*Confidential treatment has been requested with respect to certain information
contained in this document. Confidential portions have been omitted from the
public filing and have been filed separately with the Securities and Exchange
Commission.
EXHIBIT 10.32
ADVERTISING AND PROMOTION AGREEMENT
This Advertising and Promotion Agreement (the "Agreement") is entered into as of
March 8, 2000 (the "Effective Date") between Yahoo! Inc. ("Yahoo"), a Delaware
corporation with offices at 0000 Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxx, XX 00000, and
DoveBid Incorporated ("DoveBid") a Delaware corporation with offices at 0000
Xxxx Xxxxxxxxx Xxxx., Xxxxxx Xxxx, Xxxxxxxxxx 00000.
In consideration of the mutual promises contained in this Agreement, Yahoo
and DoveBid hereby agree as follows:
1. Definitions.
-----------
The following terms are used in this Agreement with the respective
meanings set forth below:
"Affiliate" shall mean any company or any other entity world-wide in which
---------
Yahoo owns at least a twenty percent ownership, equity, or financial interest,
including, without limitation, corporations, partnerships, joint ventures, and
limited liability companies.
"Anchor Tenant Module" means an advertising unit that conforms to the
--------------------
specifications of the DoveBid Anchor Tenant Module.
"Business to Business Merchant" means a company or other entity that
-----------------------------
derives at least 50% of its revenue from the on-line sale of
industrial/commercial equipment to other businesses.
"Co-Branded Banner" means an advertising unit designed and created by
-----------------
Yahoo, that (a) promotes the Yahoo B2B Site; (b) contains DoveBid Brand Features
and Yahoo Brand Features and other content all subject to DoveBid's approval not
to be unreasonably withheld; (c) has dimensions no larger than 468 pixels wide
by 60 pixels high; (d) does not contain animation longer than 6 seconds; (e)
does not contain "looped" animation; (f) has a file size no greater than 15K;
and (g) permits users to navigate directly to the Yahoo B2B Site.
"Co-Branded Button" means an advertising unit designed and created by
-----------------
Yahoo, that (a) promotes the Yahoo B2B Site; (b) contains DoveBid Brand Features
and Yahoo Brand Features and other content all subject to DoveBid's approval not
to be unreasonably withheld; (c) has dimensions no larger than 88 pixels wide by
31 pixels high; (d) contains three lines of text each line that is no more than
16 characters in length, including spaces; (e) does not contain
*Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
animation; (f) has a file size no greater than 4K; and (g) permits users to
navigate directly to the Yahoo B2B Site.
"DoveBid Anchor Tenant Module" means an advertising unit substantially
----------------------------
similar in form to the example set forth in Exhibit A that (a) promotes
---------
DoveBid's business to business on-line auction service; (b) contains DoveBid
Brand Features; (c) contains an image in .GIF or .JPG format that is no larger
than 170 pixels wide by 35 pixels high and has no more than 125 characters,
including spaces; (e) contains 3 bullet points then text where each line is no
more than 28 characters, including spaces; (g) does not contain animation; (h)
has a file size no greater than 4K; and (i) permits users to navigate directly
to a Page on the DoveBid Site primarily related to the on-line purchase of the
industrial/commerical equipment promoted in the DoveBid Anchor Tenant Module.
"DoveBid Banner" means an advertising unit designed and created by DoveBid,
--------------
subject to Yahoo's approval not to be unreasonably withheld, that (a) promotes
the on-line sale of industrial/commercial equipment by DoveBid; (b) contains
DoveBid Brand Features; (c) has dimensions no larger than 468 pixels wide by 60
pixels high; (d) does not contain animation longer than 6 seconds; (e) does not
contain "looped" animation; (f) has a file size no greater than 15K; and (g)
permits users to navigate directly to a Page on the DoveBid Site or a DoveBid
Subsidiary Site dedicated to on-line sale of industrial/commercial equipment.
For example, the keyword "agricultural machinery" must link to a Page on the
DoveBid Site or a DoveBid Subsidiary Site that will be dedicated to the online
purchase "agricultural machinery".
"DoveBid Banner Category Pages" means those Pages identified on Exhibit B
----------------------------- ---------
provided that, Yahoo may substitute any Pages for comparable placement due to
changes in the directory or applicable Yahoo Property. Upon written notice to
DoveBid of such changes, Exhibit B will be deemed to be so amended.
---------
"DoveBid Banner Keywords" means those keywords identified on Exhibit C of
----------------------- ----------
this Agreement; provided that, Yahoo may substitute any such keyword for a
comparable keyword that is reasonably approved by DoveBid.
"DoveBid Banner Search Results Pages" means those pages displayed upon a
-----------------------------------
user's search request on the Yahoo Main Site for a DoveBid Banner Keyword. 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) will not be
considered a search of the Yahoo Main Site for purposes of this definition.
"DoveBid Banner Pages" means (a) the DoveBid Banner Category Pages and (b)
--------------------
the DoveBid Banner Search Results Pages.
"DoveBid Brand Features" means all trademarks, service marks, logos and
----------------------
other distinctive brand features of DoveBid that are used in or relate to its
business.
"DoveBid Button" means an advertising unit designed and created by DoveBid,
--------------
subject to Yahoo's approval not to be unreasonably withheld, that (a) contains
DoveBid Brand Features; (b) has dimensions no larger than 88 pixels wide by 31
pixels high;
*Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
2
(c) contains three lines of text each line that is no more than 16 characters in
length, including spaces; (d) does not contain animation; (e) has a file size no
greater than 4K; and (f) permits users to navigate directly to a Page on the
DoveBid Site or on a DoveBid Subsidiary dedicated to the on-line sale of
industrial/ commercial equipment. For example, the keyword "agricultural
machinery" must link to a page on DoveBid's Site or a DoveBid Subsidiary Site
that will be dedicated to the online purchase "agricultural machinery".
"DoveBid Button Category Pages" means those Pages identified on Exhibit B
----------------------------- ---------
provided that, Yahoo may substitute any Pages for comparable placement due to
changes in the directory or applicable Yahoo Property. Upon written notice to
DoveBid of such changes, Exhibit B will be deemed to be so amended.
---------
"DoveBid Button Keywords" means those keywords identified on Exhibit D of
----------------------- ----------
this Agreement; provided that, Yahoo may substitute any such keyword for a
comparable keyword that is reasonably approved by DoveBid.
"DoveBid Button Pages" means (a) the DoveBid Button Category Pages and (b)
--------------------
the DoveBid Button Search Results Pages.
"DoveBid Button Search Results Pages" means those pages displayed upon a
-----------------------------------
user's search request on the Yahoo Main Site for a DoveBid Button Keyword. 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) will not be
considered a search of the Yahoo Main Site for purposes of this definition.
"DoveBid Content" means all listings data included on the DoveBid Site or
---------------
any DoveBid Subsidiary Site, including, without limitation, product names,
product descriptions, quantity, shipping information, images, manufacturer
and/or distributor names, price information, and URLs.
"DoveBid E-Mail Message" means an electronic mail message that (a) promotes
----------------------
the on-line sale of industrial/commercial equipment by DoveBid; (b) conforms to
Yahoo Delivers' then current guidelines; (c) is a single HTML message that does
not exceed 425 pixels in width, which Yahoo will enclose within a table and
place between the required header and footer information; (d) contains no more
than 28 lines of text with no more than 68 characters per line and a maximum of
6 URLs, (e) consists of HTML code that is free of errors and passes the weblint
validation checker or a similar validation process; (f) has a total file size,
including HTML code and graphics, no larger than 30K; (g) does not contain more
than six images, (h) does not contain animation longer than 6 seconds; (i) does
not contain "looped" animation; (i) does not contain Java, JavaScript, frames,
ActiveX or dynamic HTML; (j) does not have body background image or color,
except that colored tables may be used to simulate a background color; (k)
addresses users as Yahoo Delivers members (e.g., "An exclusive offer for Yahoo!
Delivers members."); (l) has a subject line that contains no more than 45
characters, including spaces, and substantially conforms to the following
format: "Yahoo! Delivers: A Special Offer from DoveBid."; and (m) permits users
to navigate directly to a Page on the DoveBid Site or
*Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
3
DoveBid Subsidiary Site dedicated to the on-line purchase of
industrial/commercial equipment promoted in the DoveBid E-Mail Message.
"DoveBid Link" means any Link placed by Yahoo under this Agreement,
------------
including but not limited to the DoveBid Banner, the DoveBid Button, the DoveBid
E-Mail Message, Yahoo Mail Logout Button, Yahoo Mail Welcome Button and the
DoveBid Anchor Tenant Module.
"DoveBid Site" means the Web site owned or operated on behalf of DoveBid
------------
dedicated to business to business on-line auction service and is currently
located at xxxx://xxx.xxxxxxx.xxx.
"DoveBid Subsidiary" means an entity wholly owned by DoveBid dedicated to
------------------
business to business on-line auction services.
"DoveBid Subsidiary Site" means the Web site owned or operated on behalf of
-----------------------
a DoveBid Subsidiary to which a user is directed from a DoveBid Link and that is
dedicated to business to business on-line auction services.
"Front Page Promotion" means a link that (i) has dimensions no greater than
--------------------
230 pixels wide by 33 pixels tall, (ii) does not contain "looped" animation,
(iii) does not have any animation longer than 6 seconds, (iv) promotes DoveBid's
business to business auction services, (v) has a file size no greater than 3K,
(vi) contains DoveBid Brand Features on banners and jump page, and (vii) links
directly to a jump page on Yahoo or the DoveBid Site [or DoveBid Subsidiary
Site mutually approved by the parties, where a prominent, above the fold image
relevant to the promotion, measuring no less than 280,080 pixels, is displayed
and (viii) contains a sweepstakes with a price value of $10,000 or more.
"FTC Order" means 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 G and any
---------
and all subsequent or related official materials, regulations, laws, judgments
or orders.
"Launch Date" means the date that the Yahoo B2B Site is publicly available
-----------
and the DoveBid Anchor Tenant Module is placed on the front Page of the Yahoo
B2B Site in accordance with the terms of this Agreement, except that in the
event of any failure or delay on the part of DoveBid, the Launch Date will be
deemed the date that the Yahoo B2B Site is otherwise functional and available to
the public.
"Link" or "link" means a visible graphic or textual indicator located
---- ----
within a Page that permits a user to navigate the World Wide Web; when selected
by a user, this indicator 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 establishes a direct connection between the browser and
the new Page.
"Page" means any World Wide Web page (or, for on-line media other than Web
----
sites, the equivalent unit of the relevant protocol).
*Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
4
"Page View" means a user's request for a Page as measured by Yahoo's
---------
advertising reporting system.
"Run of Network" means banner placements in the north banner position
--------------
across the Yahoo Properties.
"Second Payment Date" means the date described in Section 4.2.
-------------------
"Term" means the period beginning on the Effective Date and continuing for
----
[*] from the Launch Date, unless either party terminates this Agreement in
accordance with Sections 5.6, 5.7 or 10.
"Yahoo B2B Site" means that U.S. targeted Yahoo Property that Yahoo intends
--------------
to develop (currently intended to be named Yahoo Marketplace) that is dedicated
to business to business commerce (currently intended to be located at
xxxx://X0X.@Xxxxx.xxx).
"Yahoo Brand Features" means all trademarks, service marks, logos and other
--------------------
distinctive brand features of Yahoo that are used in or relate to its business.
"Yahoo Competitors" means [*] and their successors in interest, wholly-
-----------------
owned subsidiaries, acquisitions and acquirers.
"Yahoo Delivers" means Yahoo's U.S. targeted direct marketing program
--------------
conducted via Yahoo Mail.
"Yahoo Mail" means Yahoo's U.S. targeted electronic mail property,
----------
currently located at xxxx://xxxx.xxxxx.xxx.
"Yahoo Mail Logout Button" means a link that contains (a) a DoveBid logo
------------------------
with dimensions no larger than 88 pixels wide by 31 pixels high, (b) has a file
size of no greater than 2K, (c) contains a pull down menu with a file size of no
more than 1.35K and no more than 5 options, (d) a maximum of twenty five
characters per line (including spaces), and (e) each character url may not
exceed 200 characters in each redirect url.
"Yahoo Mail Welcome Button" means a link that contains (a) a DoveBid logo
-------------------------
with dimensions no larger than 88 pixels wide by 31 pixels high, (b) has a file
size of no greater than 2K, (c) contains two lines of text; (d) each line of
text containing no more than twenty five characters (including spaces), and (e)
does not contain any animation.
"Yahoo Main Site" means Yahoo's principal U.S. targeted directory to the
---------------
World Wide Web currently located at xxxx://xxx.xxxxx.xxx.
"Yahoo Properties" means any Yahoo branded or co-branded media properties,
----------------
including but not limited to Internet guides, that are developed in whole or in
part by Yahoo or its Affiliates.
2. DoveBid Banners, Buttons and Modules.
------------------------------------
*Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
5
2.1 Yahoo will provide the DoveBid Banner on the DoveBid Banner
Pages, on a rotating basis until its Page View obligation under
Section 8.1 is met.
2.2 Yahoo will provide the DoveBid Button on the DoveBid Button
Pages, the Yahoo Mail Logout Button on the logout page of Yahoo
Mail, and the Yahoo Mail Welcome Button on the welcome Page of
Yahoo Mail, all on a rotating basis until its Page View
obligation under Section 8.1 is met.
2.3 Yahoo will provide the DoveBid Anchor Tenant Module on the front
Page of the Yahoo B2B Site on an [*] rotation with the [*] other
Anchor Tenant Modules. Yahoo will also provide the DoveBid Anchor
Tenant Module on a rotating basis on those category Pages and
subcategory Pages of the Yahoo B2B Site set forth in Exhibit E.
---------
The DoveBid Anchor Tenant Module will be placed on [*] of the
aggregate category Pages and subcategory Pages of the Yahoo B2B
Site. Subject to the limitations set forth in Section 8.1,
DoveBid will have the opportunity to substitute or to request
additional category Pages and subcategory Pages in the Yahoo B2B
Site to maximize DoveBid's placement within those areas of the
Yahoo B2B Site that correspond to listings that appear on
DoveBid's online auction services business; provided that (a) the
distribution will be fairly equivalent over every calendar
quarter during the Term (e.g., DoveBid may not request a
substitution or reallocation that results in moving the [*] of
the total category and subcategory Pages to be delivered entirely
in a future calendar quarter), and (b) all substitutions or
additions are subject to availability and Yahoo's approval(not to
be unreasonably withheld).
3. DoveBid E-Mail Message.
----------------------
3.1 Yahoo will deliver [*] DoveBid E-Mail Messages to those
registered Yahoo Mail users who have indicated in their Yahoo
Mail preferences a willingness to receive promotional offers via
Yahoo Delivers. Yahoo will deliver the DoveBid E-Mail Message in
accordance with Yahoo's privacy policy.
3.2 DoveBid will provide to Yahoo all text of the DoveBid E-Mail
Message and any other materials necessary for DoveBid to
participate in Yahoo Delivers. Such materials will be (a) subject
to Yahoo's approval, which will not be unreasonably withheld, and
(b) consistent with Yahoo's policies and guidelines for such
messages and for Yahoo Delivers generally.
4. Promotion of the Yahoo B2B Site.
-------------------------------
4.1 Yahoo shall promote the Yahoo B2B Site by placing advertising
placements created by Yahoo on certain Yahoo Properties as
determined in Yahoo's sole discretion. Such Yahoo Properties may
include but are not limited to the following: [*]
*Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
6
The type, timing and placement of these advertising placements
shall be at Yahoo's reasonable discretion.
4.2 Yahoo agrees to provide advertising placements promoting the
Yahoo B2B Site on the front Page of Yahoo! Auctions and the front
Page of Yahoo! Small Business. DoveBid's second payment under
Section 9.1 will be due on the date that Yahoo places such
promotions on those Yahoo Properties. Such date is referred to as
the "Second Payment Date."
4.3 Yahoo will provide Co-Branded Banners and Co-Branded Buttons on a
rotating basis across the Yahoo Properties. The number of Page
Views of such Co-Branded Banners and Co-Branded Buttons will be
mutually determined by the parties but will be equivalent to [*]
in advertising value. The manner, timing and placement of such
Co-Branded Banners and Co-Branded Buttons shall be determined by
Yahoo and reasonably approved by DoveBid.
4.4 Yahoo will provide Front Page Promotion to be scheduled on dates
mutually agreed to by the parties. All Front Page Promotions are
subject to availability and Yahoo standard terms for Front Page
Promotions.
5. Implementation of DoveBid Links.
-------------------------------
5.1 Yahoo will be solely responsible for the user interface and
placement of the DoveBid Links on the Yahoo Properties, except
that Yahoo agrees that the DoveBid Banner and DoveBid Button will
appear in a manner substantially similar to the examples set
forth in Exhibit J. DoveBid will be solely responsible for and
---------
will provide Yahoo with all text, artwork and design elements of
the DoveBid Links.
5.2 Yahoo reserves the right, at any time, to redesign or modify: (i)
the organization, structure, specifications, "look and feel,"
navigation, guidelines and other elements of the Yahoo Properties
on which a DoveBid Link is placed; or (ii) the Yahoo B2B Site and
the layout of the DoveBid Content. If any such redesign or
modification materially and adversely affects in any manner the
nature of the distribution, promotions, and/or placements
required under this Agreement (including without limitation any
DoveBid Link or DoveBid Content), Yahoo will notify DoveBid and
will work with DoveBid in good faith to provide DoveBid, as its
sole remedy, with comparable distribution, promotions and/or
placements on the Yahoo Properties which will be subject to
DoveBid's reasonable approval.
*Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
7
5.3 DoveBid will provide to Yahoo all URLs, URL formats (as
applicable), content and other materials necessary for Yahoo to
provide the DoveBid Links in accordance with the specifications
set forth in this Agreement and Yahoo's standard advertising
guidelines, currently located at
xxxx://xxxx.xxxxx.xxx/xxxx/xxxxxxxxxxx/ (the "DoveBid
-------
Deliverables"). All content and material contained in the DoveBid
------------
Links are subject to Yahoo's approval (which shall not be
unreasonably withheld) and must comply with all applicable
federal, state and local laws, rules and regulations, including
but not limited to consumer protection laws and rules and
regulations governing product claims, truth in labeling and false
advertising.
5.4 In no event will the first Page on the DoveBid Site or on a
DoveBid Subsidiary Site contain graphic or text links,
advertisements or promotions of any Yahoo Competitors. This
restriction does not apply to (a) Yahoo Competitors that may
appear as [*] the [*] by [*] or (b) any [*], [*] and [*] made
available by Yahoo Competitors that are [*] as a [*] in the [*].
5.5 DoveBid will place a Yahoo graphic link on those Pages of the
DoveBid Site or the DoveBid Subsidiary Site to which Yahoo users
click through directly from any DoveBid Anchor Tenant Module,
DoveBid Button, Yahoo Welcome or Yahoo Logout Button. DoveBid
will also use its best efforts to include a Yahoo graphic link on
any page to which users click through directly from any other
DoveBid Link placed by Yahoo under this Agreement. The Yahoo
graphic link will (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 a page designated by Yahoo.
5.6 DoveBid will design and operate the DoveBid Site and each DoveBid
Subsidiary Site to (a) handle [*] simultaneous requests; (b) have
a minimum [*] uptime and maximum [*] downtime per calendar
quarter of the Term (except for planned downtime that may be
required for system enhancements, upgrades or preventative
maintenance); and (c) ensure that data transfers from the DoveBid
Site to the Yahoo Properties initiate within less than [*], on
average, of request. DoveBid will provide customer service
support for all inquiries regarding the services offered on the
DoveBid Site. DoveBid will provide the following customer service
information on the DoveBid Site in a manner mutually agreed to by
the parties: (i) an email address and other contact information,
and (ii) information/guidelines on DoveBid's policy regarding
disputes. DoveBid agrees that: [*] of all customer care requests
will receive responses within [*] hours. The criteria set forth
in the preceding three sentences will be referred to hereinafter
as the "DoveBid Performance Criteria".) Without limitation, if
----------------------------
DoveBid fails to meet any of the DoveBid Performance Criteria in
any material respect, Yahoo will have the right to terminate the
Agreement if DoveBid does not cure such failure
*Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
8
within [*] days following written notice thereof to DoveBid. In
the event of such termination, DoveBid will not be required to
make any further payments to Yahoo (other than to make any
payments accrued and not paid (including revenue share payments)
through the date of termination).
5.7 Yahoo will design and operate the Yahoo B2B Site to (a) handle
[*] simultaneous requests; (b) have a minimum [*] uptime and
maximum [*] downtime per calendar quarter of the Term (except for
planned downtime that may be required for system enhancements,
upgrades or preventative maintenance); and (c) ensure that data
transfers from the Yahoo B2B Site to the DoveBid Site or any
DoveBid Subsidiary Site initiate within less than [*], on
average, of request. Without limitation, if Yahoo fails to meet
any of the above criteria in any material respect, DoveBid will
have the right to terminate the Agreement if Yahoo does not cure
such failure within [*] days following written notice thereof to
Yahoo. In the event of such termination, DoveBid will not be
required to make any further payments to Yahoo (other than to
make any payments accrued and not paid (including revenue share
payments) through the date of termination).
6. Licenses; Display of DoveBid Content; Ownership
-----------------------------------------------
6.1 By DoveBid.
----------
(a) DoveBid Content.
---------------
DoveBid hereby grants to Yahoo a non-exclusive, worldwide,
royalty-free license to use, reproduce, distribute, display,
modify and transmit the DoveBid Content via the Internet and
third party networks (including, without limitation,
telephone and wireless networks) in connection with the
Yahoo B2B Site and other Yahoo Properties and to permit
users to download and print such DoveBid Content. Yahoo may
modify the DoveBid Content only to the extent necessary to
fit the format and look and feel of the Yahoo Properties
(which may include displaying a subset of DoveBid Content on
a Yahoo Property as "teaser content") but shall not modify
the content of any listings data. Yahoo shall be entitled to
sublicense the rights set forth in this Section 6.1 only (i)
to Affiliates only for inclusion in Yahoo Properties, and
(ii) in connection with distribution arrangements of a Yahoo
Property (e.g., a co-branded My Yahoo property).
(b) DoveBid Links. During the Term, DoveBid hereby
-------------
grants to Yahoo a non-exclusive, worldwide, royalty-
free license to use, reproduce, distribute, and display
the DoveBid Brand Features (1) to indicate the location
of the DoveBid Links as set forth herein and (2) in
connection with the marketing and promotion of DoveBid
in the Yahoo Properties; provided, in all cases, that
such use is in accordance with
*Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
9
DoveBid's then-current standard trademark usage
guidelines set forth in Exhibit K. Yahoo shall not
---------
modify the DoveBid Brand Features without DoveBid's
prior written approval. Yahoo hereby assigns to DoveBid
all right, title and interest in the DoveBid Brand
Features, together with the goodwill attaching thereto,
that may inure to it in connection with this Agreement
or from its use of the DoveBid Brand Features
hereunder.
6.2 By Yahoo. During the Term, Yahoo hereby grants to DoveBid a
--------
non-exclusive, worldwide, fully paid license to use, reproduce
and display the Yahoo Brand Features as described in Section 5.5
above; provided, in all cases, that such use is in accordance
with Yahoo's then-current standard trademark usage guidelines set
forth in Exhibit K. DoveBid shall not modify the Yahoo Brand
Features without Yahoo's prior written approval. DoveBid hereby
assigns to Yahoo all right, title and interest in the Yahoo Brand
Features, together with the goodwill attaching thereto, that may
inure to it in connection with this Agreement or from its use of
the Yahoo Brand Features hereunder.
6.3 Display of DoveBid Content. DoveBid shall provide a feed to
--------------------------
Yahoo of the DoveBid Content in accordance with the
specifications to be mutually agreed upon by the parties. Yahoo
will display the DoveBid Content on the Yahoo B2B Site in a
manner substantially similar to the example set forth on Exhibit
J. Notwithstanding the foregoing, Yahoo may, at any time and in
its sole discretion remove or not display any DoveBid Content (a)
for technical or service related issues, (b) if Yahoo reasonably
believes that the DoveBid Content violates any of Yahoo's
standards for acceptable listings (which for purposes of this
Agreement will be deemed to be the "Sellers Rules" for listings
on Yahoo Auctions currently located at
xxxx://xxxx.xxxxx.xxx/xxxx/xx/xxxx/xxxxx/xxxxx-00.xxxx), (c) is
reasonably believed by Yahoo to be, the subject of any claim or
lawsuit of any kind, including without limitation any claim or
allegation that any DoveBid Content violates, infringes, or
otherwise misappropriates the rights of any third party, or (d)
that Yahoo is requested or required to remove by any government
agency, order of a court or administrative body of competent
jurisdiction. Yahoo will use reasonable commercial efforts to
notify DoveBid in writing in the event that it exercises its
rights not to display or remove any DoveBid Content.
6.4 As between DoveBid and Yahoo, DoveBid will retain all right,
title and interest in and to the DoveBid Site and the DoveBid
Subsidiary Sites, and related DoveBid technology, the DoveBid
Content and DoveBid Brand Features including but not limited to
all intellectual property rights therein. As between Yahoo and
DoveBid, Yahoo will retain all right, title and interest in and
to the Yahoo Properties and related technology, and Yahoo Brand
Features, including but not limited to all intellectual property
rights therein.
*Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
10
7. Limited Exclusivity.
-------------------
7.1 During the Term, Yahoo will place no more than [*] Anchor Tenant
Modules promoting Business to Business Merchants on the front
Page of the Yahoo B2B Site. Yahoo reserves the right to divide
one of the Anchor Tenant Module positions on the front Page of
the Yahoo B2B Site among up to [*] other merchants. In addition,
in accordance with Section 2.3 hereof, Yahoo will place the
DoveBid Anchor Tenant Module on a non-exclusive basis on [*] of
the category and subcategory Pages of the Yahoo B2B Site.
7.2 DoveBid acknowledges and agrees that, except for the limited
exclusivity provision of Section 7.1, Yahoo may place any
advertising units for or otherwise promote any entity, including
but not limited to other Business to Business Merchants, on any
Page within the Yahoo Properties. Yahoo shall also not be
restricted in any manner from incorporating editorial content
from any entity, including but not limited to, other Business to
Business Merchants.
7.3 During the Term, Yahoo will not make an [*] in [*] or [*] or
place any banner advertisements or buttons on the Yahoo
Properties that are [*] with the Yahoo Brand Features and the
brand features of [*] or [*]. The foregoing restriction will not
apply to additional sites acquired by Yahoo and added to the
Yahoo Properties to the extent that such additional sites had a
preexisting [*] or co-branded banner or button relationship with
[*] or [*].
8. Page Views.
----------
8.1 Yahoo expressly acknowledges its obligation under this Agreement
to furnish DoveBid with advertising and other promotions valued
in the aggregate at [*] based on a discount of [*] off of Yahoo's
year 2000 advertising rate card. The parties acknowledge that
based on the amount of such consideration to be paid by DoveBid,
Yahoo will deliver a minimum of [*] Page Views with a preliminary
target distribution of such Page Views as set forth below (the
"Preliminary Targets"). Yahoo will use commercially reasonable
-------------------
efforts to deliver these Page Views as set forth below, but
Yahoo's Page View obligation is with respect to the program as a
whole. Yahoo will not be in breach of this Agreement for failure
to deliver the specific number of Page Views in any of the
following areas.
. [*] DoveBid Banner Pages
. [*] DoveBid Button Pages
. [*] DoveBid Email Messages
*Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
11
. [*] Page Views of Front Page Promotions
. [*] DoveBid Banner Advertisements placed on Run of Network
Notwithstanding the foregoing, Yahoo expressly acknowledges that it is the
intent and desire of the parties to mutually track the efficacy of the
advertising and promotions to be provided by Yahoo hereunder and to make
adjustments to the Preliminary Targets for the distribution and types of
promotions in a manner consistent with the parties' overall business goals
for this Agreement. Accordingly, DoveBid will have the right, once each
calendar month during the Term to request adjustments to the Preliminary
Targets; provided that all adjusted "Preliminary Targets" (a) will be
valued at [*] rates in [*] to the [*] available on [*]; (b) will not exceed
a total value of [*]; (c) will be placed subject to availability and
Yahoo's prior approval and on a schedule to be mutually agreed upon by the
parties; and (d) are subject to the "make good" provisions set forth in
Section 8.2 below.
8.2 In the event that Yahoo fails to deliver the number of Page Views
or emails set forth in Section 8.1 (as reduced by any proration
under Section 8.3) before the expiration of the Term, Yahoo will
"make good" the shortfall by extending its obligations under
Sections 2 and 3 in the areas set forth therein (or similar
inventory mutually agreed upon by the parties) beyond the end of
the Term until such Page View obligation is satisfied. Yahoo will
use commercially reasonable efforts to make good any undelivered
Page Views or emails within three months (but in any event will
"make good" the shortfall within six months) from the end of the
Term. The provisions of this Section 8.2 set forth the entire
liability of Yahoo, and DoveBid's sole remedy, for Yahoo's
failure to meet its Page View obligation set forth in Section
8.1.
8.3 In the event that DoveBid fails to (a) provide Yahoo, at least
[*] business day prior to the scheduled activation date of any
DoveBid Link with the DoveBid Deliverables necessary for Yahoo to
activate such DoveBid Link; or (b) design and operate the DoveBid
Site or a DoveBid Subsidiary Site in accordance with Section 5.6,
then (1) the number of Page Views set forth in Section 8.1 will
be prorated on a daily basis until DoveBid remedies such failure
(e.g., if Yahoo committed to deliver [*] Page Views over a one
(1) year period and DoveBid provided Yahoo with the DoveBid
Deliverables 15 days after the DoveBid Deliverables Due Date,
then Yahoo's Page View obligation would be reduced by [*] Page
Views) and (2) all payments made or due hereunder will be
converted to a non-refundable, non-creditable holding fee for
making the advertising inventory available to DoveBid.
8.4 Yahoo will provide DoveBid with access to an electronic database,
the accuracy of which is periodically reviewed and certified by
Ernst & Young, LLP or a similarly reputable and independent
entity, that describes Yahoo's calculation of the Page Views
delivered during the Term.
*Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
12
9. Compensation.
------------
9.1 Slotting Fee. In consideration of Yahoo's performance and
------------
obligations as set forth herein, DoveBid will pay to Yahoo a non-
refundable (except as expressly set forth in Section 10.3) non-
creditable slotting fee equal to [*]. DoveBid will pay such fee
to Yahoo on or before the dates set forth below, with the first
payment of [*] designated as a set up fee for the design,
consultation, development and implementation of the DoveBid
Links.
Payment Date
------- ----
[*] upon execution of the Agreement, which shall be designated
as a set-up fee for the design, consultation, development
and implementation of the DoveBid Links;
[*] on the Second Payment Date; and
[*] for three quarterly payments payable in 90 day intervals;
with the first payment due 90 days after the Second Payment
Date.
9.2 Revenue Share: In addition to the compensation described above,
--------------
DoveBid will, each calendar quarter during the Term, purchase an
additional amount of advertising in the form of Co-Branded
Banners or Co-Branded Buttons in an amount equal to [*] of the
Gross Commissions earned by DoveBid on all sales that originate
from users that click-through from any DoveBid Link. "Gross
Commissions" means the transaction fee amount that is collected
by DoveBid or a DoveBid Subsidiary on auction or retail sales on
the DoveBid Site or any DoveBid Subsidiary Site. If DoveBid owns
the asset, then "Gross Commissions" means the imputed transaction
fee that would have been collected by DoveBid if DoveBid had
charged its standard commission rate on the value of the asset
sold. Payments will be made quarterly by DoveBid to Yahoo within
[*] days following the last day of each calendar quarter. DoveBid
will provide to Yahoo quarterly reports certified by an officer
of DoveBid that describes in sufficient detail the number of
transactions completed, the gross revenue resulting from those
transactions, and the calculation of the Gross Commission. Yahoo
will provide Page Views of Co-Branded Buttons or Co-Branded
Banners in accordance with Yahoo's standard advertising rates in
effect at the time.
9.3 Audit Rights. DoveBid will maintain materially complete and
------------
accurate records in accordance with generally accepted methods of
accounting for revenue share transactions described in Section
9.2 above and will allow Yahoo, at its own expense, to direct an
independent certified public
*Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
13
accounting firm to inspect and audit such records during normal
business hours with written notice to DoveBid. Such inspections
and audits will be limited to one time in any twelve (12) month
period and all of DoveBid's records (and any other information
disclosed by DoveBid in connection with such audit) will be
deemed to be DoveBid Confidential Information, subject to the
terms and conditions of Section 11.3 hereof. In the event that
any audit reveals an underpayment of more than ten percent (10%),
DoveBid will pay the reasonable cost of such audit.
9.4 Payment Information. Except as otherwise expressly set forth
-------------------
in this Agreement, all payments herein are non-refundable and
non-creditable and will be made by DoveBid via wire transfer into
Yahoo's main account according to the wire transfer instructions
set forth in Exhibit F.
---------
9.5 Late Payments. Any portion of the above payments that has not
-------------
been paid to Yahoo on the dates set forth above will bear
interest at the greater of (a) 1% per month or (b) the maximum
amount allowed by law. Notwithstanding the foregoing, any failure
by DoveBid to make the payments specified in Sections 9.1 and 9.2
on the dates set forth therein constitutes a material breach of
this Agreement.
9.6 Warrant. DoveBid will issue to Yahoo a Warrant in the form
-------
attached hereto as Exhibit I on the Effective Date of this
---------
Agreement.
10. Term and Termination.
--------------------
10.1 Term. This Agreement will commence upon the Effective Date and,
----
unless terminated as provided herein, will remain in effect for
the Term.
10.2 Right of [*]. In the event that Yahoo, in its sole discretion,
------------
elects to [*] advertising and promotion program described in this
Agreement [*], Yahoo will provide written notice to DoveBid at
least [*] days [*] to the [*]. Yahoo will describe its reasonable
[*] for such [*] in its written notice to DoveBid. If DoveBid
declines to commence [*] with Yahoo regarding such [*] within [*]
days after receiving such written notice from Yahoo, or if the
parties fail to reach agreement within [*] days following the
commencement of [*], or such later date as is agreed by the
parties, Yahoo may [*] to [*]
10.3 Termination by DoveBid. If the Yahoo B2B Site does not launch
----------------------
by [*], then DoveBid will have the right to terminate the
Agreement with thirty (30) days written notice to Yahoo (unless
the Yahoo B2B Site launches within the thirty (30) day notice
period). In the event of such termination by DoveBid, DoveBid
will receive a pro-rata refund of the initial [*] payment less
the value of the advertising placed by Yahoo promoting the
DoveBid Site (or a DoveBid Subsidiary Site) delivered prior to
the date of termination. The value of the advertising will be
determined by Yahoo's
*Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
14
current advertising rate card. Upon the effective date of such a
termination by DoveBid, the Warrant described in Section 9.6 will
be cancelled if it has not already been exercised by Yahoo.
DoveBid agrees that except for the foregoing right to terminate
and obtain a pro-rata refund, Yahoo will not be liable for any
failure or delay to launch the Yahoo B2B Site. Notwithstanding
the foregoing, DoveBid will not have the right to terminate or
receive a pro-rata refund of any amounts paid if the Launch Date
is delayed by any failure of DoveBid including, without
limitation, any failure or delay in providing Yahoo with any of
the DoveBid Deliverables. In the event of any failure or delay on
the part of DoveBid, the Launch Date will be deemed to be the
date that the Yahoo B2B Site is otherwise functional and
available to the public.
In addition, in the event that the Launch Date does not occur by
[*] and DoveBid does not exercise its right to terminate the
Agreement as described in Section 10.3 above, then the parties
will discuss and mutually agree upon a revised compensation
schedule to include payment to Yahoo for the advertising
placements. If the parties cannot mutually agree upon a revised
compensation schedule, then Yahoo will have the right to
terminate the Agreement without further obligation or liability
to DoveBid.
10.4 Termination by Either Party with Cause. This Agreement may be
--------------------------------------
terminated at any time by either party (a) immediately upon
written notice if the other party (1) becomes insolvent; (2)
files a petition in bankruptcy; or (3) makes an assignment for
the benefit of its creditors; or (b) 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 (10 days
in the case of a failure to pay), which breach is not remedied
within such notice period.
10.5 Survival. The provisions of Sections 1, 6.4, 8.2, 11, 12, 13,
--------
15 and this 10.5 will survive expiration or termination of this
Agreement, except that DoveBid's payment obligations set forth in
Section 9 will not survive a proper termination of this Agreement
by DoveBid in accordance with Sections 10.3 or 10.4.
11. Confidential Information and Publicity.
--------------------------------------
11.1 Terms and Conditions. The terms and conditions of this
--------------------
Agreement will be considered confidential and will not be
disclosed to any third parties except to such party's
accountants, attorneys or except as otherwise required by law.
Neither party will make any public announcement regarding the
existence of this Agreement without the other party's prior
written approval and consent. If this Agreement or any of its
terms must be disclosed under any law, rule or regulation (e.g.,
as part of a filing with the United States Securities and
Exchange Commission), excluding an order or other discovery
request issued by a court of competent
*Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
15
jurisdiction, the disclosing party will (a) give written notice
of the intended disclosure to the other party at least 5 days in
advance of the date of disclosure; (b) redact portions of this
Agreement to the fullest extent permitted under any applicable
laws, rules and regulations; and (c) submit a request, to be
agreed upon by the other party, that such portions and other
provisions of this Agreement requested by the other party receive
confidential treatment under the laws, rules and regulations of
the body or tribunal to which disclosure is being made or
otherwise be held in the strictest confidence to the fullest
extent permitted under the laws, rules or regulations of any
other applicable governing body. Upon execution of this
Agreement, DoveBid will provide Yahoo with its proposed
redactions of this Agreement to be disclosed as part of its S-1
filing. Notwithstanding the provisions of subsection (a) above,
Yahoo will have 3 days prior to the date of the disclosure of the
S-1.
11.2 Publicity. Any and all publicity relating to this Agreement and
---------
subsequent transactions between Yahoo and DoveBid and the method
of its release will be approved in advance of the release, in
writing, by both Yahoo and DoveBid.
11.3 Nondisclosure Agreement. Yahoo and DoveBid acknowledge and
-----------------------
agree that the terms of the Mutual Nondisclosure Agreement
attached hereto as Exhibit H will be incorporated by reference
---------
and made a part of this Agreement, and will govern the use and
disclosure of confidential information and all discussions
pertaining to or leading to this Agreement.
11.4 User Data. All information and data provided to Yahoo by users
---------
of the Yahoo Properties or otherwise collected by Yahoo relating
to user activity on the Yahoo Properties will be retained by and
owned solely by Yahoo. All information and data provided to
DoveBid on the DoveBid Site or DoveBid Subsidiary Site otherwise
collected by DoveBid relating to user activity on the DoveBid
Site or DoveBid Subsidiary Site will be retained by and owned
solely by DoveBid. Each party agrees to use information and data
provided to it by a user only as disclosed to and authorized by
that user and will not disclose, sell, license or otherwise
transfer this information to any third party or use this
information for the transmission of "junk mail," "spam" or any
other unsolicited mass distribution of information.
11.5 Privacy of User Information. DoveBid will (a) ensure that all
---------------------------
information provided by users of the DoveBid Site is maintained,
accessed and transmitted in a secure environment and in
compliance with industry standard security specifications; and
(b) provide a link to its privacy policy regarding the protection
of user data on those Pages of the DoveBid Site where the user is
requested to provide personal or financial information. Further,
DoveBid represents and warrants that it has reviewed the FTC
Order and will not engage in any conduct that would cause Yahoo
to violate the FTC Order. DoveBid agrees to follow and comply
with all
*Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
16
reasonable instructions and directions of Yahoo to ensure Yahoo's
compliance with the FTC Order.
12. Indemnification.
---------------
12.1 By DoveBid. DoveBid, at its own expense, will indemnify,
----------
defend and hold harmless Yahoo and its employees,
representatives, agents and affiliates from and against any
claim, demand, action or other proceeding brought by any third
party against Yahoo to the extent that such claim, demand, action
or other proceeding is based on, or arises out of a claim that
any DoveBid Content, DoveBid Brand Feature, any material, product
or service produced, distributed, offered or sold by DoveBid, or
any material presented on the DoveBid Site or a DoveBid
Subsidiary Site (1) infringes in any manner any copyright,
patent, trademark, trade secret or any other intellectual
property right of any third party; (2) is or contains any
material or information that is obscene, defamatory, libelous,
slanderous or that violates any law or regulation; (3) violates
any rights of any person or entity, including but not limited to
rights of publicity, privacy or personality; (4) has resulted in
any consumer fraud, product liability, tort, breach of contract,
injury, damage or harm of any kind to any third party; or (5) is
subject to any fees, royalties, licenses or any other payments to
any third party; provided, however, that in any such case (A)
Yahoo provides DoveBid with prompt notice of any such claim; (B)
Yahoo permits DoveBid to assume and control the defense of such
action upon DoveBid's written notice to Yahoo of its intention to
indemnify; and (C) upon DoveBid's written request, and at no
expense to Yahoo, Yahoo will provide to DoveBid all available
information and assistance reasonably necessary for DoveBid to
defend such claim. DoveBid 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 will not unreasonably be withheld. DoveBid
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.
12.2 By Yahoo. Yahoo, at its own expense, will indemnify, defend and
--------
hold harmless DoveBid and its employees, representatives, agents
and affiliates from and against any claim, demand, action or
other proceeding brought by any third party against DoveBid to
the extent that such claim, demand, action or other proceeding is
based on, or arises out of, a claim that any Yahoo Brand Feature
(1) infringes in any manner any copyright, patent, trademark,
trade secret or any other intellectual property right of any
third party or (2) is subject to any fees, royalties, licenses or
any other payments to any third party; provided, however, that in
any such case (1) DoveBid provides Yahoo with prompt written
notice of any such claim; (2) DoveBid permits Yahoo to assume and
control the defense of such
*Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
17
action or proceeding upon Yahoo's written notice to DoveBid of
its intention to indemnify; and (3) upon Yahoo's written request,
and at no expense to DoveBid, DoveBid will provide Yahoo with all
available information and assistance reasonably necessary for
Yahoo to defend such claim. Yahoo will not enter into any
settlement or compromise of any such claim, which settlement or
compromise would result in any liability to DoveBid, without
DoveBid's prior written consent, which will not be unreasonably
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 DoveBid in connection
with or arising from any such claim, demand, action or other
proceeding.
13. Limitation of Liability.
-----------------------
EXCEPT AS PROVIDED IN SECTION 12, UNDER NO CIRCUMSTANCES WILL DOVEBID,
YAHOO OR ANY AFFILIATE OF EITHER PARTY BE LIABLE TO THE OTHER PARTY
FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES
ARISING FROM THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF
REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, EVEN IF THAT PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14. Insurance.
---------
14.1 General Commercial Liability. DoveBid will maintain insurance
----------------------------
during the Term with a carrier that is reasonably acceptable to
Yahoo and with coverage for commercial general liability and
errors and omissions of at least [*] dollars per occurrence.
DoveBid will name Yahoo as an additional insured on such
insurance and will provide evidence of such insurance to Yahoo
within 10 days after the Effective Date. Such insurance policy
will not be cancelled or modified in a manner inconsistent with
this provision without Yahoo's prior written consent. Yahoo will
maintain insurance during the Term with a carrier that is
reasonably acceptable to DoveBid and with coverage for commercial
general liability and errors and omissions of at least $1 million
dollars per occurrence.
15. General Provisions.
------------------
15.1 Independent Contractors. It is the intention of Yahoo and
-----------------------
DoveBid that Yahoo and DoveBid are, and will be deemed to be,
independent contractors with respect to the subject matter of
this Agreement, and nothing contained in this Agreement will be
deemed or construed in any manner whatsoever as creating any
partnership, joint venture, employment, agency, fiduciary or
other similar relationship between Yahoo and DoveBid.
*Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
18
15.2 Entire Agreement. This Agreement, together with all Exhibits
----------------
hereto, represents the entire agreement between Yahoo and DoveBid
with respect to the subject matter hereof and thereof and will
supersede all prior agreements and communications of the parties,
oral or written, including without limitation the Letter of
Intent executed on or about February 22, 2000 between Yahoo and
DoveBid.
15.3 Amendment and Waiver. No amendment to, or waiver of, any
--------------------
provision of this Agreement will be effective unless in writing
and signed by both parties. The waiver by any party of any breach
or default will not constitute a waiver of any different or
subsequent breach or default.
15.4 Governing Law. This Agreement will be governed by and
-------------
interpreted in accordance with the laws of the State of
California without regard to the conflicts of laws principles
thereof.
15.5 Successors and Assigns. Neither party will assign its rights or
----------------------
obligations under this Agreement without the prior written
consent of the other party, which will not unreasonably be
withheld or delayed. Notwithstanding the foregoing, either party
may assign this Agreement to an entity that acquires
substantially all of the stock or assets of a party to this
Agreement, except 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 will be binding upon and inure to the benefit
of the parties hereto and their respective permitted transferees,
successors and assigns.
15.6 Force Majeure. Neither party will be liable for failure to
-------------
perform or delay in performing any obligation (other than the
payment of money) under this Agreement if such failure or delay
is due to fire, flood, earthquake, strike, war (declared or
undeclared), embargo, blockade, legal prohibition, governmental
action, riot, insurrection, damage, destruction or any other
similar cause beyond the control of such party. If such event
continues for more than 30 days, the other party may terminate
this Agreement without further obligation.
15.7 Notices. All notices, requests and other communications called
-------
for by this agreement will 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:
Senior Director, Business Development (e-mail: sfigler@yahoo-
xxx.xxx), with a copy to its General Counsel (e-mail:
xxxxxx@xxxxx-xxx.xxx), and if to DoveBid at the physical or
electronic mail address set forth on the signature page of this
Agreement, or to such other addresses as either party specifies
to the other. Notice by any other
*Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
19
means will be deemed made when actually received by the party
to which notice is provided.
15.8 Severability. If any provision of this Agreement is held to be
------------
invalid, illegal or unenforceable for any reason, such
invalidity, illegality or unenforceability will not effect any
other provisions of this Agreement, and this Agreement will be
construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
15.9 Sole Responsibility. DoveBid will remain solely responsible
-------------------
for operation of the DoveBid Site, and Yahoo and its Affiliates
will remain solely responsible for the operation of the Yahoo
Properties. Each party (a) acknowledges that the DoveBid 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.
15.10 Counterparts. This Agreement may be executed in two
------------
counterparts, both of which taken together will constitute a
single instrument. Execution and delivery of this Agreement may
be evidenced by facsimile transmission.
15.11 Authority. Each of Yahoo and DoveBid represents and warrants
---------
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.
15.12 Attorneys Fees. The prevailing party in any action to
--------------
enforce this Agreement will be entitled to reimbursement of its
expenses, including reasonable attorneys' fees.
[Signature page follows]
20
This Advertising and Promotion Agreement has been executed by the duly
authorized representatives of the parties, effective as of the Effective Date.
YAHOO! INC. DOVEBID, INC.
By: __________________________________ By: __________________________________
Name: ________________________________ Name: ________________________________
Title: _______________________________ Title: _______________________________
Attn:
________________________________
________________________________
________________________________
Tel: _________________________________
Fax: _________________________________
email: _______________________________
*Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
21
EXHIBIT A
Anchor Tenant Module
[GRAPHIC APPEARS HERE]
*Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
EXHIBIT B
DoveBid Banner Category Pages
-----------------------------
[*]
DoveBid Button Category Pages
-----------------------------
[*]
*Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
EXHIBIT C
DoveBid Banner Keywords
-----------------------
[*]
*Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
EXHIBIT D
DoveBid Button Keywords
-----------------------
[*]
*Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
EXHIBIT E
Auction Module Category Pages
[*]
*Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
EXHIBIT F
Wire Transfer Instructions
Yahoo's Bank Information:
Institution Name: Imperial Bank
Institution Address: Inglewood, CA
ABA: 122 201 444
Beneficiary Name: Yahoo! Inc.
Beneficiary Account Number: [*]
*Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
EXHIBIT G
FTC DECISION AND ORDER
9823015
X000000
XXXXXX XXXXXX XX XXXXXXX
FEDERAL TRADE COMMISSION
COMMISSIONERS:
Xxxxxx Xxxxxxxx, Chairman
Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxx Xxxxxxx
In the Matter of
GEOCITIES, a corporation.
DOCKET NO. C-3850
DECISION AND ORDER
The Federal Trade Commission having initiated an investigation of certain acts
and practices of the respondent named in the caption hereof, and the respondent
having been furnished thereafter with a copy of a draft of complaint which the
Bureau of Consumer Protection proposed to present to the Commission for its
consideration and which, if issued by the Commission, would charge respondent
with violation of the Federal Trade Commission Act; and
The respondent, its attorneys, and counsel for Federal Trade Commission having
thereafter executed an agreement containing a consent order, an admission by the
respondent of all the jurisdictional facts set forth in the aforesaid draft of
complaint, a statement that the signing of said agreement is for settlement
purposes only and does not constitute an admission by respondent that the law
has been violated as alleged in such complaint, or that the facts as alleged in
such complaint, other than jurisdictional facts, are true and waivers and other
provisions as required by the Commission's Rules; and
The Commission having considered the matter and having determined that it had
reason to believe that the respondent has violated the said Act, and that
complaint should issue stating its charges in that respect, and having thereupon
accepted the executed consent agreement and placed such agreement on the public
record for a period of sixty (60) days, and having duly considered the comments
filed thereafter by interested persons pursuant to (S) 2.34 of its Rules, now in
further conformity with the procedure prescribed in (S) 2.34 of its Rules, the
Commission hereby issues its complaint, makes the following jurisdictional
findings and enters the following order:
1. Respondent GeoCities, is a corporation organized, existing, and doing
business under and by virtue of the laws of the State of California, with
its office or principal place of business located at 0000 Xxxx Xxxxxx,
Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxxxxx 00000.
2. The Federal Trade Commission has jurisdiction of the subject matter of
this proceeding and of the respondent, and the proceeding is in the
proceeding is in the public interest.
* Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
ORDER
DEFINITIONS
For purposes of this order, the following definitions shall apply:
1. "Child" or "children" shall mean a person of age twelve (12) or under.
2. "Parents" or "parental" shall mean a legal guardian, including, but not
limited to, a biological or adoptive parent.
3. "Personal identifying information" shall include, but is not limited to,
first and last name, home or other physical address (e.g., school), e-mail
address, telephone number, or any information that identifies a specific
individual, or any information which when tied to the above becomes
identifiable to a specific individual.
4. "Disclosure" or "disclosed to third party(ies)" shall mean (a) the
release of information in personally identifiable form to any other
individual, firm, or organization for any purpose or (b) making publicly
available such information by any means including, but not limited to,
public posting on or through home pages, pen pal services, e-mail services,
message boards, or chat rooms.
5. "Clear(ly) and prominent(ly)" shall mean in a type size and location
that are not obscured by any distracting elements and are sufficiently
noticeable for an ordinary consumer to read and comprehend, and in a
typeface that contrasts with the background against which it appears.
6. "Archived" database shall mean respondent's off-site "back-up" computer
tapes containing member profile information and GeoCities Web site
information.
7. "Electronically verifiable signature" shall mean a digital signature or
other electronic means that ensures a valid consent by requiring: (1)
authentication (guarantee that the message has come from the person who
claims to have sent it); (2) integrity (proof that the message contents
have not been altered, deliberately or accidentally, during transmission);
and (3) non-repudiation (certainty that the sender of the message cannot
later deny sending it).
8. "Express parental consent" shall mean a parent's affirmative agreement
that is obtained by any of the following means: (1) a signed statement
transmitted by postal mail or facsimile; (2) authorizing a charge to a
credit card via a secure server; (3) e-mail accompanied by an
electronically verifiable signature; (4) a procedure that is specifically
authorized by statute, regulation, or guideline issued by the Commission;
or (5) such other procedure that ensures verified parental consent and
ensures the identity of the parent, such as the use of a reliable
certifying authority.
9. Unless otherwise specified, "respondent" shall mean GeoCities, its
successors and assigns and its officers, agents, representatives, and
employees.
10. "Commerce" shall mean as defined in Section 4 of the Federal Trade
Commission Act, 15 U.S.C. (S) 44.
* Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
ii
I.
IT IS ORDERED that respondent, directly or through any corporation, subsidiary,
division, or other device, in connection with any online collection of personal
identifying information from consumers, in or affecting commerce, shall not make
any misrepresentation, in any manner, expressly or by implication, about its
collection or use of such information from or about consumers, including, but
not limited to, what information will be disclosed to third parties and how the
information will be used.
II.
IT IS FURTHER ORDERED that respondent, directly or through any corporation,
subsidiary, division, or other device, in connection with any online collection
of personal identifying information from consumers, in or affecting commerce,
shall not misrepresent, in any manner, expressly or by implication, the identity
of the party collecting any such information or the sponsorship of any activity
on its Web site.
III.
IT IS FURTHER ORDERED that respondent, directly or through any corporation,
subsidiary, division, or other device, in connection with the online collection
of personal identifying information from children, in or affecting commerce,
shall not collect personal identifying information from any child if respondent
has actual knowledge that such child does not have his or her parent's
permission to provide the information to respondent. Respondent shall not be
deemed to have actual knowledge if the child has falsely represented that (s)he
is not a child and respondent does not knowingly possess information that such
representation is false.
IV.
IT IS FURTHER ORDERED that respondent, directly or through any corporation,
subsidiary, division, or other device, in connection with the online collection
of personal identifying information, in or affecting commerce, shall provide
clear and prominent notice to consumers, including the parents of children, with
respect to respondent's practices with regard to its collection and use of
personal identifying information. Such notice shall include, but is not limited
to, disclosure of:
A. what information is being collected (e.g., "name," "home address," "e-
mail address," "age," "interests");
B. its intended use(s);
C. the third parties to whom it will be disclosed (e.g., "advertisers of
consumer products," mailing list companies," "the general public");
D. the consumer's ability to obtain access to or directly access such
information and the means by which (s)he may do so;
E. the consumer's ability to remove directly or have the information
removed from respondent's databases and the means by which (s)he may do so;
and
F. the procedures to delete personal identifying information from
respondent's databases and any limitations related to such deletion.
* Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
iii
Such notice shall appear on the home page of respondent's Web site(s) and
at each location on the site(s) at which such information is collected.
Provided that, respondent shall not be required to include the notice at the
--------------
locations at which information is collected if such information is limited to
tracking information and the collection of such information is described in the
notice required by this Part.
Provided further that, for purposes of this Part, compliance with all of the
---------------------
following shall be deemed adequate notice: (a) placement of a clear and
prominent hyperlink or button labeled PRIVACY NOTICE on the home page(s), which
directly links to the privacy notice screen(s); (b) placement of the information
required in this Part clearly and prominently on the privacy notice screen(s),
followed on the same screen(s) with a button that must be clicked on to make it
disappear; and (c) at each location on the site at which any personal
identifying information is collected, placement of a clear and prominent
hyperlink on the initial screen on which the collection takes place, which links
directly to the privacy notice and which is accompanied by the following
statement in bold typeface:
NOTICE: We collect personal information on this site. To learn more about how we
use your information click here.
V.
IT IS FURTHER ORDERED that respondent, directly or through any corporation,
subsidiary, division, or other device, in connection with the online collection
of personal identifying information from children, in or affecting commerce,
shall maintain a procedure by which it obtains express parental consent prior to
collecting and using such information.
Provided that, respondent may implement the following screening procedure that
-------------
shall be deemed to be in compliance with this Part. Respondent shall collect and
retain certain personal identifying information from a child, including birth
date and the child's and parent's e-mail addresses (hereafter "screening
information"), enabling respondent to identify the site visitor as a child and
to block the child's attempt to register with respondent without express
parental consent. If respondent elects to have the child register with it,
respondent shall: (1) give notice to the child to have his/her parent provide
express parental consent to register; and/or (2) send a notice to the parent's
e-mail address for the purpose of obtaining express parental consent. The notice
to the child or parent shall provide instructions for the parent to: (1) go to a
specific URL on the Web site to receive information on respondent's practices
regarding its collection and use of personal identifying information from
children and (2) provide express parental consent for the collection and use of
such information. Respondent's collection of screening information shall be by a
manner that discourages children from providing personal identifying information
in addition to the screening information. All personal identifying information
collected from a child shall be held by respondent in a secure manner and shall
not be used in any manner other than to effectuate the notice to the child or
parent, or to block the child from further attempts to register or otherwise
provide personal identifying information to respondent without express parental
consent. The personal identifying information collected shall not be disclosed
to any third party prior to the receipt of express parental consent. If express
parental consent is not received by twenty (20) days after respondent's
collection of the information from the child, respondent shall remove all such
personal identifying information from its databases, except such screening
information necessary to block the child from further attempts to register or
otherwise provide personal identifying information to respondent without express
parental consent.
* Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
iv
VI.
Nothing in this order shall prohibit respondent from collecting personal
identifying information from children or from using such information, as
specifically permitted in the Children's Online Privacy Protection Act of 1998
(without regard to the effective date of the Act) or as such Act may hereafter
be amended; regulations or guides promulgated by the Commission; or self-
regulatory guidelines approved by the Commission pursuant to the Act.
VII.
IT IS FURTHER ORDERED that respondent GeoCities, and its successors and assigns,
shall provide a reasonable means for consumers, including the parents of
children, to obtain removal of their or their children's personal identifying
information collected and retained by respondent and/or disclosed to third
parties, prior to the date of service of this order, as follows:
A. Respondent shall provide a clear and prominent notice to each consumer
over the age of twelve (12) from whom it collected personal identifying
information and disclosed that information to CMG Information Services,
Inc., describing such consumer's options as stated in Part VI.C and the
manner in which (s)he may exercise them.
B. Respondent shall provide a clear and prominent notice to the parent of
each child from whom it collected personal identifying information prior to
May 20, 1998, describing the parent's options as stated in Part VI.C and
the manner in which (s)he may exercise them.
C. Respondent shall provide the notice within thirty (30) days after the
date of service of this order by e-mail, postal mail, or facsimile. Notice
to the parent of a child may be to the e-mail address of the parent and, if
not known by respondent, to the e-mail address of the child. The notice
shall include the following information:
1. the information that was collected (e.g., "name," "home address,"
"e-mail address," "age," "interests"); its use(s) and/or intended
use(s); and the third parties to whom it was or will be disclosed
(e.g., "advertisers of consumer products," "mailing list companies,"
"the general public") and with respect to children, that the child's
personal identifying information may have been made public through
various means, such as by publicly posting on the child's personal
home page or disclosure by the child through the use of an e-mail
account;
2. the consumer's and childs parents right to obtain access to such
information and the means by which (s)he may do so;
3. the consumer's and childs parent's right to have the information
removed from respondent's or a third party's databases and the means
by which (s)he may do so;
4. a statement that childrens information will not be disclosed to
third parties, including public posting, without express parental
consent to the disclosure or public posting;
5. the means by which express parental consent may be communicated to
the respondent permitting disclosure to third parties of a child's
information; and
6. a statement that the failure of a consumer over the age of twelve
(12) to request removal of the information from respondent's databases
will be deemed as
* Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
v
approval to its continued retention and/or disclosure to third parties
by respondent.
D. Respondent shall provide to consumers, including the parents of
children, a reasonable and secure means to request access to or directly
access their or their childrens personal identifying information. Such
means may include direct access through password protected personal
profile, return e-mail bearing an electronically verifiable signature,
postal mail, or facsimile.
E. Respondent shall provide to consumers, including the parents of
children, a reasonable means to request removal of their or their childrens
personal identifying information from respondent's and/or the applicable
third party's databases or an assurance that such information has been
removed. Such means may include e-mail, postal mail, or facsimile.
F. The failure of a consumer over the age of twelve (12) to request the
actions specified above within twenty (20) days after his/her receipt of
the notice required in Part VI.A shall be deemed to be consent to the
information's continued retention and use by respondent and any third
party.
G. Respondent shall provide to the parent of a child a reasonable means to
communicate express parental consent to the retention and/or disclosure to
third parties of his/her child's personal identifying information.
Respondent shall not use any such information or disclose it to any third
party unless and until it receives express parental consent.
H. If, in response to the notice required in Part VI.A, respondent has
received a request by a consumer over the age of twelve (12) that
respondent should remove from its databases the consumer's personal
identifying information or has not received the express consent of a parent
of a child to the continued retention and/or disclosure to third parties of
a child's personal identifying information by respondent within twenty (20)
days after the parent's receipt of the notice required in Part VI.B,
respondent shall within ten (10) days:
1. Discontinue its retention and/or disclosure to third parties of
such information, including but not limited to (a) removing from its
databases all such information, (b) removing all personal home pages
created by the child, and (c) terminating all e-mail accounts for the
child; and
2. Contact all third parties to whom respondent has disclosed the
information, requesting that they discontinue using or disclosing that
information to other third parties, and remove the information from
their databases.
With respect to any consumer over the age of twelve (12) or any parent
of a child who has consented to respondent's continued retention and
use of personal identifying information pursuant to this Part, such
consumer's or parent's continuing right to obtain access to his/her or
a child's personal identifying information or removal of such
information from respondent's databases shall be as specified in the
notice required by Part IV of this order.
* Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
vi
I. Within thirty (30) days after the date of service of this order,
respondent shall obtain from a responsible official of each third party to
whom it has disclosed personal identifying information and from each
GeoCities Community Leader a statement stating that (s)he has been advised
of the terms of this order and of respondent's obligations under this Part,
and that (s)he agrees, upon notification from respondent, to discontinue
using or disclosing a consumer's or child's personal identifying
information to other third parties and to remove any such information from
its databases.
J. As may be permitted by law, respondent shall cease to do business with
any third party that fails within thirty (30) days of the date of service
of this order to provide the statement set forth in Part VI.I or whom
respondent knows or has reason to know has failed at any time to (a)
discontinue using or disclosing a child's personal identifying information
to other third parties, or (b) remove any such information from their
databases. With respect to any GeoCities Community Leader, the respondent
shall cease the Community Leader status of any person who fails to provide
the statement set forth in Part VI.I or whom respondent knows or has reason
to know has failed at any time to (a) discontinue using or disclosing a
child's personal identifying information to other third parties, or (b)
remove any such information from their databases.
For purposes of this Part: "third party(ies)" shall mean each GeoCities
--------------------------
Community Leader, CMG Information Services, Inc., Surplus Software, Inc.
(Surplus Direct/Egghead Computer), Sage Enterprises, Inc. (GeoPlanet/Planetall),
Netopia, Inc. (Netopia), and InfoBeat/Mercury Mail (InfoBeat).
VIII.
IT IS FURTHER ORDERED that for the purposes of this order, respondent shall not
be required to remove personal identifying information from its archived
database if such information is retained solely for the purposes of Web site
system maintenance, computer file back-up, to block a child's attempt to
register with or otherwise provide personal identifying information to
respondent without express parental consent, or to respond to requests for such
information from law enforcement agencies or pursuant to judicial process.
Except as necessary to respond to requests from law enforcement agencies or
pursuant to judicial process, respondent shall not disclose to any third party
any information retained in its archived database. In any notice required by
this order, respondent shall include information, clearly and prominently, about
its policies for retaining information in its archived database.
IX.
IT IS FURTHER ORDERED that for five (5) years after the date of this order,
respondent GeoCities, and its successors and assigns, shall place a clear and
prominent hyperlink within its privacy statement which states as follows in bold
typeface:
NOTICE: Click here for important information about safe surfing from the Federal
Trade Commission.
The hyperlink shall directly link to a hyperlink/URL to be provided to
respondent by the Commission. The Commission may change the hyperlink/URL upon
thirty (30) days prior written notice to respondent.
* Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
vii
X.
IT IS FURTHER ORDERED that respondent GeoCities, and its successors and assigns,
shall maintain and upon request make available to the Federal Trade Commission
for inspection and copying the following:
A. For five (5) years after the last date of dissemination of a notice
required by this order, a print or electronic copy in HTML format of all
documents relating to compliance with Parts IV through VIII of this order,
including, but not limited to, a sample copy of every information
collection form, Web page, screen, or document containing any
representation regarding respondent's information collection and use
practices, the notice required by Parts IV through VI, any communication to
third parties required by Part VI, and every Web page or screen linking to
the Federal Trade Commission Web site. Each Web page copy shall be
accompanied by the URL of the Web page where the material was posted
online. Electronic copies shall include all text and graphics files, audio
scripts, and other computer files used in presenting information on the
World Wide Web; and
Provided that, after creation of any Web page or screen in compliance with this
-------------
order, respondent shall not be required to retain a print or electronic copy of
any amended Web page or screen to the extent that the amendment does not affect
respondent's compliance obligations under this order.
B. For five (5) years after the last collection of personal identifying
information from a child, all materials evidencing the express parental
consent given to respondent.
XI.
IT IS FURTHER ORDERED that respondent GeoCities, and its successors and assigns,
shall deliver a copy of this order to all current and future principals,
officers, directors, and managers, and to all current and future employees,
agents, and representatives having responsibilities with respect to the subject
matter of this order. Respondent shall deliver this order to current personnel
within thirty (30) days after the date of service of this order, and to future
personnel within thirty (30) days after the person assumes such position or
responsibilities.
XII.
IT IS FURTHER ORDERED that respondent GeoCities, and its successors and assigns,
shall establish an "information practices training program" for any employee or
GeoCities Community Leader engaged in the collection or disclosure to third
parties of consumers' personal identifying information. The program shall
include training about respondent's privacy policies, information security
procedures, and disciplinary procedures for violations of its privacy policies.
Respondent shall provide each such current employee and GeoCities Community
Leader with information practices training materials within thirty (30) days
after the date of service of this order, and each such future employee or
GeoCities Community Leader such materials and training within thirty (30) days
after (s)he assumes his/her position or responsibilities.
XIII.
IT IS FURTHER ORDERED that respondent GeoCities, and its successors and assigns,
shall notify the Commission at least thirty (30) days prior to any change in the
corporation that may affect compliance obligations arising under this order,
including, but not limited to, a dissolution,
* Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
viii
assignment, sale, merger, or other action that would result in the emergence of
a successor corporation; the creation or dissolution of a subsidiary, parent, or
affiliate that engages in any acts or practices subject to this order; the
proposed filing of a bankruptcy petition; or a change in the corporate name or
address. Provided, however, that, with respect to any proposed change in the
-------- -------
corporation about which respondent learns less than thirty (30) days prior to
the date such action is to take place, respondent shall notify the Commission as
soon as is practicable after obtaining such knowledge. All notices required by
this Part shall be sent by certified mail to the Associate Director, Division of
Enforcement, Bureau of Consumer Protection, Xxxxxxx Xxxxx Xxxxxxxxxx,
Xxxxxxxxxx, X.X. 00000.
XIV.
IT IS FURTHER ORDERED that respondent GeoCities, and its successors and assigns,
shall, within sixty (60) days after service of this order, and at such other
times as the Federal Trade Commission may require, file with the Commission a
report, in writing, setting forth in detail the manner and form in which they
have complied with this order.
XV.
This order will terminate on February 5, 2019, or twenty (20) years from the
most recent date that the United States or the Federal Trade Commission files a
complaint (with or without an accompanying consent decree) in federal court
alleging any violation of the order, whichever comes later; provided, however,
-----------------
that the filing of such a complaint will not affect the duration of:
A. Any Part in this order that terminates in less than twenty (20) years;
B. This order's application to any respondent that is not named as a
defendant in such complaint; and
C. This order if such complaint is filed after the order has terminated
pursuant to this Part.
Provided, further, that if such complaint is dismissed or a federal court rules
-----------------
that the respondent did not violate any provision of the order, and the
dismissal or ruling is either not appealed or upheld on appeal, then the order
will terminate according to this Part as though the complaint had never been
filed, except that the order will not terminate between the date such complaint
is filed and the later of the deadline for appealing such dismissal or ruling
and the date such dismissal or ruling is upheld on appeal.
By the Commission.
Xxxxxx X. Xxxxx
Secretary
ISSUED: February 5, 1999
SEAL
* Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
ix
EXHIBIT H
MUTUAL NON-DISCLOSURE AGREEMENT
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, consultants,
advisors and investors 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
without use of any Confidential Information and by persons who have not had
access to any Confidential Information (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 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. 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.
6. 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.
* Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
7. 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.
8. 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 Section 4. 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.
* Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
ii
EXHIBIT I
Warrant
See Exhibit 10.04 DoveBid's Registration Statement on Form S-1.
* Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
EXHIBIT J - Sample Pages
DoveBid Content:
[LOGO]
C:\PROGRAM FILES\QUALCOMM\EUDORA MAIL\Attach\category.gifcategory.gif
----------------------------------------------------------------------
DoveBid Banner and DoveBid Button sample:
xxxx://xxx.xxxxx.xxx/Xxxxxxxx_xxx_Xxxxxxx/Xxxxx_Xxxxxxxx_Xxxxxxxxxxx/
* Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
EXHIBIT K
Trademark Guidelines
Trademark Guidelines
--------------------
Yahoo Trademark Guidelines:
--------------------------
1. General. All Yahoo Brand Features will be used only as explicitly
--------
licensed by Yahoo, and only under the terms and conditions and for the purposes
described in such license. The other party to such license shall herein be
referred to as the "Licensee". All such uses shall be in a manner consistent
with the following guidelines.
2. Appearance of Logos. The Licensee shall ensure that the presentation
--------------------
of the Yahoo Brand Features shall be consistent with Yahoo's own use of the
Yahoo Brand Features in comparable media.
3. Notices. All trademarks and service marks included in the Yahoo Brand
--------
Features shall be designated with "SM", "TM" or "(R)", in the manner directed by
Yahoo.
4. Appearance. From time to time during the term of the license, Yahoo
-----------
may provide the Licensee with guidelines for the size, typeface, colors and
other graphic characteristics of the Yahoo Brand Features, which upon delivery
to the Licensee shall be deemed to be incorporated into these "Yahoo Trademark
Usage Guidelines".
5. Restrictions Upon Use. The Yahoo Brand Features shall not be
----------------------
presented or used:
A. in a manner that could be reasonably interpreted to suggest
editorial content has been authored by, or represents the views or opinions of,
Yahoo or any Yahoo personnel;
B. in a manner that is misleading, defamatory, libelous, obscene or
otherwise objectionable, in Yahoo's reasonable opinion;
C. in a way that infringes, derogates, dilutes or impairs the rights
of Yahoo in the Yahoo Brand Features;
D. as part of a name of a product or service of a company other than
Yahoo, except as expressly provided in a written agreement by Yahoo.
6. Nonexclusive Remedy. The Licensee will make any changes to its use of
--------------------
the Yahoo Brand Features as requested by Yahoo. The foregoing remedy shall be
in addition to any other legal and equitable rights that Yahoo may possess
relating to Licensee's use of the Yahoo Brand Features.
7. Revisions. These Guidelines may be modified at any time by Yahoo upon
---------
written notice to the Licensee.
* Confidential portions have been omitted from this public filing and have been
filed separately with the Securities Exchange Commission.
