without Yahoo's prior written consent, which shall not
unreasonably be withheld. Newwatch will pay any and all costs,
damages, and expenses, including, but not limited to, reasonable
attorneys' fees and costs awarded against or otherwise incurred by
Yahoo in connection with or arising from any such claim, suit, action
or proceeding.
10 LIMITATION OF LIABILITY.
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10.1 EXCEPT AS PROVIDED IN SECTION 9, UNDER NO CIRCUMSTANCES SHALL
NEWWATCH, YAHOO, OR ANY OF THEIR RESPECTIVE AFFILIATES BE LIABLE TO
THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES ARISING FROM THIS AGREEMENT, EVEN IF THAT PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, SUCH AS, BUT NOT
LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.
11 INSURANCE.
11.1 Newwatch agrees that it will maintain insurance with a carrier that
is reasonably acceptable by Yahoo and with coverage for commercial
general liability and errors and omissions of at least one million
dollars per occurrence. Newwatch will name Yahoo as an additional
insured on such insurance and will provide evidence of such insurance
to Yahoo within ten (10) days of the Effective Date. Such insurance
policy shall not be cancelled or modified without Yahoo's prior
written consent.
12 GENERAL PROVISIONS.
12.1 Independent Contractors. It is the intention of Yahoo and Newwatch
that Yahoo and Newwatch are, and shall be deemed to be, independent
contractors with respect to the subject matter of this Agreement, and
nothing contained in this Agreement shall be deemed or construed in
any manner whatsoever as creating any partnership, joint venture,
employment, agency, fiduciary or other similar relationship between
Yahoo and Newwatch.
12.2 Entire Agreement. This Agreement, together with all Exhibits hereto,
represents the entire agreement between Yahoo and Newwatch with
respect to the subject matter hereof and thereof and shall
supersede all prior agreements and communications of the parties,
oral or written, including without limitation the Letter of Intent
executed on February 3, 1999 between Yahoo and Newwatch.
12.3 Amendment and Waiver. No amendment to, or waiver of, any provision of
this Agreement shall be effective unless in writing and signed by
both parties. The waiver by any party of any breach or default shall
not constitute a waiver of any different or subsequent breach or
default.
12.4 Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of California without regard to
the conflicts of laws principles thereof.
12.5 Successors and Assigns. Neither party shall assign its rights or
obligations under this Agreement without the prior written consent
of the other party, which consent shall not unreasonably be withheld
or delayed. Notwithstanding the foregoing, either party may assign
this Agreement to an entity who acquires substantially all of the
stock
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or assets of a party to this Agreement; provided that consent will be
required in the event that the non-assigning party reasonably
determines that the assignee will not have sufficient capital or
assets to perform its obligations hereunder, or that the assignee is
a direct competitor of the non-assigning party. All terms and
provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective permitted
transferees, successors and assigns.
12.6 Force Majeure. Neither party shall be liable for failure to perform
or delay in performing any obligation (other than the payment of
money) under this Agreement if such failure or delay is due to fire,
flood, earthquake, strike, war (declared or undeclared), embargo,
blockade, legal prohibition, governmental action, riot, insurrection,
damage, destruction or any other similar cause beyond the control of
such party.
12.7 Notices. All notices, requests and other communications called for by
this agreement shall be deemed to have been given immediately if made
by facsimile or Electronic mail (confirmed by concurrent written
notice sent via overnight courier for delivery by the next business
day), if to Yahoo at 0000 Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxx, XX 00000,
Fax: (000) 000-0000 Attention: Vice President, Business Development
(e-mail: xxxxx@xxxxx-xxx.xxx), with a copy to its General Counsel
(e-mail: xxxxxx@xxxxx-xxx.xxx), and if to Newwatch at the physical
and Electronic mail addresses set forth on the signature page of this
Agreement, or to such other addresses as either party shall specify
to the other. Notice by any other means shall be deemed made when
actually received by the party to which notice is provided.
12.8 Severability. If any provision of this Agreement is held to be
invalid, illegal or unenforceable for any reason, such invalidity,
illegality or unenforceability shall not effect any other provisions
of this Agreement, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained
herein.
12.9 Sole Responsibility. Newwatch will remain solely responsible for the
operation of the Newwatch Site, and Yahoo will remain solely
responsible for the operation of the Yahoo Main Site. Each party: (a)
acknowledges that the Newwatch Site and the Yahoo Main Site may be
subject to temporary shutdowns due to causes beyond the operating
party's reasonable control; and (b) subject to the terms of this
Agreement retains sole right and control over the programming,
content and conduct of transactions over its respective
Internet-based service.
12.10 Counterparts. This Agreement may be executed in two counterparts,
both of which taken together shall constitute a single instrument.
Execution and delivery of this Agreement may be evidenced by
facsimile transmission.
12.11 Authority. Each of Yahoo and Newwatch represents and warrants that
the negotiation and entry of this Agreement will not violate,
conflict with, interfere with, result in a breach of, or constitute a
default under any other agreement to which they are a party.
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12.12 Attorneys Fees. The prevailing party in any action to enforce this
Agreement shall be entitled to reimbursement of its expenses,
including reasonable attorneys' fees.
[Signature page follows]
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This Advertising and Promotion Agreement has been executed by the duly
authorized representatives of the parties, effective as of the Effective Date.
YAHOO! INC. NEW WATCH, INC.
By: /s/ XXXXX XXXXXXXX By: /s/ XXXXX XXXXXXXX
-------------------------------- ---------------------------
Name: Xxxxx Xxxxxxxx Name: Xxxxx Xxxxxxxx
Title: Vice President, Business Development ---------------------------
Attn: VP, Business Development
3420 Central Expressway Title:
Xxxxx Xxxxx, XX 00000 ------------------------
Tel.: (000) 000-0000 Attn:
Fax: (000) 000-0000 -------------------------
e-mail: xxxxx@xxxxx-xxx.xxx
Tel:
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Fax:
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EXHIBIT A
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*
[Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.]
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EXHIBIT B
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[INSERT SCREEN SHOTS OF NEWWATCH LINKS]
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EXHIBIT C
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Wire Transfer Instructions
Yahoo's Bank Information:
Institution Name: Imperial Bank
Institution Address: Inglewood, CA
ABA: 122 201 444
Beneficiary Name: Yahoo! Inc.
Beneficiary Account Number: 0000-000-000
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EXHIBIT D
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(attach front page promotion guidelines)
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EXHIBIT E
MUTUAL NON-DISCLOSURE AGREEMENT
This Agreement governs the disclosure of information by and between
Yahoo! Inc., a California corporation, and Newwatch Company, a [Texas]
corporation with offices at 0000 Xxxx Xxxxxxx - Xxxxx 000, Xxxxxxx, Xxxxx 00000
("Participant").
1. The "Confidential Information" is that confidential, proprietary, and trade
secret information being disclosed by the disclosing party described as
(please be specific):
Yahoo Confidential Information (owned by Yahoo and any of its
affiliates):
page view projections, product plans, business plans, __________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Participant Confidential Information:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
2. Except as set forth in this Section 2, all Confidential Information shall be
in tangible form and shall be marked as Confidential or proprietary
information of the disclosing party. If the Confidential Information is
disclosed orally or visually, it shall be identified as such at the time of
disclosure and confirmed in a writing to the recipient within thirty (30)
days of such disclosure.
3. Each of the parties agrees that it will not make use of, disseminate, or in
any way disclose any Confidential Information of the other party to any
person, firm or business, except to the extent necessary for negotiations,
discussions, and consultations with personnel or authorized representatives
of the other party and any purpose the other party may hereafter authorize
in writing. Each of the parties agrees that it shall disclose Confidential
Information of the other party only to those of its employees who need to
know such information and who have previously agreed, either as a condition
to employment or in order to obtain the Confidential Information, to be
bound by terms and conditions substantially similar to those of this
Agreement.
4. There shall be no liability for disclosure or use of Confidential
Information which is (a) in the public domain through no fault of the
receiving party (b) rightfully received from a third party without any
obligation of confidentiality, (c) rightfully known to the receiving party
without any limitation on use or disclosure prior to its receipt from the
disclosing party, (d) independently developed by the receiving party (e)
generally made available to third parties without any restriction on
disclosure, or (f) communicated in response to a valid order by a
18
court or other governmental body, as otherwise required by law, or as
necessary to establish the rights of either party under this Agreement
(provided that the party so disclosing has provided the other party with a
reasonable opportunity to seek protective legal treatment for such
Confidential Information).
5. "Residual Information" shall mean any Confidential Information of the
disclosing party which may be retained in intangible form in the minds of
those individuals of the receiving party who have had proper access to such
Confidential Information. Notwithstanding anything else in this Agreement,
the receiving party shall be free to use any Residual Information for any
purpose whatsoever, including, without limitation, the development of its
own products, or business, provided that such party shall not be entitled to
disclose Residual Information to any third parties unless such disclosure is
in the course of, or as part of, any disclosure of its own products or
business or their development.
6. Each of the parties agrees that it shall treat all Confidential Information
of the other party with the same degree of care as it accords to its own
Confidential Information, and each of the parties represents that it
exercises reasonable care to protect its own Confidential Information.
7. Each of the parties agrees that it will not modify, reverse engineer,
decompile, create other works from, or disassemble any software programs
contained in the Confidential Information of the other party unless
otherwise specified in writing by the disclosing party.
8. All materials (including, without limitation, documents, drawings, models,
apparatus, sketches, designs and lists) furnished to one party by the other,
and which are designated in writing to be the property of such party, shall
remain the property of such party and shall be returned to it promptly at
its request, together with any copies thereof.
9. This Agreement shall govern all communications between the parties that are
made during the period from the effective date of the Agreement to the date
on which either party receives from the other written notice that subsequent
communications shall not be so governed, provided, however, that each
party's obligations under Sections 2 and 3 with respect to Confidential
Information of the other party which it previously received shall continue
unless and until such Confidential Information falls within Sections 4 or 5.
Neither party shall communicate any information to the other in violation of
the proprietary rights of any third party. Neither party acquires any
licenses under any intellectual property rights of the other party under
this Agreement.
