ADVERTISING AND PROMOTION AGREEMENT
This Advertising and Promotion Agreement (this "AGREEMENT") is entered
into as of April 6, 2000 (the "EFFECTIVE DATE") between Yahoo! Inc., a Delaware
corporation with offices at 0000 Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxx, XX 00000
("YAHOO") and xXxxxx.xxx, Inc., a Delaware corporation with offices at 0000
Xxxxxxx Xx., Xxxxxxx Xxxx, Xxxxxxxxxx 00000 ("iPrint").
In consideration of the mutual promises contained in this Agreement,
Yahoo and iPrint hereby agree as follows:
1. DEFINITIONS.
"AFFILIATE" shall mean any company or any other entity world-wide in
which Yahoo owns at least a /***/ percent ownership, equity, or financial
interest, including, without limitation, corporations, partnerships, joint
ventures, and limited liability companies.
"FTC ORDER" shall mean that certain "Decision and Consent Order" issued
by the U.S. Federal Trade Commission on February 5, 1999 against GeoCities,
Inc., a California corporation acquired by Yahoo, attached hereto as EXHIBIT A
and any and all subsequent or related official materials, regulations, laws
judgements or orders.
"INTELLECTUAL PROPERTY RIGHTS" shall mean all rights in and to trade
secrets, patents, copyrights, trademarks, know-how, as well as moral rights and
similar rights of any type under the laws of any governmental authority,
domestic or foreign.
"INTERNET" shall mean the collection of computer networks commonly
known as the Internet, and shall include, without limitation, the World Wide
Web.
"iPRINT BRAND FEATURES" means trademarks, service marks, logos, links
and other distinctive brand features of iPrint.
"iPRINT BRAND REFERENCE" shall mean an advertising promotion that: (a)
contains an iPrint logo, (b) has dimensions no larger than /***/ pixels wide by
/***/ pixels high, (c) does not have any animation, (d) has a file size no
greater than /***/k, and (e) permits the User to navigate directly to the iPrint
Yahoo Site. The iPrint Brand Reference shall be substantially similar to EXHIBIT
B.
"iPRINT COMPETITORS" shall mean those third party online retailers of
printing, copying, embroidery and engraving services listed on EXHIBIT C;
provided that, any such entity shall not be considered to be an iPrint
Competitor with respect to the promotion of products other than online printing,
copying, embroidery and engraving services (e.g., Staples shall not be
considered an iPrint Competitor in connection with its promotion or sale of
retail office supplies). iPrint may amend the list of iPrint Competitors on
Exhibit C /***/ with the written consent of Yahoo, not to be unreasonably
withheld; provided that, Yahoo may honor any agreements with newly designated
iPrint Competitors entered into prior to such designation.
"iPRINT CONTENT" means any articles or other information related to
printing services and issues provided by iPrint to Yahoo.
/***/ Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
"iPRINT BUSINESS CARD DESIGN STUDIO PAGES" shall mean those Pages
within the iPrint Yahoo Site (a) dedicated to the design and purchase of the
free business cards, (b) allows for the User's email address, as transmitted by
Yahoo to the iPrint Yahoo Site, to appear in the free business card, and (c)
permit the design and ordering process of the free business cards by the User to
be completed in no more than a total of /***/ separate Pages (excluding changes
to business card layout or design, and the design and purchase of additional
iPrint products or services by the User).
"iPRINT EMAIL" means an e-mail message with an offer to Yahoo Delivers
Members that: (a) is in HTML format (or text format if sent to email addresses
outside of the Yahoo Mail service), (b) has a file size no greater than /***/K,
(c) has a width not to exceed /***/ pixels, (d) does not have "looped"
animation, (e) does not have any animation longer than /***/, (f) does not
contain Java, JavaScript, frames, ActiveX, dynamic HTML, (g) is free from errors
and passes the "weblint validation checker" (or similar tool utilized by Yahoo),
(h) has a subject line of less than /***/ characters (including spaces), (i)
addresses Users as Yahoo! Delivers Members (e.g. An exclusive offer for Yahoo!
Delivers Members.), and (j) contains mutually agreeable text in the subject
line, which will include the words "Yahoo! Delivers" and "xXxxxx.xxx"
"iPRINT FREE BUSINESS CARD MODULE" shall mean a module that (a) has
overall dimensions no larger than /***/ pixels wide by /***/ pixels high and no
smaller than /***/ pixels wide by /***/ pixels high, (b) does not contain
animation, (c) has a total file size no larger than /***/k, (d) has a subject
line stating "Free Business Cards!" or such other text as may be agreed to by
the parties, (e) contains an iPrint logo which is preceded by the text "powered
by" or such other text as is agreed upon by the parties, (f) contains text and
HTML graphics related to the free business card opportunity, (g) contains a HTML
representation of a sample business card which depicts the User's name and email
address in a legible fashion, and (h) includes a URL to display the Jump Page in
a new browser window with dimensions no larger than /***/ pixels wide by /***/
pixels high. The iPrint Free Business Card Module shall be substantially similar
to the example set forth in EXHIBIT D. Yahoo shall create and host the iPrint
Free Business Card Module and the technology to transmit the User's email
address to iPrint.
"iPRINT FREE BUSINESS CARD PROMOTION" shall mean a promotional set of
free business cards offered to Yahoo Users. These business cards will be printed
on economy paper with black ink only and no graphics, and will contain the
User's email address as transmitted by Yahoo. Yahoo Users must agree to pay for
shipping and may be required to complete a short iPrint survey, substantially
similar to the survey other iPrint promotional customers are required to
complete. The business cards will be designed online and shipped directly to the
user. This offer will be valid for the Term of this Agreement. The iPrint Free
Business Card Promotion shall be offered to first time customers of iPrint only
and are limited to one set of business cards per person, residence, address,
phone number or business/organization. iPrint will set up and host the Web site
that allows customers to design and order the free promotional product.
"iPRINT LINK" shall mean any Link to the iPrint Yahoo Site placed by
Yahoo under this Agreement, including, without limitation, the iPrint Brand
Reference, the iPrint Free Business Card Module, the Jump Page, the iPrint
Printing Center Links, or the iPrint Content.
/***/ Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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"iPRINT PRINTING CENTER LINKS" shall mean a text link that (a)
identifies a product or service being sold or promoted online on the iPrint
Yahoo Site and which is set forth in EXHIBIT M or as otherwise may be agreed
between the parties, and (b) as set forth in EXHIBIT M, permits the User to
navigate to a Page on the iPrint Yahoo Site where such product or service is
being promoted and offered for sale. Each text link may, in Yahoo's sole
discretion, be followed by text describing the products or services. The iPrint
Printing Center Links shall be substantially similar to the example set forth in
EXHIBIT E.
"iPRINT SERVICES" shall mean the services and products offered by
iPrint on the iPrint Yahoo Site, which are accessed by Users from any of the
iPrint Links. iPrint reserves the right, in its sole discretion, to add,
withdraw or substitute products offered on the iPrint Yahoo Site.
"iPRINT SITE" shall mean iPrint's main Web site dedicated to the online
sale of printing services located at xxxx://xxx.xxxxxx.xxx. iPrint Site shall
not include any site developed by iPrint for any partner or affiliate.
"iPRINT YAHOO SITE" shall mean one or more Web Pages residing on the
World Wide Web, designed and hosted by iPrint for Yahoo Users, in accordance
with iPrint's standard format for co-branded promotional Web sites. iPrint will
update the iPrint Yahoo Site as soon as practicable following any updates to the
iPrint Site relevant to Yahoo Users.
"JUMP PAGE" shall mean a Page maintained on the Yahoo Properties
created by Yahoo, and approved by iPrint (which approval shall not be
unreasonably withheld), that, among other things (i) is the first Page a User
sees when clicking on the iPrint Free Business Card Module, (ii) contains
content describing the iPrint Free Business Card Promotion, (iii) contains
disclaimer language advising the User that the User's email address will be
transmitted to iPrint if the User continues, and (iv) contains a link permitting
the User to navigate to the iPrint Business Card Design Studio Pages.
"LAUNCH DATE" shall mean the launch date of the Yahoo Printing Center
Site, which is currently anticipated to be April 15, 2000.
"LINK" or "LINK" means a visible graphic or textual indication located
within a Page which, when selected by a user's browser, directs the user's
internet browser connection onward to a specified Page on the same or any other
Web site via a URL (whether perceptible or not) and which establishes a direct
connection between the browser and the new Page.
"PAGE VIEW" means a request for a Page as measured by Yahoo's reporting
systems.
"PAGE" means any World Wide Web page (or, for online media other than
Web sites, the equivalent unit of the relevant protocol).
"TERM" means the period beginning on the Effective Date and continuing
for a period of /***/ full calendar months from the Launch Date.
"USER" shall mean a user of the Yahoo Properties.
/***/ Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
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"YAHOO BRAND FEATURES" means trademarks, service marks, logos and other
distinctive brand features of Yahoo that are used in or relate to its business.
"YAHOO COMPETITOR" means a third party listed on EXHIBIT F hereto.
Yahoo will have the right to update the list of Yahoo Competitors on EXHIBIT F
/***/ with the written consent of iPrint, not to be unreasonably withheld;
provided that, iPrint may honor any agreements with newly designated Yahoo
Competitors entered into prior to such designation.
"YAHOO MAIL PROPERTIES" shall mean those Yahoo Properties where Users
have individual email accounts and may send and receive email messages,
currently located at xxxx://xxxx.xxxxx.xxx. The parties expressly acknowledge
that any Yahoo co-branded mail properties and/or Yahoo international properties
are expressly not included within the definition of Yahoo Mail Properties (e.g.
Yahoo email accounts through Xxxxxxxxx.xxx or Yahoo email accounts through
Yahoo's United Kingdom property having email addresses ending with
"@xxxxx.xx.xx").
"YAHOO MAIL REGISTRATION CONFIRMATION PAGE" shall mean that Page on the
Yahoo Mail Properties that is part of the Yahoo Mail registration process and
displayed after an individual User registers for an individual Yahoo Mail
account for the first time. The Yahoo Mail Registration Confirmation Page shall
be substantially similar to the example set forth on EXHIBIT D.
"YAHOO MAIL WELCOME PAGE" shall mean that Page on the Yahoo Mail
Properties that is displayed when a User first accesses his or her Yahoo Mail
account. The Yahoo Mail Welcome Page shall be substantially similar to the
example set forth on EXHIBIT G.
"YAHOO MAIN SITE" shall mean Yahoo's principal U.S. targeted directory
to the World Wide Web currently located at xxxx://xxx.xxxxx.xxx.
"YAHOO PRINTING CENTER CATEGORY PAGES" means those category pages of
the Yahoo Main Site identified on EXHIBIT H.
"YAHOO PRINTING CENTER KEYWORDS" means those keywords set forth on
EXHIBIT I; provided that, Yahoo may substitute any such keyword for a comparable
keyword in its reasonable discretion.
"YAHOO PRINTING CENTER LINK" shall mean an advertising promotion that
(a) promotes the Yahoo Printing Center Site, (b) contains a text reference to
the Yahoo Printing Center Site as determined by Yahoo in its sole discretion,
and (c) permits Users to navigate directly to the Yahoo Printing Center Site. An
example of the Yahoo Printing Center Link is set forth on EXHIBIT J.
"YAHOO PRINTING CENTER PAGES" means (a) Yahoo Printing Center Category
Pages and (b) Yahoo Printing Center Search Results Pages.
"YAHOO PRINTING CENTER SITE" shall mean that Yahoo Property within the
Yahoo Properties dedicated to printing services, which is tentatively scheduled
to be located at xxxx://xxxxxxxxxxxxx.xxxxx.xxx/xxxxxxxxxxxxx/xxxxxxxx.
/***/ Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
4
"YAHOO PROPERTIES" shall mean any Yahoo branded or co-branded media
properties or services, including, without limitation, those Internet guides,
developed in whole or in part by Yahoo or its Affiliates and which are displayed
on or which transfer information to and/or from any electronic device now known
or later developed including, without limitation, personal computers, cellular
phones, personal digital assistants, and pagers. The parties acknowledge that
this does not include the iPrint Yahoo Site.
"YAHOO SMALL BUSINESS PROPERTY" shall mean that Yahoo Property
dedicated to providing information and services to small business, currently
located at xxxx://xxxxxxxxxxxxx.xxxxx.xxx.
"YAHOO PRINTING CENTER SEARCH RESULTS PAGES" means those pages
displayed upon a User's search request on the Yahoo Main Site for a Yahoo
Printing Center Keyword designated for that Yahoo Property. For clarity, a
search conducted within other Yahoo Properties that include special subject
matter based search engines (e.g., Yahoo Auctions, Yahoo Classifieds, Yahoo
Clubs, Yahoo News, Yahoo Shopping, Yahoo Yellow Pages) shall not be considered a
search of the Yahoo Main Site for purposes of this definition.
2. YAHOO PRINTING CENTER SITE.
2.1 DEVELOPMENT OF YAHOO PRINTING CENTER SITE. Yahoo shall design and
complete the Yahoo Printing Center Site. Yahoo shall have the sole
responsibility for the design, layout, posting, data conversion and
transfer, content and maintenance of the Yahoo Printing Center Site.
2.2 iPRINT BRAND REFERENCE AND CO-BRANDING OF PAGES. Starting on the Launch
Date, Yahoo shall place the iPrint Brand Reference as a default on
those Pages of the Yahoo Printing Center Site in which iPrint products
and services are exclusively promoted and offered for sale. For
purposes of clarification and without limitation, the iPrint Brand
Reference shall not be displayed (a) on the /***/ of the Yahoo Printing
Center Site, (b) on any Page in the Yahoo Printing Center Site /***/,
or (c) on any /***/ directory Pages of the Yahoo Printing Center Site
in which categories of products or services are identified. Yahoo
agrees that it will not co-brand by placing a fixed logo of any iPrint
Competitor as a default (a) on the front Page of the Yahoo Printing
Center Site, (b) on those Pages in the Yahoo Printing Center Site in
which the products or services of both iPrint and other third party
vendors are offered for sale, or (c) on any top level directory Pages
of the Yahoo Printing Center Site in which categories of products or
services are identified. Notwithstanding the foregoing limitations, in
no event shall Yahoo be precluded from (a) placing a /***/ of any third
party as a default on any /***/ in which such third party's products
and services are exclusively promoted and offered for sale or (b)
selling any advertising or promotions (including, but not limited to,
banners or modules) identifying or referencing any third parties
(including iPrint Competitors) on /***/ of the Yahoo Printing Center
Site.
2.3 iPRINT PRINTING CENTER LINKS. Starting on the Launch Date and
throughout the Term, Yahoo shall place the iPrint Printing Center Links
within the Yahoo Printing Center Site. The parties acknowledge that
placement of the iPrint Printing Center Links within the
/***/ Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
5
Yahoo Printing Center Site shall be at Yahoo's sole discretion;
provided, however, that /***/ of the iPrint Printing Center Links shall
be placed no more than /***/ Pages from the /***/ page of the Yahoo
Printing Center Site, and the iPrint Printing Center Links will appear
substantially similar to the example in Exhibit E.
2.4 iPRINT CONTENT. iPrint may provide to Yahoo iPrint Content, from time
to time. Yahoo may, at its sole discretion, include the iPrint Content
in the Yahoo Printing Center Site.
2.5 iPRINT SERVICES OFFERED TO USERS. iPrint agrees to offer to Users
substantially the same iPrint Services, using ordering process,
delivery methods and customer service generally offered and delivered
to its direct customers through the iPrint Site. iPrint reserves the
right, at its sole discretion, to conduct special promotional offerings
from time to time with third parties unrelated to Yahoo or this
Agreement.
2.6 iPRINT PRICING. iPrint agrees that the pricing for the iPrint Services
for Users shall be /***/ offered to other customers on iPrint's Site,
with the exception of free offers that iPrint may market on the iPrint
Site for first time customers and special promotions which iPrint, in
its sole discretion, may run from time to time. Notwithstanding the
foregoing, the parties may agree to offer special promotions and
discounts (e.g. free offers) exclusively for Users of the Yahoo
Printing Center Site.
3. YAHOO MAIL PROMOTION.
3.1 iPRINT FREE BUSINESS CARD PROMOTION. Starting on the Launch Date and
throughout the Term of this Agreement, Yahoo shall offer the iPrint
Free Business Card Promotion to Users, by delivering the iPrint Free
Business Card Module. iPrint reserves the right to reject orders that
do not comply with the standard requirements that iPrint establishes
for its products and this promotion.
3.2 iPRINT FREE BUSINESS CARD MODULE. Starting on the Launch Date, Yahoo
shall deliver the iPrint Free Business Card Module on the Yahoo Mail
Registration Confirmation Page until its /***/ obligations are met and
the Term of this Agreement has expired.
3.3 iPRINT FULFILLMENT OF FREE BUSINESS CARDS. iPrint shall provide
fulfillment for all qualified Users who request free business cards, at
no charge to Yahoo or its Users, through the iPrint Free Business Card
Promotion in the same manner as iPrint fulfills orders through the
iPrint Site. Notwithstanding the foregoing, the parties agree that
iPrint may charge Users for any reasonable shipping and handling costs
associated with delivery or upgrades of the free business cards.
/***/ Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
6
4. YAHOO PRINTING CENTER PROMOTION.
4.1 INSIDE YAHOO. Starting on the Launch Date, Yahoo shall display the
Yahoo Printing Center Link in the /***/ section of the Yahoo Printing
Center Pages until its /***/ obligations are met.
4.2 INSIDE YAHOO PROMOTIONS. iPrint will provide to Yahoo, on occasion,
special promotions for Users to promote the Yahoo Printing Center Site
(e.g. free address labels for Users). Yahoo agrees to use some of the
special promotions by providing a textual reference to a "special
promotion" (or such other general term determined by Yahoo) on some of
the Yahoo Printing Center Links (which Yahoo Printing Center Links are
being placed on the /***/ section of the Yahoo Printing Center Pages
pursuant to section 4.1, and will link to the /***/ Page of the Yahoo
Printing Center Site). Further, Yahoo agrees that when it uses the
"special promotions" in accordance with the foregoing sentence, Yahoo
shall include additional textual and/or graphic references on the /***/
Page of the Yahoo Printing Center Site which relate to the special
promotions (or otherwise distinguish such materials as "special
promotions"). Yahoo and iPrint will make commercially reasonable
efforts to agree in good faith on a mutually acceptable manner in which
to reference special promotions on the /***/ Page of the Yahoo Printing
Center Site as set forth above in this Section. The parties acknowledge
that: (a) the use of any particular special promotion by Yahoo shall be
upon the mutual agreement of the parties; (b) Yahoo shall determine, at
its sole discretion, the placement of the Yahoo Printing Center Links
which will include references to "special promotions" (e.g. Yahoo can
designate that all or only certain of the designated Yahoo Printing
Center Keywords set forth in EXHIBIT I include the reference to
"special promotions"); (c) Yahoo may alternate or change the placement
of the Yahoo Printing Center Links which will include references to
"special promotions" at its sole discretion; (d) Yahoo is not obligated
to deliver any guaranteed minimum number of /***/ of the Yahoo Printing
Center Links which include references to "special promotions;" and, (e)
iPrint shall provide fulfillment for all qualified Users for any
"special promotions" subject to iPrint's standard requirements.
4.3 YAHOO MAIL WELCOME PAGE. Starting on the Launch Date, Yahoo shall
display the Yahoo Printing Center Link (which will permit Users to
navigate to the Page on the Yahoo Printing Center Site where iPrint is
offering free business cards) in the /***/ section of the Yahoo Mail
Welcome Page continuously linked for a period of thirty (30) days
following the Launch Date of the Yahoo Printing Center Site. The
parties acknowledge that Yahoo does not guarantee any number of /***/
for the Yahoo Printing Center Link on the Yahoo Mail Welcome Page and
that any /***/ achieved hereunder shall not count toward the Total
Program Page Views set forth in Section 8.1 herein.
5. YAHOO DELIVERS.
5.1 iPRINT EMAILS. Starting on the /***/ and during the Term, Yahoo will
deliver /***/ iPrint Emails through the Yahoo! Delivers program /***/
throughout the Term of the Agreement on a mutually agreeable schedule.
iPrint Emails shall be delivered only to those registered Users of
Yahoo Mail that have indicated during the registration process for such
service a willingness to receive promotional solicitations via Yahoo
Mail
/***/ Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
7
("Yahoo Delivers Members"); and in accordance with Yahoo's privacy
policy. The text of the iPrint Email shall be provided by iPrint,
consistent with Yahoo's policies and guidelines for such messages
including those set forth at xxxx://xxxx.xxxxx.xxx/xxxx/xxxxxxxxxxx/,
and shall be subject to Yahoo's prior approval. The iPrint Email shall
comply in all respects with Yahoo's standard guidelines for such
promotions, which, together with the iPrint Email specifications set
forth above, may be modified by Yahoo at its sole discretion.
6. CUSTOMER COMMUNICATION AND MARKETING ACTIVITY.
6.1 All materials, information or communications sent to Users by iPrint
shall be subject to Yahoo's prior approval, which shall not be
unreasonably withheld; provided however, that materials, information or
communications sent to Users who have opted-in on iPrint's Site to
receive special promotions and information from iPrint need not be
approved by Yahoo.
6.2 Yahoo and iPrint shall use the confirmation text emails to confirm the
status of an order by the User originating from the iPrint Links or
iPrint Emails, which confirmation text emails are attached hereto as
EXHIBIT N. Emails will display the Yahoo name primarily, with a
mutually agreed upon iPrint reference.
6.3 iPrint may include the same materials, information or promotions for
iPrint Services in packages sent to Yahoo Users (whose orders
originated from the iPrint Links or iPrint Emails) as it provides for
orders through the iPrint Site; provided that, such materials,
information or promotions do not promote any Yahoo Competitors. During
the Term, Yahoo may insert a reasonable amount of information,
promotions and other materials in packages sent to Yahoo Users (whose
orders originated from iPrint Links or iPrint Emails) by iPrint;
provided, however, that (a) Yahoo is responsible for any associated
printing costs, (b) the information, promotions or materials inserted
in such packages are not changed more than /***/ per year, (c) iPrint's
existing processes are used, /***/ (f) Yahoo reimburses iPrint for any
/***/ directly associated with the insertion of the information,
promotions or other material, (g) iPrint's network of printers has the
capability to include such insertions, and (h) Yahoo gives iPrint
reasonable notice and lead time to include the materials. /***/.
6.4 When performing iPrint Services for Users, iPrint may engage in
reasonable contact with Users solely to provide support and customer
service.
7. IMPLEMENTATION.
7.1 iPrint shall provide Yahoo no later than /***/ days after Yahoo's
approval of the co-branded logo on the iPrint Yahoo Site, all URLs, URL
formats (as applicable), content, and other materials (as set forth in
EXHIBIT O) necessary for Yahoo to provide the iPrint Links and iPrint
Emails (hereafter "Deliverables Due Date"). All content and material
contained in the iPrint Links and iPrint Emails shall be subject to
Yahoo's approval and must comply with all applicable federal, state and
local laws, rules and regulations,
/***/ Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
8
including, without limitation, consumer protection laws and rules and
regulations governing product claims, truth in labeling, and false
advertising.
7.2 Yahoo will be solely responsible for the user interface and placement
of the iPrint Links. Yahoo reserves the right, at any time, to redesign
or modify the organization, structure, specifications, "look and feel,"
navigation, guidelines and other elements of the iPrint Links and
iPrint Emails. In the event such a modification materially and
adversely affects any specific iPrint Link, Yahoo will provide iPrint,
as its sole remedy, a comparable promotional placement on a Yahoo
Property mutually agreed upon by the parties.
7.3 In no event shall any /***/ Pages on the iPrint Yahoo Site (as set
forth in Section 7.4) and the /***/ Page on the iPrint Yahoo Site to
which Users click-through from any iPrint Link or iPrint Email contain
graphic or textual hyperlinks, banner advertisements or promotions of
any Yahoo Competitor.
7.4 iPrint shall place a Yahoo graphic link or "back button" on those Pages
of the iPrint Yahoo Site as mutually agreed upon between the parties.
Such Yahoo graphic link and/or "back button" shall (a) be placed in a
manner approved by Yahoo according to iPrint's standard templates,
which approval shall not be unreasonably withheld, (b) contain the
Yahoo Brand Features as provided by Yahoo and (c) directly link the
User back to a Page designated by Yahoo on the Yahoo Properties. iPrint
shall place a Yahoo logo on those Pages within the iPrint Yahoo Site.
Such Yahoo logo shall (a) be placed in a manner according to iPrint's
standard templates and approved by Yahoo, which approval shall not be
unreasonably withheld, and (b) contain the Yahoo Brand Features as
provided by Yahoo.
7.5 Yahoo hereby grants to iPrint a non-exclusive, worldwide, fully paid
license to use, reproduce and display the Yahoo Brand Features solely
in accordance with Section 7.4.
7.6 iPrint hereby grants to Yahoo a limited, non-exclusive, worldwide,
fully paid license to use, reproduce and display the iPrint Brand
Features supplied by iPrint solely for the purposes of creating and
maintaining the iPrint Links and iPrint Emails as set forth herein.
Yahoo may use, reproduce and display the iPrint Brand Features in
connection with additional marketing and promotion of iPrint in the
Yahoo Properties, only with the prior approval of iPrint. iPrint
further grants to Yahoo a limited, non-exclusive, worldwide license to
use, modify, reproduce, distribute, display and transmit the iPrint
Content in electronic form in connection with Yahoo's inclusion of such
content in the Yahoo Printing Center Site and to permit Users of the
Yahoo Properties to download and print the iPrint Content for personal
use; provided that Yahoo's license to modify the iPrint Content shall
be limited to modifying the iPrint Content to fit the format and look
and feel of the Yahoo Property. Any other modifications to the iPrint
Content shall require the prior approval of iPrint.
7.7 The iPrint Yahoo Site shall each (i) handle /***/ simultaneous
requests, and (ii) have a minimum /***/ uptime and maximum 1% downtime
within any /***/ day period (except for Force Majeure events or planned
downtime which may be required for system
/***/ Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
9
enhancements, upgrades and preventative maintenance). iPrint will
handle requests, data transfers and general order processing in the
same manner it currently handles traffic to the iPrint Site. Among
other things, iPrint will process payments, cancellations, and returns;
and will provide customer service support directly to Yahoo Users for
all inquiries regarding the products and services offered on the iPrint
Yahoo Site. iPrint will offer Yahoo Users the same satisfaction
guarantee it offers to customers who order through the iPrint Site.
iPrint reserves the right to reject orders that do not comply with any
requirements that iPrint periodically may establish. iPrint will be
responsible for all aspects of order processing and fulfillment. iPrint
will track sales made to customers who purchase products through the
iPrint Yahoo Site. iPrint agrees to use best efforts to ensure that:
/***/ of all customer care requests will receive responses within /***/
during the workweek period of Monday through Friday and phone support
will be provided between the hours of 6am - 9pm PST. Without
limitation, failure by iPrint to substantially meet any of these
criteria for customer service will be a material breach of this
Agreement.
8. PAGE VIEWS.
8.1 Starting on the /***/ and during the Term, Yahoo will deliver /***/
over the Term a minimum of /***/ Page Views of the iPrint Free Business
Card Module and Yahoo Printing Center Link ("Total Program Page
Views"). During the Term of the Agreement, Yahoo shall use commercially
reasonable efforts to deliver such Page Views as follows:
(a) /***/ Page Views of the iPrint Free Business Card Module on the
Yahoo Mail Registration Confirmation Page
(b) /***/ Page Views of Yahoo Printing Center Link in the Yahoo
Printing Center Pages
Notwithstanding the foregoing and subject to Section 8.2, Yahoo shall
not be in breach of this Agreement for its failure to distribute the
Page Views exactly as set forth in Section 8.1(a) and 8.1(b) above, so
long as (i) the Total Program Page View are met and (ii) Yahoo's
delivers at least /***/ or more of the promised Page Views set forth in
Section 8.1(a) (e.g. Yahoo is not in breach if it delivers /***/ Page
Views of the iPrint Free Business Card Module and /***/ Page Views of
the Yahoo Printing Center Link). The parties acknowledge that Yahoo
does not guarantee any specific number of Page Views for the iPrint
Brand Reference, iPrint Printing Center Links, and iPrint Content, and
any Page Views achieved from such items shall not apply towards Total
Program Page Views set forth above.
8.2 MAKE GOOD. In the event that Yahoo (a) fails to deliver the number of
Page Views at the expiration of the Term or (b) any other failure,
technical or otherwise, of an iPrint Link to appear as provided in the
Agreement, Yahoo will "make good" the shortfall by extending its
obligations in any of the areas of the Yahoo Properties set forth in
Sections 2, 3 and 4 (or similar inventory) beyond the end of the Term
until such Page View obligation is satisfied. Further, in the event
that Yahoo fails to deliver the number of iPrint Emails referred to in
Section 5 above, Yahoo will "make good" the shortfall by extending its
/***/ Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
10
obligations beyond the Term until such email obligation is satisfied.
The provisions set forth in this Section set forth the entire liability
of Yahoo, and iPrint's sole remedy, for Yahoo's breach of its Page View
or email obligations. If any "make good" period extends further than
/***/ past the Term of the Agreement, iPrint shall have the option to
terminate this Agreement and recover a pro-rated portion of its
payments hereunder.
8.3 iPRINT FAILURE TO START PROGRAM. In the event that iPrint fails to (a)
provide Yahoo with all URLs, URL formats (as applicable), content,
artwork and other materials necessary for Yahoo to provide the iPrint
Links or iPrint Emails by the Deliverables Due Date (as defined in
Section 7.1), or (b) design and operate the iPrint Yahoo Site in
accordance with Section 7.7, then (x) the Total Program Page Views set
forth in Section 8.1 and the iPrint Emails to be delivered in Section 5
shall both be reduced on a /***/ basis until iPrint remedies such
failure (e.g., if Yahoo committed to deliver /***/ Page Views over a
/***/ period and iPrint provided Yahoo with the iPrint URL and content
/***/ after the Deliverables Due Date, then Yahoo's Page View
obligation would be reduced by /***/ Page Views) and (y) a pro-rated
portion of the payments made or due hereunder will be converted to a
non-refundable, non-creditable holding fee for making the applicable
advertising inventory available to iPrint.
8.4 CALCULATION OF PAGE VIEWS. Calculations of Page Views delivered under
this Agreement shall be measured by Yahoo's advertising reporting
system. Online reports of Page Views are audited by the Audit Bureau of
Circulations (ABC Interactive). Ernst & Young, LLP has reviewed and
examined the effectiveness Yahoo's controls over its advertising
measurement and reporting functions and the use of standard
methodologies and metrics as defined by the Internet Advertising Bureau
(IAB).
8.5 MEETINGS AND AUDITS. The parties shall each designate a person
responsible for the performance of that party's obligations under this
Agreement (hereafter "Designated Individual"). Such Designated
Individuals shall respond to problem calls in a timely manner. The
Designated Individuals will participate in regular communication
throughout the Term of this Agreement to assess the progress of this
promotion. Each party shall provide the other with an emergency contact
number (e.g. pager number). In the event either party reasonably
believes that the other party's Designated Individual is not being
reasonably responsive, the parties shall immediately set up a meeting
to resolve such issues which will include the managers of the
Designated Individuals. Yahoo will provide iPrint with Web based access
to its Page View tracking database for instant monitoring.
9. COMPENSATION.
9.1 iPrint will pay Yahoo a non-refundable, non-creditable fee of eight
million dollars ($8,000,000) (the "Fee") payable in accordance with
the schedule set forth below. /***/ of the first payment is
designated as a non-refundable and non-creditable set up fee for
design, setup and development of the iPrint Links and iPrint Emails.
PAYMENT DATE
$/***/ /***/
/***/ Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
11
Notwithstanding the foregoing payment schedule, in no event shall
iPrint be obligated to make the 2nd through 6th payments prior to
/***/.
9.2 WARRANT. Upon execution of this Agreement, iPrint will issue the
warrants to Yahoo in the forms attached hereto as EXHIBIT K.
9.3 PAYMENT INFORMATION. Except as otherwise provided herein, all payments,
including the equity consideration, herein are non-refundable and
non-creditable and shall be made by iPrint via wire transfer into
Yahoo's main account pursuant to the following wire transfer
instructions:
Institution Name: /***/
Institution Address: /***/
ABA: /***/
Beneficiary Name: /***/
Beneficiary Account Number: /***/
9.4 LATE PAYMENTS. Any portion of the above payments which has not been
paid to Yahoo within /***/ 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 iPrint to make the payments specified in Sections 9.1, and
9.2 on the dates set forth therein shall constitute a material breach
of this Agreement.
9.5 PAYMENTS UPON TERMINATION. If either party terminates this Agreement
pursuant to Section 10.2, iPrint will no longer be responsible for
future payments hereunder. In addition, if either party terminates this
Agreement pursuant to Section 10.2, Yahoo will refund a pro-rated
(calculated over the Term of the Agreement) portion of such payment.
10. TERMINATION.
10.1 TERM. This Agreement shall commence upon the Effective Date and, unless
otherwise terminated as provided herein, shall remain in effect for the
Term.
10.2 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 (except in the case of failure to make a timely
payment), Yahoo shall have the right to suspend performance under
Sections 2, 3, 4 and 5 of this Agreement for the notice period unless
and until the breach is fully remedied by iPrint prior to the
expiration of the notice period.
/***/ Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
12
10.3 SURVIVAL. The provisions of Sections 1, 8.2, 10.3, and 11 through 16
shall survive expiration or termination of this Agreement.
11. LIMITED EXCLUSIVITY AND RIGHT OF FIRST PRESENTATION.
11.1 LIMITED EXCLUSIVITY. During the Term, Yahoo shall not /***/. Subject to
the foregoing, Yahoo shall not be precluded from placing banners,
buttons, modules or any other advertising of any entity (including
Yahoo or iPrint Competitors) on the Yahoo Mail Registration
Confirmation Page or any Page in any Yahoo Property.
11.2 RIGHT OF FIRST PRESENTATION - NEW FUNCTIONALITY. In the event that
Yahoo, in its sole discretion, elects to add new functionality related
to the offering of printing services or products to the Yahoo Printing
Center Site after the Effective Date, Yahoo will provide prior notice
to iPrint. The parties acknowledge that /***/ shall not be deemed to be
considered new functionality. Such notice shall describe such new
functionality in reasonable detail and Yahoo's reasonable business
requirements for the noticed opportunity. Yahoo /***/ to any third
party (including an iPrint Competitor) if iPrint /***/.
11.3 RIGHT OF FIRST PRESENTATION - FREE BUSINESS CARD MODULE. In the event
that Yahoo, in its sole discretion, elects to extend the promotional
opportunity /***/, Yahoo will provide written notice to iPrint at least
/***/ days prior to the expiration of the Term. Such notice shall
describe Yahoo's reasonable business requirements for such extension.
Yahoo may offer the opportunity to any third party (including an iPrint
Competitor) if /***/.
11.4 RIGHT OF FIRST PRESENTATION - BANNER ADS - /***/ CHARTER SPONSORSHIP.
iPrint shall have the option of purchasing /***/ banner advertisements
on (a) the /***/ of the Yahoo Printing Center Site and (b) the /***/ of
the Yahoo Printing Center Site /***/ (hereafter, the Pages identified
in 11.4(a) and 11.4(b) will be collectively referred to as "11.4 Banner
Ad Pages") at the charter sponsorship rate of $/***/ for the first
/***/ after /***/. Yahoo /***/ to any third party (including an iPrint
Competitor) if iPrint /***/.
11.5 RIGHT OF FIRST PRESENTATION - BANNER ADS - EXPIRATION OF /***/ CHARTER
SPONSORSHIP. If iPrint accepts the opportunity identified in Section
11.4 and if Yahoo elects to continue to offer for sale banner
advertisements on the 11.4 Banner Ad Pages, Yahoo will provide notice
to iPrint at least /***/ days before the expiration of the /***/
charter sponsorship program identified in Section 11.4. Such notice
shall describe Yahoo's reasonable business requirements for the
purchase of /***/ banner advertisements on the 11.4 Banner Ad Pages,
which in no event shall be offered /***/. Yahoo /***/ to any third
party (including an iPrint Competitor) if /***/.
12. CONFIDENTIAL INFORMATION AND PUBLICITY.
12.1 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
/***/ Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
13
party's prior written approval and consent. If this Agreement or any of
its terms must be disclosed under any law, rule or regulation, the
disclosing party shall give written notice of the intended disclosure
to the other party promptly upon receipt of the notice to disclose and
within a reasonable time prior to any compelled disclosure under any
law, rule or regulation.
12.2 PUBLICITY. Any and all publicity relating to this Agreement and
subsequent transactions between Yahoo and iPrint and the method of its
release shall be approved in advance of the release in writing by both
Yahoo and iPrint. Yahoo agrees that it will issue a press release
announcing the Yahoo Printing Center Site (subject to the successful
launch of the Yahoo Printing Center Site) which includes a reference to
iPrint as the only current member of the Yahoo Printing Center Site.
12.3 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 ("Yahoo User Data"). All information and data provided to
iPrint through the iPrint Yahoo Site, iPrint Site or otherwise
collected by iPrint relating to User activity on such Web sites shall
be retained by and owned solely by iPrint ("iPrint User Data";
collectively iPrint User Data and Yahoo User Data shall be referred to
as "User Data"). Subject to the terms of this Agreement, Yahoo agrees
to grant a non-exclusive license to iPrint to the User's email address
solely for the limited purpose of providing the iPrint Free Business
Card Promotion contemplated under Section 3 of this Agreement
(hereafter "Licensed User Data"). iPrint agrees that such license to
the Licensed User Data shall expire at the end of the Term, or upon
iPrint's breach of any of the provisions of the Agreement. Upon
expiration of the license, iPrint agrees not to use the Licensed User
Data for any purpose and to remove all copies of the Licensed User Data
from its databases and records, except to the extent necessary for
archival purposes, in connection with any sales transactions, or if
obtained by iPrint from the User independently. Each party agrees to
use User Data only as authorized by the User and shall not disclose,
sell, license or otherwise transfer any such User Data to any third
party or use the User Data for the transmission of "junk mail," "spam,"
or any other unsolicited mass distribution of information. If any User
requests, or if Yahoo requests on behalf of any User, that iPrint
remove all personally identifiable information relating to such User
from iPrint's database and other records, then iPrint shall promptly
remove such personally identifiable information from its database and
other records. In the event that Yahoo requests on behalf of any User
that iPrint remove all personally identifiable information, Yahoo shall
provide iPrint with a copy of any writing from the User to Yahoo
requesting the removal of such information, to the extent such writing
exists.
12.4 PRIVACY OF USER INFORMATION. Both parties shall ensure that all
information provided by Users pursuant to this Agreement is maintained,
accessed and transmitted in a secure environment and in compliance with
industry standard security specifications. iPrint shall provide a link
to its Terms and Conditions including its policy regarding the
protection of User data on those pages of an iPrint Site or iPrint
Yahoo Site where the User is requested to provide personal or financial
information. Further, on any Page on the iPrint Site or iPrint Yahoo
Site which is co-branded with the Yahoo Brand Reference,
/***/ Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
14
iPrint agrees to provide the following language (or other language
agreed upon by the parties): "The information collected on this page is
collected by iPrint and is not collected or used by Yahoo! in any way.
Please read iPrint's privacy policy (link) for more information about
your privacy." iPrint represents and warrants that it will not engage
in any conduct that would cause Yahoo to violate the FTC Order. iPrint
agrees to cooperate fully with Yahoo, and follow and comply with all
reasonable instructions and directions of Yahoo to ensure Yahoo's
compliance with the FTC Order. Yahoo represents and warrants to iPrint
that Yahoo will not engage in any activities that violate the FTC
Order.
12.5 NONDISCLOSURE AGREEMENT. Yahoo and iPrint acknowledge and agree that
the terms of the Mutual Nondisclosure Agreement attached as EXHIBIT L
shall be incorporated by reference and made a part of this Agreement,
and shall govern the use and disclosure of confidential information and
all discussions pertaining to or leading to this Agreement and the
relationship between the parties.
13. INDEMNIFICATION.
13.1 iPrint, at its own expense, will indemnify, defend and hold harmless
Yahoo and its employees, representatives, agents and affiliates from
and against any and all losses, claims, damages, liabilities,
obligations, penalties, judgments, awards, costs, expenses and
disbursements, including without limitation, the costs, expenses and
disbursements, as and when incurred, of investigating, preparing or
defending any action, suit, proceeding or investigation, to the extent
the same is caused by, relates to, based upon, arises out of or in
connection with: (i) the iPrint Brand Features, the iPrint Links, the
iPrint Content, the iPrint Emails, the free business card promotion, or
any material, product or service produced, distributed, offered or
provided on the iPrint Site or iPrint Yahoo Site, including, without
limitation, any material presented on any site on the Internet
produced, maintained, or published by iPrint, infringing in any manner
any Intellectual Property Right of any third party or containing any
material or information that is obscene, defamatory, libelous,
slanderous, that violates any law or regulation, is negligently
performed, or otherwise violates any person's right of publicity,
privacy or personality, or has otherwise resulted in any consumer
fraud, product liability, tort, breach of contract injury, damage or
harm to any person or entity, or (ii) any breach by iPrint of the
representations, warranties or agreements made by it in Section 12.4;
provided, however, that in any such case: (a) Yahoo provides iPrint
with prompt written notice of any such claim, (b)Yahoo permits iPrint
to assume and control the defense of such action, with counsel chosen
by iPrint (who shall be reasonably acceptable to Yahoo), and (c) Yahoo
provides reasonable assistance in the defense so long as iPrint agrees
to pay Yahoo's /***/ expenses, /***/. iPrint will not enter into any
settlement or compromise of all or any part of such claim without
Yahoo's prior written consent, which consent shall not be unreasonably
withheld. Subject to Section 13.1(c), iPrint 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.
13.2 Yahoo, at its own expense, will indemnify, defend and hold harmless
iPrint, its employees, representatives and agents for all losses,
expenses, claims, suits actions or
/***/ Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
15
other proceedings based on or arising from a claim any Yahoo trademark,
service xxxx or other Yahoo Brand Feature infringes in any manner any
Intellectual Property Right of any third party; provided, however, that
in any such case: (a) iPrint provides Yahoo with prompt written notice
of any such claim; and, (b) iPrint permits Yahoo to assume and control
the defense of such action, with counsel chosen by Yahoo (who shall be
reasonably acceptable to iPrint), and (c) iPrint provides reasonable
assistance in the defense so long as Yahoo agrees to pay iPrint's /***/
expenses, /***/. Yahoo will not enter into any settlement or compromise
of all or any part of such claim without iPrint's prior written
consent, which consent shall not be unreasonably withheld. Subject to
Section 13.2(c), Yahoo 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 iPrint in connection
with or arising from any claim, suit, action or proceeding for which
Yahoo is required to indemnify iPrint under this Section.
14. LIMITATION OF LIABILITY.
14.1 EXCEPT WITH RESPECT TO SECTION 13, UNDER NO CIRCUMSTANCES SHALL iPRINT
OR YAHOO 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.
14.2 EXCEPT WITH RESPECT TO EACH PARTY'S OBLIGATIONS UNDER SECTION 13, THE
LIABILITY OF EACH PARTY TO THE OTHER UNDER THIS AGREEMENT SHALL BE
LIMITED TO THE TOTAL PAYMENTS DUE UNDER THIS AGREEMENT.
15. INSURANCE.
Each party agrees that it will maintain insurance with a carrier
generally accepted in the industry and with coverage for commercial
general liability and errors and omissions of at least /***/ dollars
($/***/) per occurrence.
16. GENERAL PROVISIONS.
16.1 INDEPENDENT CONTRACTORS. It is the intention of Yahoo and iPrint that
Yahoo and iPrint 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 iPrint.
16.2 ENTIRE AGREEMENT. This Agreement, together with all Exhibits,
represents the entire agreement between Yahoo and iPrint with respect
to the subject matter hereof and thereof and shall supersede all prior
agreements and communications of the parties, oral or written.
/***/ Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
16
16.3 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.
16.4 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. Any claims or litigation
arising under this Agreement will be brought solely in the federal
courts in the Northern District of California or the state courts in
the County of Santa Clara, California, and the parties consent to the
jurisdiction of such courts.
16.5 SUCCESSORS AND ASSIGNS. Neither party shall assign its rights or
obligations under this Agreement without the prior written consent of
the other party, which 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 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.
16.6 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 acts of God,
fire, flood, earthquake, strike, war (declared or undeclared), embargo,
blockade, legal prohibition, governmental action, failure of suppliers
to perform, riot, terrorist attack (including hacker attacks that could
not be reasonably anticipated or protected against), insurrection,
damage, destruction or any other similar cause beyond the control of
such party.
16.7 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: (408)
731-3301 Attention: Senior Director, Business Development (e-mail:
/***/), with a copy to its General Counsel (e-mail: /***/), and if to
iPrint at 0000 Xxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000, Fax (650)
000-0000, Attention: General Counsel, with a copy to Xxxx Xxxxxxxxx,
Xxxx Xxxx Xxxx Friedenrich, 000 Xxxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx
00000, 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.
16.8 SEVERABILITY. If any provision of this Agreement is held to be invalid,
illegal or unenforceable for any reason, such provision shall, if
possible, be "blue penciled" so that it is valid, legal enforceable and
conforms as closely as possible to the original intent of
/***/ Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
17
the parties. If this is not possible, such provision shall be severed
from the Agreement and, provided that such severance does not deprive a
party of a material benefit of this Agreement, 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.
16.9 SOLE RESPONSIBILITY. iPrint will remain solely responsible for the
operation of the iPrint Site and iPrint Yahoo Site, and Yahoo will
remain solely responsible for the operation of the Yahoo Main Site.
Each party: (a) acknowledges that the iPrint Site, iPrint Yahoo 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.
16.10 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.
16.11 AUTHORITY. Each of Yahoo and iPrint 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.
This Advertising and Promotion Agreement has been executed by the duly
authorized representatives of the parties, effective as of the Effective Date.
YAHOO! INC. xXXXXX.XXX, INC.
By: /s/ Xxxx Xxxxx By: /s/ Xxxxx X. XxXxxxxxx
------------------------- ------------------------
Name: Xxxx Xxxxx Name: Xxxxx X. XxXxxxxxx
------------------------ ------------------------
Title: SUP Title: COO
----------------------- -----------------------
Attn: Chief Sales and Marketing Officer Attn: General Counsel
3420 Central Expressway 0000 Xxxxxxx Xx.
Xxxxx Xxxxx, XX 00000 Xxxxxxx Xxxx, XX 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000 Tel:
e-mail: /***/ Fax:
/***/ Confidential Treatment Requested. The confidential portions have been
filed separately with the Securities & Exchange Commission.
18
