EXHIBIT 10.22
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN PORTIONS OF THIS DOCUMENT.
CONFIDENTIAL PORTIONS HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
ADVERTISING AND PROMOTION AGREEMENT
This Advertising and Promotion Agreement (this "Agreement") is entered into
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as of March 25, 1999 (the "Effective Date") between Yahoo! Inc., a California
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corporation with offices at 0000 Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxx, XX 00000
("Yahoo") and Green Mountain Energy Resources, L.L.C., a Delaware limited
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liability corporation with offices at 00 Xxxxx Xxxxxxxx Xxxxx, Xxxxx Xxxxxxxxxx,
XX 00000-0000 ("Green Mountain").
In consideration of the mutual promises contained in this Agreement, Yahoo
and Green Mountain hereby agree as follows:
1. Definitions.
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The following terms are used in this Agreement with the respective meanings
set forth below:
"Green Mountain Banner" shall mean an advertising promotion substantially
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similar in form as that set forth on Exhibit A that: (a) promotes Green Mountain
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energy services, (b) has dimensions no larger than 468 pixels wide by 60 pixels
high, (c) does not have "looped" animation, (d) does not have any animation
longer than six seconds, (e) has a file size no greater than 12K, and (f) will
permit users to navigate directly to a Page on the Green Mountain Site relating
to consumer energy services. Yahoo may modify these specifications in its
discretion provided that such modification applies to Premier Merchants
generally and does not have a material adverse impact on Green Mountain.
"Green Mountain Button" shall mean a link substantially similar in form as
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that set forth on Exhibit A that: (a) contains a Green Mountain graphic or logo
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and has dimensions no larger than 88 pixels wide by 31 pixels high and promotes
Green Mountain energy services, (b) does not contain animation, (c) has a file
size no greater than 2K, and (d) will permit users to navigate directly to a
Page on the Green Mountain Site relating to consumer energy services. Yahoo may
modify these specifications in its discretion provided that such modification
applies to Premier Merchants generally and does not have a material adverse
impact on Green Mountain.
"Green Mountain E-Mail" shall mean an e-mail message promoting consumer
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energy services 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 30K, (c) does not have "looped" animation, (d) does not have any animation
longer than six seconds, (e) does not contain Java, JavaScript, frames, ActiveX,
dynamic HTML or background colors and (f) will permit users to navigate directly
to a Page on the Green Mountain Site relating to consumer energy services.
Yahoo may modify these specifications in its discretion provided that such
modification applies to Premier Merchants generally and does not have a material
adverse impact on Green Mountain.
"Green Mountain Link" shall mean any link placed by Yahoo under this
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Agreement, including, without limitation, the Green Mountain Banner and Green
Mountain Button. For clarity, each Green Mountain Link shall be provided as
indicated in this Agreement on a rotating basis with promotions of similarly
situated third party advertisers (i.e., no Green Mountain Link
shall be permanently placed on any Page).
"Green Mountain Site" shall mean the web site owned by Green Mountain
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currently located at xxx.xxxxxxxxxxxxx.xxx.
"Launch Date" shall mean the date no later than May 1, on which Yahoo
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activates a Green Mountain Link or delivers a Green Mountain E-Mail.
"Page" means any World Wide Web page (or, for online media other than Web
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sites, the equivalent unit of the relevant protocol).
"Page View" shall mean a user's request for a Page as measured by Yahoo's
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advertiser reporting system and in a manner generally applicable to Yahoo's
Premier Merchants.
"Premier Merchant" shall have the meaning ascribed to such term in Section
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10.3.
"Term" shall mean the period beginning on the Launch Date and continuing
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for a period of twelve (12) months.
"Yahoo Mail Page" shall mean the home page of Yahoo's principal U.S. based
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e-mail service currently located at xxxx://xxxx.xxxxx.xxx or any successor url.
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"Yahoo Main Site" shall mean Yahoo's principal U.S. based directory to the
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World Wide Web currently located at xxxx://xxx.xxxxx.xxx or any successor url.
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"Yahoo Properties" shall mean any Yahoo branded or co-branded media
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properties, including, without limitation, Internet guides, that are developed
in whole or in part by Yahoo or its affiliates.
2. Green Mountain Banner.
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2.1 Yahoo shall provide the Green Mountain Banner throughout the Yahoo
Properties, on a rotating basis until its Page View obligations are
met, to individuals whose Yahoo registration information indicates
that they are over the age of twenty-four and reside in California,
Pennsylvania or New Jersey; provided that Yahoo shall further define
those individuals to which the Green Mountain Banner shall be
displayed as residing in electric utility deregulated areas in
California, Pennsylvania or New Jersey on a zip code basis, if
technically feasible upon reasonable commercial efforts and, if not,
on a DMA basis if technically feasible upon reasonable commercial
efforts. Yahoo acknowledges that banners rotating throughout the Yahoo
Properties generally appear "above the fold" although Yahoo makes no
guarantee with respect to the Green Mountain Banner's placement on any
particular Page of the Yahoo Properties.
3. Green Mountain Button.
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3.1 Yahoo shall provide the Green Mountain Button on the Yahoo Mail Page,
on a rotating basis until its Page View obligations are met, to
individuals whose Yahoo registration information indicates that they
are over the age of twenty-four and
reside in California, Pennsylvania or New Jersey; provided that Yahoo
shall further define those individuals to which the Green Mountain Button shall
be displayed as residing in electric utility deregulated areas in California,
Pennsylvania or New Jersey on a zip code basis, if technically feasible upon
reasonable commercial efforts, and, if not, on a DMA basis if technically
feasible upon reasonable commercial efforts. Yahoo acknowledges that merchant
buttons appearing on the Yahoo Properties generally appear "above the fold"
although Yahoo makes no guarantee with respect to the Green Mountain Button's
placement on the Yahoo Mail Page.
4. Green Mountain E-Mail.
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4.1 Yahoo shall deliver the Green Mountain E-Mail to: (i) *** registered
users of Yahoo's U.S. based email service, Yahoo Mail, that have
indicated during the registration process for such service (x) a
willingness to receive promotional solicitations via Yahoo Mail and
(y) that they are *** and reside in California, Pennsylvania or New
Jersey (provided that Yahoo shall further define those individuals to
which the Green Mountain E-Mail shall be delivered as residing in
electric utility deregulated areas in California, Pennsylvania or New
Jersey on a zip code basis if technically feasible upon reasonable
commercial efforts, and, if not, on a DMA basis if technically
feasible upon reasonable commercial efforts); and (ii) to each Yahoo
Mail user that clicks-through the Green Mountain Button (for clarity,
the e-mails delivered pursuant to this clause (ii) shall not count
against the number of e-mails that Yahoo shall deliver pursuant to
clause (i) of this Section 4.1). The text of the Green Mountain E-Mail
in either case shall be provided by Green Mountain and shall be
subject to Yahoo's approval and consistent with Yahoo's policies and
guidelines for such messages. Yahoo shall use reasonable commercial
efforts to ensure that no more than one (1) Green Mountain E-Mail
referenced in clause (i) of this Section 4.1 is delivered to a Yahoo
Mail user during each four (4) month period of the Term. In addition,
Yahoo agrees to not send such Green Mountain E-Mail to any individual
identified by Green Mountain as a current Green Mountain customer.
5. Implementation.
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5.1 Subject to the provisions of this Agreement, Yahoo will be solely
responsible for the user interface and placement of the Green Mountain
Links and Green Mountain shall be solely responsible for and shall
provide Yahoo with all artwork and design elements of the Green
Mountain Links.
5.2 Green Mountain shall promptly provide Yahoo all URLs, URL formats (as
applicable), content, and other materials necessary for Yahoo to
provide the Green Mountain Links. All content and material contained
in the Green Mountain 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,
***Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the Securities
and Exchange Commission.
truth in labeling, and false advertising.
5.3 Green Mountain hereby grants to Yahoo a non-exclusive, worldwide,
fully paid license to use, reproduce and display the Green Mountain
name and logo (i) to indicate the location of the Green Mountain Links
as set forth herein and (ii) in connection with the marketing and
promotion of Green Mountain in the Yahoo Properties.
5.4 In no event shall any Page on the Green Mountain Site to which users
click-through directly from any Green Mountain Link, contain graphic
or textual hyperlinks, banner advertisements or promotions of any
Yahoo competitors, including, but not limited to: ***
5.5 Green Mountain shall place a Yahoo graphic link on those Pages of the
Green Mountain Site to which users click-through directly from any
Green Mountain Link. Such Yahoo graphic link shall (a) be placed in a
manner approved by Yahoo (b) contain the Yahoo name and logo as
provided by Yahoo and (c) directly link the user back to the Page on
the Yahoo Properties from which the User originated.
5.6 The Green Mountain Site shall comply with the scale, speed and
performance requirements mutually agreed upon by the parties but in no
event less than that which is reasonably equivalent (taking into
account volume differences) to the Yahoo Main Site.
6. Rights of First Presentation.
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6.1 Within *** prior to the expiration of the Term, Yahoo will provide
written notice to Green Mountain in the event that Yahoo, at its sole
discretion, elects to extend this advertising and promotion program.
Yahoo shall describe Yahoo's reasonable business requirements for the
extension in its written notice to Green Mountain. The parties will
use good-faith efforts to negotiate and execute a written extension to
this Agreement under reasonable terms and conditions. If Green
Mountain declines to commence negotiations with Yahoo within *** after
receiving such written notice from Yahoo, or if the parties fail to
reach agreement within *** 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. Under no circumstances
shall the foregoing right of first presentation be deemed to restrict
Yahoo's ability to extend other merchant positions in relating to this
advertising and promotion program to third parties.
6.2 This advertising and promotion program is designed to apply to
residents of California, Pennsylvania and New Jersey. As Green
Mountain energy services become available in additional states, Green
Mountain shall have the right of first presentation to extend this
advertising and promotion program to include such new states on terms
mutually agreed upon by the parties. For clarity, such an extension
shall include advertising and promotions similar in scope and
placement to those
***Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the Securities
and Exchange Commission.
described herein, at prices to be determined by the parties at the
time of such extension.
7. Page Views.
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7.1 With respect to the Green Mountain Banners and Buttons, Yahoo shall
deliver no less than *** Page Views. Yahoo shall use commercially
reasonable efforts to ensure that such Page Views are delivered evenly
to unique users in accordance with Yahoo's standard advertising
delivery system procedures.
7.2 Yahoo will use reasonable commercial efforts to deliver such Page
Views as follows: *** Page Views of the Green Mountain Banner; and ***
Page Views of the Green Mountain Button. Further, Yahoo shall use
reasonable commercial efforts to ensure that the Page Views of the
Green Mountain Banner referenced in this Section 7.2 are allocated
approximately as follows: nineteen (19%) percent to New Jersey
residents, thirty-six percent (36%) to Pennsylvania residents, and
forty-five percent (45%) to California residents (in each case as such
residents are further defined in Section 3.1); provided that if
deregulation on acceptable terms in New Jersey is delayed by more than
one month, on 30 days notice Yahoo shall shift a commensurate amount
of Green Mountain Banners to California and Pennsylvania subject to
availability. Notwithstanding anything to the contrary on this Section
7.2, Yahoo's Page View obligations are with respect to the program as
a whole as set forth in Section 7.1 and Yahoo shall not be in breach
of this Agreement for failure to deliver the number of Page Views in
either of the specific areas set forth in this Section 7.2.
7.3 In the event that Yahoo fails to deliver the number of Page Views
referred to in Section 7.1 above by the expiration of the Term, Yahoo
will "make good" the shortfall by extending its obligations under
Sections 2 and 3 in the areas of the Yahoo Main Site set forth therein
(or similar inventory) beyond the end of the Term until such Yahoo
Page View obligation is satisfied, provided that such obligation shall
be satisfied within six months from the end of the Term. The
provisions set forth in this Section 7.3 set forth the entire
liability of Yahoo, and Green Mountain's sole remedy, for Yahoo's
breach of its Page View obligations set forth in this Section 7.
7.4 Yahoo will treat Green Mountain on a basis reasonably equivalent to
its other Premier Merchants in terms of placement of Green Mountain
Banners and Buttons on the Yahoo Properties and location on specific
pages, taking into account the unique characteristics of this program.
Throughout the Term, the parties shall discuss in good faith mutually
beneficial adjustments to this advertising and promotion program,
subject in all cases to Yahoo's available advertising inventory.
***Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the Securities
and Exchange Commission.
7.5 Yahoo shall provide Green Mountain access twenty-four hours a day,
seven days a week, to an electronic database (updated on a monthly
basis) that describes Yahoo's calculation of the Page Views.
8. Compensation
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8.1 Slotting Fee. In consideration of Yahoo's performance and obligations
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as set forth herein, Green Mountain will pay Yahoo a non-refundable
slotting fee equal to six million nine thousand dollars ($6,009,000).
Such fee shall be payable as follows: (i) *** on the Effective Date
which shall be designated as a set up fee for design, consultation,
development, implementation and placement of the Green Mountain Links;
(ii) *** no less than seven days prior to the Launch Date, (iii) ***
ninety days after the Launch Date; (iv) *** one hundred eighty days
after the Launch Date; and (v) *** two hundred seventy days after the
Launch Date.
8.2 Referral Fee. In addition to the compensation described in Section
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8.1 above, Green Mountain shall pay Yahoo a quarterly referral fee
equal to *** for each new energy services account opened through the
promotions provided by Yahoo under this Agreement (the "Referral
Fee"). Such payments shall be made within ten (10) days of the end of
the calendar quarter for which such payments apply. Under no
circumstances, however, shall the Referral Fee exceed a total of four
hundred thousand dollars ($400,000) for the Term. For purposes of this
Section 8.2, the first calendar quarter of the Term shall be deemed to
be begin as of the Effective Date and end as of June 30, 1999.
8.3 Payment Information. All payments herein are non-refundable and non-
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creditable and shall be made by Green Mountain via wire transfer or
ACH electronic payment into Yahoo's main account pursuant (if by wire
transfer) to the wire transfer instructions set forth on Exhibit B.
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8.4 Late Payments. Any portion of the above payments which has not been
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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 Green Mountain to make the payments specified in Sections
8.1 and 8.2 on the dates set forth therein shall constitute a material
breach of this Agreement.
9. Termination.
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9.1 Term. This Agreement shall commence upon the Effective Date and,
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unless terminated as provided herein, shall remain in effect for the
Term.
9.2 Termination by Either Party with Cause. This Agreement may be
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terminated at any time
***Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the Securities
and Exchange Commission.
by either party: (i) immediately upon written notice if the other
party: (a) files a petition in bankruptcy; or (b) 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 its performance under this Agreement for the notice
period unless and until the breach is fully remedied by Green Mountain
prior to the expiration of the notice period.
9.3 Survival. The provisions of Sections 7.3, 8, 10-14, and this 9.3
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shall survive expiration or termination of this Agreement.
10. Confidential Information, Publicity, Premier Merchant Status.
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10.1 Terms and Conditions. The terms and conditions of this Agreement, all
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discussions pertaining to or leading to this Agreement, and all
information disclosed pursuant to this Agreement shall be considered
confidential and the parties acknowledge and agree to the terms of the
Mutual Nondisclosure Agreement attached hereto as Exhibit C with
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respect to the use and disclosure of such confidential information.
Neither party shall make any public announcement regarding the
existence of this Agreement without the other party's prior written
approval and consent, unless required by law or government regulation
but even then only after reasonable notice to the other party.
10.2 Publicity. Any and all publicity relating to this Agreement and
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subsequent transactions between Yahoo and Green Mountain and the
method of its release shall be approved in advance of the release by
both Yahoo and Green Mountain.
10.3 Premier Merchant Status. This advertising and promotion program
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shall be deemed one of Yahoo's "Premier Merchant" programs, a
designation available only to Yahoo's largest marketing partners (a
"Premier Merchant"). As such, an Account Manager in Yahoo's business
development group shall be responsible for managing this relationship.
Further, subject to Section 10.2, the parties shall be permitted to
publicly refer to this relationship as a "Premier Merchant"
relationship and to Green Mountain as Yahoo's "Premier Merchant" for
consumer energy. Additionally, Green Mountain shall have access to
data and information typically available to Yahoo's "Premier
Merchants."
10.4 User Data. All information and data provided to Yahoo by users of the
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Yahoo Properties or otherwise collected by Yahoo relating to user
activity on the Yahoo Properties shall be retained by and owned solely
by Yahoo.
10.5 Privacy of User Information. Green Mountain shall ensure that all
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information provided by users of the Green Mountain Site is
maintained, accessed and transmitted in a secure environment and in
compliance with security specifications employed through the use of
SSL or similarly appropriate technology. Green Mountain
shall provide a link to its policy regarding the protection of user
data on those pages of the Green Mountain Site where the user is
requested to provide personal or financial information.
11. Indemnification.
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11.1 Green Mountain, 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 any Green
Mountain trademark, service xxxx or other Green Mountain brand
feature, any material, product or service produced, distributed,
offered or provided by Green Mountain, or any material presented on
the Green Mountain 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: (x) Yahoo provides Green Mountain with prompt notice of any
such claim; (y) Yahoo permits Green Mountain to assume and control the
defense of such action upon Green Mountain's written notice to Yahoo
of its intention to indemnify; and (z) upon Green Mountain's written
request, and at no expense to Yahoo, Yahoo will provide to Green
Mountain all available information and assistance necessary for Green
Mountain to defend such claim. Green Mountain 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. Green
Mountain 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.
11.2 Yahoo, at its own expense, will indemnify, defend and hold harmless
Green Mountain and its employees, representatives, agents and
affiliates, against any claim, suit, action, or other proceeding
brought against Green Mountain based on or arising from a claim that
***; provided, however, that in any such case: (x) Green Mountain
provides Yahoo with prompt notice of any such claim; (y) Green
Mountain permits Yahoo to assume and control the defense of such
action *** and (z) upon Yahoo's written request, *** Green Mountain,
Green Mountain will provide to Yahoo all available information and
assistance necessary for Yahoo to defend such claim. Yahoo will not
enter into any settlement or compromise of any such claim, which
settlement or compromise
***Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the Securities
and Exchange Commission.
would result in any liability to Green Mountain, without Green
Mountain's prior written consent, which shall not unreasonably be
withheld. 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 Green Mountain in connection
with or arising from any such claim, suit, action or proceeding.
12. Limitation of Liability.
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12.1 EXCEPT AS PROVIDED IN SECTION 11, UNDER NO CIRCUMSTANCES SHALL GREEN
MOUNTAIN, 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.
13. Insurance.
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13.1 Green Mountain agrees that it will maintain insurance with a carrier
that is reasonably acceptable to Yahoo and with coverage for
commercial general liability and errors and omissions of at least one
million dollars per occurrence. Green Mountain 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.
14. General Provisions.
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14.1 Independent Contractors. It is the intention of Yahoo and Green
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Mountain that Yahoo and Green Mountain 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 Green Mountain.
14.2 Entire Agreement. This Agreement, together with all Exhibits hereto,
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represents the entire agreement between Yahoo and Green Mountain 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
or about March 16, 1999, between Yahoo and Green Mountain.
14.3 Amendment and Waiver. No amendment to, or waiver of, any provision
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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.
14.4 Governing Law. This Agreement shall be governed by and interpreted in
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accordance with the laws of the State of California without regard to
the conflicts of laws principles thereof.
14.5 Successors and Assigns. Neither party shall assign its rights or
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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.
14.6 Force Majeure. Neither party shall be liable for failure to perform
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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; provided that the other party may suspend performance
during such period.
14.7 Notices. All notices, requests and other communications called for
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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 (e-mail: xxxxx@yahoo-
xxx.xxx), with a copy to its General Counsel (e-mail: jplace@yahoo-
xxx.xxx), and if to Green Mountain at the physical and Electronic mail
addresses set forth on the signature page of this Agreement with a
copy to its General Counsel (email: xxxxxx@xxxxxxxxxxxxx.xxx), 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.
14.8 Severability. If any provision of this Agreement is held to be
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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.
14.9 Sole Responsibility. Green Mountain will remain solely responsible
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for the operation of the Green Mountain Site, and Yahoo will remain
solely responsible for the operation of the Yahoo Properties. Each
party: (a) acknowledges that the Green Mountain Site and the Yahoo
Properties 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.
14.10 Counterparts. This Agreement may be executed in two counterparts,
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both of which taken together shall constitute a single instrument.
Execution and delivery of this Agreement may be evidenced by
facsimile transmission.
14.11 Authority. Each of Yahoo and Green Mountain represents and
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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.
14.12 Attorneys Fees. The prevailing party in any action to enforce this
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Agreement shall be entitled to reimbursement of its expenses,
including reasonable attorneys' fees.
[Signature page follows]
This Advertising and Promotion Agreement has been executed by the duly
authorized representatives of the parties, effective as of the Effective Date.
YAHOO! INC. GREEN MOUNTAIN ENERGY RESOURCES, L.L.C.
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx Xxxxxxxx Name: Xxxxx X. Xxxxxxx
Title: Vice President, Business Title: Chief Marketing Officer
Development
Attn: VP, Business Development
0000 Xxxxxxx Xxxxxxxxxx
Xxxxx Xxxxx, XX 00000
Tel.: (000) 000-0000 Tel: 000.000.0000
Fax: (000) 000-0000 Fax: 000.000.0000
e-mail: xxxxx@xxxxx-xxx.xxx e-mail: xxxxxxx@xxxxxxxxxxxxx.xxx
EXHIBIT A
[Screen Shots of Green Mountain Links]
EXHIBIT B
Wire Transfer Instructions
Yahoo's Bank Information:
Institution Name: ***
Institution Address: ***
ABA: ***
Beneficiary Name: Yahoo! Inc.
Beneficiary Account Number: ***
***Confidential treatment has been requested for the redacted portions. The
confidential redacted portions have been filed separately with the Securities
and Exchange Commission.
EXHIBIT C
MUTUAL NONDISCLOSURE AGREEMENT TERMS
1. "Confidential Information" is that confidential, proprietary, and
trade secret information being disclosed by the disclosing party pursuant to
this Agreement.
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 court or other governmental body, as otherwise
required by law or governmental regulation, 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 this 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 has 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.
