1
Exhibit 10.10
EXECUTION COPY
YAHOO! INC. - AMERICAN GREETINGS INC.
LICENSE AND PROMOTION AGREEMENT
This License and Promotion Agreement (this "Agreement") is entered into as of
August 2, 1999 (the "Effective Date") between Yahoo! Inc., a Delaware
corporation with offices at 0000 Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxx, XX 00000
("Yahoo") and xxxxxxxxxxxxxxxxx.xxx, inc., a Delaware corporation ("AG Parent")
and its wholly-owned subsidiary, xx.xxx, inc., a Delaware corporation ("AG Sub"
and collectively with AG Parent, "American Greetings"), both with offices at Xxx
Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxx, 00000).
WHEREAS, Yahoo is a global Internet media company that offers a network
of branded programming that serves millions of users daily; and
WHEREAS, American Greetings provides a variety of services relating to
greeting cards; and
WHEREAS, the parties wish to enter into this Agreement where, subject
to the terms contained herein, the parties will integrate their services and
conduct certain joint marketing activities.
NOW THEREFORE, in consideration of the mutual promises contained
herein, the parties agree as follows:
SECTION 1: DEFINITIONS.
-----------------------
Capitalized terms used in this Agreement shall have the meanings
attributed to them in Exhibit A hereto or elsewhere in the Agreement.
SECTION 2: LICENSES AND LIMITED EXCLUSIVITY.
--------------------------------------------
2.1. License to Yahoo.
-----------------
Subject to the terms and conditions of this Agreement, American
Greetings hereby grants to Yahoo, and Yahoo hereby accepts:
(a) A non-exclusive, worldwide, license, for the Term, to use, reproduce,
distribute, display and transmit the American Greetings Cards provided to Yahoo
hereunder in connection with the development and deployment of Yahoo Cards and
to permit Users to customize, send, view, download and print such American
Greetings Cards. Yahoo may modify features of the American Greetings Cards only
to the extent necessary to fit the format and look and feel of the Yahoo
Properties but shall not modify the content of any American Greetings Card.
(b) A non-exclusive, worldwide, fully paid license, for the Term, to use,
reproduce and display the American Greetings Brand Features only: (i) in
connection with the presentation of American Greetings Cards on Yahoo Cards; and
(ii) in connection with the marketing and promotion of the Yahoo Properties
provided that, in each case, American Greetings has approved any marketing and
promotional material and all other uses of the American Greetings Brand Features
prior to their first distribution, which approval shall not be unreasonably
withheld or delayed.
-1-
2
EXECUTION COPY
(c) Yahoo shall be entitled to sublicense the rights set forth in this Section
2.1 only (i) to its Affiliates only for inclusion in Yahoo Properties, and (ii)
in connection with any mirror site, derivative site, or arrangement for the
distribution of a Yahoo Property (e.g., a "My Yahoo" property distributed and
co-branded with an original equipment manufacturer).
2.2. License to American Greetings.
------------------------------
(a) Subject to the terms and conditions of this Agreement, Yahoo hereby grants
to American Greetings, and American Greetings hereby accepts, a non-exclusive,
worldwide, fully paid license, for the Term, to use, reproduce and display the
Yahoo Brand Features (including, but not limited to, the Yahoo Graphic Link)
only: (i) in connection with the link described in Section 3.2(c) below and (ii)
in connection with the marketing and promotion of Yahoo Cards, provided that in
each case Yahoo has approved any marketing and promotional material and all
other uses of the Yahoo Brand Features prior to their first distribution, which
approval shall not be unreasonably withheld or delayed.
(b) Yahoo hereby grants to American Greetings a fully paid, perpetual,
non-transferable, non-revocable license to use the American Greetings Card User
Data solely for American Greetings' own use and subject to American Greetings'
agreement that none of the American Greetings Card User Data, and any reports or
data or information containing the American Greetings Card User Data will be
sold, loaned, rented or otherwise transferred or made available or otherwise
disclosed or conveyed directly or indirectly to any third parties without the
express, prior written consent of Yahoo, and provided that, in all cases
American Greetings agrees to use such information only in accordance with the
terms of Sections 6.1, 10.3(d) and the then current Yahoo Privacy Policy.
2.3. Limited Exclusivity.
--------------------
(a) During the Term, within [ ], Yahoo
shall not [
]. For clarity, the parties expressly agree that nothing in this Section
2.3(a) shall preclude Yahoo from [
].
(b) During the Term, Yahoo shall not [
].
(c) During the Term, Yahoo shall not [
].
(d) During the Term, Yahoo shall not [
-2-
3
EXECUTION COPY
]
(e) Except as explicitly set forth in this Section 2.3, nothing in this
Agreement shall preclude Yahoo from [
]
SECTION 3: RESPONSIBILITIES OF THE PARTIES.
3.1. Yahoo's Responsibilities.
-------------------------
(a) Yahoo shall host and be solely responsible for the design, layout and
posting of Yahoo Cards; provided that, Yahoo agrees to: (i) consider input from
American Greetings concerning the design of Yahoo Cards, and (ii) to work in
good faith with American Greetings to design the American Greetings Content
Pages in a manner mutually agreeable to both parties, provided, however that the
design of the American Greetings Content Pages (and any material modifications
thereto) shall be subject to the approval of American Greetings prior to
deployment which approval shall not be unreasonably withheld or delayed.
Notwithstanding anything to the contrary in this Section 3.1(a), American
Greetings understands and agrees that Yahoo shall have the final determination
over the design, layout and posting of Yahoo Cards.
(b) During the Term, Yahoo shall include American Greetings Cards in Yahoo Cards
as follows:
(i) No fewer than [ ] of the Greetings [
] displayed on [ ] shall be
American Greetings Cards.
(ii) No fewer than [ ] of the Greetings [
] displayed on [
] shall be American Greetings Cards for any
category in which American Greetings supplies Yahoo with American Greetings
Cards. By way of example, and not in limitation of the foregoing, if upon a
User's request for birthday cards, Yahoo Cards displays [
] with [ ] birthday cards on each Page, no fewer than [ ] American
Greetings Cards shall appear on each such [ ]. In the event that the
[ ] does not display any American Greetings Cards, Yahoo's
obligations pursuant to this Section 3.1(b)(ii) shall [
] for any category in which American Greetings supplies
Yahoo with American Greetings Cards.
(iii) American Greetings Cards provided to Yahoo, other than those appearing on
[ ] and [ ] (or [
] as the case may be), will be distributed throughout
the remaining applicable [ ] (based
upon the number of American Greetings Cards relative to the number of other
Greetings to be displayed on such Pages) until all American Greetings cards have
been displayed for that category; provided, however, that Yahoo may modify such
distribution if, in its good faith judgment, the quality or selection of such
Greetings warrants such re-distribution in order to address the needs of Yahoo
Cards customers. In connection with any such re-distribution, Yahoo agrees to
use commercially reasonable efforts to communicate any such decision and the
reasons therefore to American Greetings as soon as
-3-
4
EXECUTION COPY
reasonably practicable. Additionally, at no time during the Term, shall Yahoo
[
] in the areas set forth therein.
(iv) Yahoo makes no guarantee as to the order or manner in which American
Greetings Cards shall appear on any Yahoo Cards Page. Notwithstanding the
foregoing, should Yahoo, in its sole discretion, determine to rotate which
Greetings are to appear on [ ] or [
] Yahoo shall rotate the American Greeting Cards appearing on such
Pages at the same rate as any other Greetings appearing on such Pages. If Yahoo,
in its sole discretion, determines to use a mechanism other than rotation to
determine the order or manner in which a particular Greeting appears on [
] or [ ] American Greetings Cards
shall be [
] as any Greetings provided by Yahoo or
any third party on [ ] and [ ]
It is expressly understood that nothing in this Section 3.1(b)(iv) shall in any
way reduce or waive Yahoo's obligations under Sections 3.1(b)(i) and 3.1(b)(ii)
above.
(v) All American Greetings Cards provided by American Greetings for use on Yahoo
Cards shall be displayed and otherwise made accessible in Yahoo Cards in
accordance with the provisions of this Section 3(b), in the category(ies)
specified by American Greetings. If Yahoo objects, in good faith, to any
category assigned to an American Greetings Card, the parties shall agree, in
good faith, upon the appropriate category for such American Greetings Card.
(vi) Notwithstanding anything else to the contrary in this Agreement, in no
event shall Yahoo be under any obligation, express or implied, to post or
otherwise include any American Greetings Card or other American Greetings
content in any Yahoo Property, including without limitation, in Yahoo Cards, if,
in good faith, Yahoo determines that such American Greetings Card or content (or
any portion thereof) is inappropriate for display based on a published terms of
service or published guideline applicable to such Yahoo Property. In addition,
in the event that Yahoo determines that any American Greetings Card or other
American Greetings content is inappropriate for display in any Yahoo Property,
including without limitation, in Yahoo Cards, based on a Yahoo Property's
content offerings, Yahoo and American Greetings shall agree on alternative
placements for such American Greetings Card or other American Greetings content,
or some other mutually acceptable resolution.
(vii) American Greetings may, upon written or email notice to Yahoo, request
that Yahoo remove any American Greetings Card(s) from display on Yahoo Cards and
Yahoo shall comply with any such request within [ ] from the
receipt thereof.
(c) Yahoo will maintain a link to Yahoo Cards on the Yahoo Properties set forth
below. The appearance and placement of such links shall be in Yahoo's sole
discretion.
(i) the compose screen of Yahoo Mail;
(ii) the navigation bar of Yahoo Mail;
(iii) Yahoo Calendar and the related reminder service;
-4-
5
EXECUTION COPY
(iv) Yahoo Messenger;
(v) Yahoo Address Book;
(vi) Yahoo Classifieds personal section;
(vii) Yahoo Clubs.
In addition, Yahoo will maintain a link to Yahoo Cards on the Yahoo Main
Site front Page for a minimum of [ ] during each year of the
Term. At Yahoo's sole discretion, Yahoo may provide links to Yahoo Cards
in other locations across the Yahoo Properties (e.g., Geocities, Yahoo
People Search, and Xxxxxxxxx.xxx).
(d) At all times during the Term, Yahoo shall place the American Greetings
Merchant Button on all American Greetings Button Pages. The American Greetings
Merchant Button's placement on any American Greetings Button Page may rotate
within an American Greetings Button Page Merchant Button Area equally with and
appear no less prominently (in terms of size and frequency of appearance in any
particular location within the Merchant Button Area) than any other Merchant
Button appearing on such American Greetings Button Page; provided, however, that
the American Greetings Merchant Button shall appear on each and every Page View
of the American Greetings Button Pages.
(e) During the Term, Yahoo shall provide the American Greetings Front Page
Promotion on the home Page of the Yahoo Main Site, on a rotating basis with
other promotions, on the dates specified on Exhibit J hereto (the "Front Page
Dates").
(f) At all times during the Term, Yahoo shall provide the American Greetings
Module on the front page of Yahoo Cards in a manner substantially similar to
that set forth on Exhibit D hereto.
(g) Yahoo shall ensure that all American Greetings Content Pages are co-branded
with Brand Features of both American Greetings and Yahoo as mutually agreed by
the parties, provided, however, that at all time the Brand Features of each
party shall be substantially similar in prominence (in terms of size and
placement) as set forth in Exhibit D. Additionally, Yahoo shall place an
"opt-in" option on the American Greetings Content Pages, subject to American
Greetings' approval, not to be unreasonably withheld, allowing users to choose
to receive promotional or other information from American Greetings. The parties
agree that Users that opt-in to receive such promotional or other information
from American Greetings may receive an e-mail from American Greetings that
contains a registration mechanism allowing Users to register as American
Greetings members and that American Greetings may independently collect certain
data pertaining to such Users through such registration mechanism and thereafter
(any such data being the "American Greetings Opt-In User Data").
(h) During the Term, Yahoo shall provide the American Greetings Banner, on a
rotating basis with other promotions, throughout Yahoo Cards and elsewhere
throughout the Yahoo Main Site (i.e., run of network) but in neither case on the
American Greetings Content Pages provided that it is technically feasible for
Yahoo to exclude such Pages after commercially reasonable efforts.
-5-
6
EXECUTION COPY
(i) Yahoo shall assist American Greetings in developing, and shall host during
the Term, the American Greetings Store [
]
3.2. American Greetings Responsibilities.
------------------------------------
(a) American Greetings shall provide Yahoo: (i) a wide selection of Greetings;
and (ii) not less than [ ] of those American Greeting Cards made
available free of charge through the American Greetings Site (modified, if
necessary, to accommodate Yahoo's format) for display on Yahoo Cards. American
Greetings shall update and refresh the inventory of American Greetings Cards
provided to Yahoo not less often than [ ] provided,
however, that if such inventory is not updated and refreshed on the American
Greetings Site during [ ], American Greetings will update and
refresh the Yahoo inventory of American Greetings Cards promptly following the
next update and refresh of the inventory on the American Greetings Site.
American Greetings shall deliver all American Greetings Cards and all updates to
Yahoo in accordance with the delivery specifications set forth in Exhibit C.
(b) American Greetings shall ensure that all Pages of the American Greetings
Site to which users click-through from any American Greetings Link comply with
the scale, speed and performance specifications mutually agreed upon by the
parties.
(c) American Greetings shall operate and maintain the American Greetings Site to
be one of the top [ ] sites for the on-line provision of Greetings (as
determined, to the extent practical, over a reasonable period of time, by an
independent, qualified and industry-recognized third party based on the quantity
and quality of customers and product offerings).
(d) In no event shall any Page on the American Greetings Site, when linked
directly from any Yahoo Property, contain [
] This
restriction shall not apply in the case of [
]
(e) American Greetings shall place the Yahoo Graphic Link on those Pages of the
American Greetings Site to which Users click-through from any American Greetings
Link. The Yahoo Graphic Link shall be placed on the American Greetings Site: (i)
in a form and manner mutually agreed on by the parties; and (ii) directly link
the User back to a Page on the Yahoo Properties designated by Yahoo.
(f) American Greetings shall create, maintain and operate the American Greetings
Store in accordance with Yahoo Store standard terms and conditions; provided,
however, that if American Greetings determines, in its reasonable discretion,
that the resources required to maintain the American Greetings Store are not
justified by the business conducted (or projected to be conducted) therein,
American Greetings may terminate the American Greetings Store upon [
] written notice to Yahoo. Nothing herein shall be deemed to require American
Greetings to make its full range of Greetings or other products available on the
American Greetings Store. Yahoo may modify its Yahoo Store standard terms and
conditions from time to time, at its discretion, provided that American
Greetings shall be given notice in the same manner as other Yahoo Store
merchants in order to comply with any such changes.
-6-
7
EXECUTION COPY
(g) American Greetings shall provide a link to American Greetings' privacy
policy on those Pages on the American Greetings Site through which User data is
collected.
3.3. Mutual Responsibilities.
------------------------
(a) Each party shall comply with the other party's trademark guidelines that are
attached as Exhibit K hereto.
(b) American Greetings will remain solely responsible for the operation of the
American Greetings Site, and Yahoo will remain solely responsible for the
operation of the Yahoo Properties. Each party, subject to the terms of this
Agreement, retains sole right and control over the programming, content and
conduct of transactions over its respective site.
(c) The parties each agree to cooperate and work together on technology related
issues, including but not limited to a implementing the ability of Users to use
their Yahoo address book to auto-populate a `send to' address on the American
Greetings Site linked from a Yahoo Property; or ensuring that American Greetings
products and services work seamlessly with Yahoo products (e.g., Yahoo Pager) in
accordance with applicable privacy and similar issues. Additionally, the parties
agree to explore methods by which users can be provided a seamless experience
when using American Greetings products that require a player or plug-in such as
"Flash" or "Real Player" (e.g., Xxxxxxxxx.xxx). Notwithstanding the foregoing,
each party understands that the other may, at its sole discretion, elect not to
implement any of the above initiatives.
SECTION 4: PAGE VIEWS.
----------------------
4.1. Merchant Button and Front Page Promotion.
-----------------------------------------
With respect to the American Greetings Merchant Button, American Greetings
Banner and American Greetings Front Page Promotion, Yahoo shall deliver a
minimum of [ ] Page Views (the "Program Page
View Obligation") which shall include a minimum of [ ]
Page Views of the American Greetings Front Page Promotion. Yahoo shall use
reasonable commercial efforts to deliver a minimum of [ ]
Page Views of the American Greetings Merchant Button and [
] Page Views of the American Greetings Banner throughout Yahoo Cards
(excluding the American Greetings Content Pages provided that it is technically
feasible for Yahoo to exclude such Pages after commercially reasonable efforts)
and [ ] Page Views of the American Greetings Banner
throughout the Yahoo Main Site (excluding the American Greetings Content Pages
provided that it is technically feasible for Yahoo to exclude such Pages after
commercially reasonable efforts); provided, however, that Yahoo's Page View
obligations are with respect to the Program Page View Obligation as a whole and
Yahoo shall not be in breach of this Agreement for failure to deliver the number
of American Greetings Merchant Button or American Greetings Banner Page Views
set forth above.
4.2. Yahoo Card Promotions.
----------------------
Yahoo shall deliver a minimum of [ ]
Page Views of the links referenced in Section 3(c)(i)-(ii).
-7-
8
EXECUTION COPY
4.3. Failure To Deliver Page Views.
------------------------------
The parties shall monitor, on an ongoing basis, the number of Page
Views delivered as against the total obligations set forth in Sections 4.1 and
4.2 (through the electronic database referenced in Section 4.4) and, after [
] the parties shall mutually agree,
in good faith, to any adjustments to the placement of promotions as may
reasonably be necessary to meet the Program Page View Obligations. In the event
that Yahoo fails to deliver the number of Page Views referred to in Sections 4.1
or 4.2 at the expiration of the Term, Yahoo will "make good" the shortfall by
extending its obligations under Sections 3.1(c)(i)-(ii), 3.1(d), 3.1(e) (for
additional front page promotion dates mutually agreed upon by the parties) and
3.1(h) in the areas of the Yahoo Main Site 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. The provisions set forth in this Section
4.3 set forth the entire liability of Yahoo, and American Greetings' sole
remedy, for Yahoo's breach of its Page View obligations set forth in this
Section 4.
4.4. Page View Database.
-------------------
Yahoo shall provide American Greetings: (i) real-time access to an
electronic database that tracks and compiles Yahoo's standard reporting
information concerning the number of Page Views delivered pursuant to Section
4.1 during applicable periods, and (ii) monthly written reports that track such
information concerning the number of Page Views delivered pursuant to Section
4.2.
SECTION 5: COMPENSATION.
------------------------
5.1. Slotting Fee.
-------------
In consideration of Yahoo's performance and obligations as set forth
herein, American Greetings shall pay to Yahoo a total slotting fee equal to
[ ]. Such fee shall be paid to Yahoo as set forth
below with [ ] of the first payment
designated as a set up fee for the design, consultation and development of the
American Greetings Links. Unless otherwise mutually agreed upon in writing,
American Greetings shall not be charged any fees, beyond those set forth in this
Agreement, for any Page Views delivered beyond the Program Page View Obligation.
-8-
9
EXECUTION COPY
Payment Date
------- ----
[ ] On or before [ ]
[ ] [ ] prior to the Launch Date as reasonably
projected by the parties (the "Launch Date Payment")
and
[ ]
On [
] (for a
total of [ ] payments, including the Launch
Date Payment). For example, if [ ] is
[ ], American Greetings shall pay Yahoo a
payment of [
]
5.2. Revenue Share.
--------------
In addition to the slotting fee set forth in Section 5.1 above,
beginning on [ ] American Greetings shall
pay to Yahoo a fee equal to [ ] of any American Greetings Net
Revenues in excess of [ ] earned during the
period between [
] Any such revenue sharing fees accrued pursuant to this Section 5.2
shall be paid [ ] together with the [ ] fee payment set forth in Section
5.1 and shall be due in [ ] following the [ ] in which
such revenues are earned.
5.3. Advertising Revenue.
--------------------
(a) Yahoo shall have the sole right, in its sole discretion, to sell, license or
otherwise dispose of all advertising and promotional rights with respect to the
Yahoo Properties (including Yahoo Cards and the American Greetings Content
Pages). Yahoo shall pay American Greetings [ ] [
] Yahoo Cards Content Page Advertising Revenue. For purposes of the
preceding sentence, the [ ] of Yahoo Cards Content Page Advertising
Revenue shall be [
] that encompasses such American Greetings
Content Pages. Thus, for example, if (x) Yahoo delivers [ ] Page Views
pursuant to a run of Yahoo Cards advertisement placement that generates [ ]
in Yahoo Cards Content Page Advertising Revenue, and (y) [ ] of such Page
Views are delivered on American Greetings Content Pages, then (z) American
Greetings shall be entitled to [ ] pursuant to this Section 5.3
[ ]. Yahoo shall use commercially reasonable
efforts to sell advertising on the American Greetings Content Pages but makes no
guarantee relating to the success of such efforts. Yahoo shall fill [
] of any unsold banner advertising space on the American Greetings
Content Pages with banner advertisements for American Greetings.
(b) American Greetings shall have the sole right to sell, license or otherwise
dispose of all advertising and promotional rights with respect to the American
Greetings Site and all other Page Views to American Greetings' servers.
-9-
10
EXECUTION COPY
5.4. Payment Information.
--------------------
(a) All payments herein due from American Greetings to Yahoo are non-refundable
and non-creditable and shall be paid by American Greetings in U.S. dollars via
wire transfer into Yahoo's main account pursuant to the wire transfer
instructions set forth on Exhibit E. Any portion of the above payments which has
not been paid as set forth above shall bear interest at the lesser of (i) [
] per month or (ii) the maximum amount allowed by law.
Notwithstanding the foregoing, any failure by American Greetings to materially
make the payments specified in Section 5.1 and 5.2 as set forth above, shall
constitute a material breach of this Agreement.
(b) All payments herein due from Yahoo to American Greetings shall be paid in
U.S. dollars via wire transfer into American Greetings main account pursuant to
the wire transfer instructions set forth on Exhibit E. Any portion of the above
payments which has not been paid as set forth above shall bear interest at the
lesser of (i) [ ] per month or (ii) the maximum amount allowed by
law. Notwithstanding the foregoing, any failure by Yahoo to materially make the
payments specified in Sections 5.3(a) as set forth above shall constitute a
material breach of this Agreement.
SECTION 6: REPRESENTATIONS AND WARRANTIES.
6.1. By American Greetings.
----------------------
(a) American Greetings represents and warrants that at all times during the Term
it shall have all licenses and approvals (or exemptions thereto) necessary to
fulfill its obligations under this Agreement and that the negotiation, entry and
performance 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 it is a party or any government order or decree to which it is subject.
(b) American Greetings represents and warrants that it is, and at all times
during the Term shall be, in compliance with any and all applicable laws, rules
and regulations of any jurisdiction now in effect and that may come into
existence during the Term, including all federal, state and local privacy laws,
rules and regulations, that may materially affect its performance of its
obligations hereunder.
(c) American Greetings represents and warrants that information provided to it
by or on behalf of Users shall be maintained, accessed and transmitted in a
secure environment and in compliance with industry standards for the security of
confidential data.
[
]
-10-
11
EXECUTION COPY
6.2. By Yahoo.
---------
(a) Yahoo represents and warrants that at all times during the Term, it shall
have all licenses and approvals (or exemptions thereto) necessary to fulfill its
obligations under this Agreement and that the negotiation, entry and performance
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 it is a
party or any government order or decree to which it is subject.
(b) Yahoo represents and warrants that it is, and at all times during the Term
shall be, in compliance with any and all applicable laws, rules and regulations
of any jurisdiction now in effect and that may come into existence during the
Term, including all federal, state and local privacy laws, rules and
regulations, that may materially affect its performance of its obligations
hereunder.
(c) Yahoo represents and warrants that information provided to it by Users shall
be maintained, accessed and transmitted in a secure environment and in
compliance with industry standards for the security of confidential data.
6.3. No Additional Warranties.
-------------------------
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES,
AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING
OR COURSE OF PERFORMANCE.
SECTION 7: INDEMNIFICATION.
---------------------------
7.1. By American Greetings.
----------------------
American Greetings, at its own expense, will indemnify, defend and hold
harmless Yahoo, its Affiliates and their employees, representatives, agents and
affiliates, against any claim, suit, action, or other proceeding brought by a
third party against Yahoo or its Affiliates based on or arising from a claim (a)
that [
] or (b) that [
] provided
however, that in any such case: (i)
-11-
12
EXECUTION COPY
Yahoo provides American Greetings with prompt notice of any such claim;
(ii)Yahoo permits American Greetings to assume and control the defense of such
action, with counsel chosen by American Greetings; (iii) Yahoo and its
Affiliates cooperate, at the expense of American Greetings, with American
Greetings and its counsel in the defense, and Yahoo will have the right to
participate fully, at its own expense, in the defense of any such action, and
(iv) American Greetings does not enter into any settlement or compromise of any
such claim which would include relief other than the payment of monetary damages
without Yahoo's prior written consent, which consent shall not be unreasonably
withheld. American Greetings 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 or its Affiliates in connection with or
arising from any such claim, suit, action or proceeding. It is understood and
agreed that Yahoo does not intend and will not be required to [
]
7.2. By Yahoo.
---------
Yahoo, at its own expense, will indemnify, defend and hold harmless
American Greetings, its Affiliates and their employees, representatives, agents
and affiliates, against any claim, suit, action, or other proceeding brought by
a third party against American Greetings or its Affiliates based on or arising
from a claim (a) that [
] or (b) that [
] provided however, that in any such case: (i)
American Greetings provides Yahoo with prompt notice of any such claim;
(ii)American Greetings permits Yahoo to assume and control the defense of such
action, with counsel chosen by Yahoo; (iii) American Greetings and its
Affiliates cooperate, at the expense of Yahoo, with Yahoo and its counsel in the
defense, and American Greetings will have the right to participate fully, at its
own expense, in the defense of any such action, and (iv) Yahoo does not enter
into any settlement or compromise of any such claim which would include relief
other than the payment of monetary damages without American Greetings' prior
written consent, which consent shall 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
American Greetings or its Affiliates in connection with or arising from any such
claim, suit, action or proceeding.
SECTION 8: LIMITATION OF LIABILITY.
-----------------------------------
8.1. Disclaimer of Liability.
------------------------
UNDER NO CIRCUMSTANCES SHALL AMERICAN GREETINGS, YAHOO, OR ANY
AFFILIATE OF EITHER PARTY BE LIABLE TO ANOTHER PARTY FOR
-12-
13
EXECUTION COPY
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM
THIS AGREEMENT, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR
LOST BUSINESS (COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY
WILL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE
CLAIMED BY A THIRD PARTY (OTHER THAN AN AFFILIATE) AND ARE SUBJECT TO
INDEMNIFICATION PURSUANT TO SECTION 7.
8.2. Limitation of Liability.
------------------------
EXCEPT AS PROVIDED IN SECTION 7 OR WITH RESPECT TO ANY CLAIMS ARISING
FROM THE RIGHTS OR OBLIGATIONS SET FORTH IN SECTIONS 6 OR 10, THE MAXIMUM
LIABILITY OF ONE PARTY TO THE OTHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION
WITH THIS AGREEMENT WILL NOT EXCEED [
]
SECTION 9: TERM AND TERMINATION.
--------------------------------
9.1. Term.
-----
The term of this Agreement shall begin on the Effective Date and,
unless sooner terminated as provided below or as otherwise agreed, continue
until the second anniversary of the Launch Date (the "Term").
9.2. Termination by Yahoo.
---------------------
[
]
9.3. Termination by American Greetings; Reallocation of Payments.
------------------------------------------------------------
[
]
-13-
14
EXECUTION COPY
acquisition described in this Section 9.3 within five (5) business days of the
completion of such acquisition.
(b) If, as of [ ] Yahoo has delivered less
than [ ] Page Views of the Yahoo Card Pages, the
parties shall negotiate in good faith a re-allocation of the American Greetings'
promotions to which all or a portion of the fees yet to be paid by American
Greetings to Yahoo hereunder apply. Such re-allocation could involve American
Greetings receiving additional banner or other advertisements on the Yahoo
Properties (subject, in all cases, to inventory availability). Notwithstanding
anything to the contrary in this Section 9.3(b), under no circumstances shall
American Greetings be released from making the payments due to Yahoo under
Section 5 (including in the event that the parties are unable to reach agreement
on any re-allocation of American Greetings' promotions pursuant to this Section
9.3(b)).
9.4. Termination by Either Party with Cause.
---------------------------------------
This Agreement may be terminated by either party immediately upon
notice to the other if the other party: (i) ceases to do business in the normal
course, becomes or is declared insolvent or bankrupt, becomes the subject of any
proceeding related to its liquidation or insolvency (whether voluntary or
involuntary) which is not dismissed within [ ] or makes
an assignment for the benefit of creditors; or (ii) breaches any of its
obligations under this Agreement in any material respect, which breach is not
remedied within [ ] following written notice to such party [
] in the case of a failure to pay). If, during the Term, Yahoo has
provided three (3) notices of termination under clause (ii) above due to a
failure to pay, Yahoo shall have the right to [
]
9.5. Right of First Presentation to Renew.
-------------------------------------
At least [ ] prior to the end of the Term, in the event
that Yahoo, at its sole discretion, intends to extend this Greeting Cards
Merchant Program, Yahoo will deliver to American Greetings a written notice
describing Yahoo's reasonable business requirements with respect to such
opportunity. If American Greetings declines to commence good faith negotiations
within [ ] of receiving such written notice from Yahoo, or if the
parties fail to reach agreement within [ ] following the commencement
of good faith negotiations (or such later date as is agreed by the parties),
Yahoo may [
] The parties
acknowledge that the promotional opportunities and terms offered in any
extension of this Greeting Cards Merchant Program may differ substantially from
those contained in this Agreement. Further, under no circumstances shall
anything in this Section 9.5 be deemed to restrict Yahoo's ability to extend
merchant positions in a subsequent Greeting Cards Merchant Program to any third
parties.
-14-
15
EXECUTION COPY
9.6. Right of First Presentation for Related Initiatives.
----------------------------------------------------
In the event that Yahoo intends at any time during the Term to [
] Yahoo will deliver to American Greetings a written notice describing
Yahoo's reasonable business requirements with respect to such opportunity. If
American Greetings declines to commence good faith negotiations within [
] of receiving such written notice from Yahoo, or if the parties fail to
reach agreement within [ ] following the commencement of good faith
negotiations (or such later date as is agreed by the parties), Yahoo may [
] American Greetings
acknowledges that the foregoing applies only to [
]
9.7. Survival.
---------
Sections 1, 2.2(b), 4.3, 6.1(c) & (d), 7, 8, 10, 11, 12 and this
Section 9.7 shall survive the expiration or termination of this Agreement;
provided that, for the purpose of this Section 9.7, American Greetings'
obligation to abide by Yahoo's "then current" Privacy Policy set forth in
Section 2.2(b) shall not survive the expiration or termination of this Agreement
(i.e., upon expiration or termination of this Agreement and thereafter, American
Greetings shall adhere to the form of Yahoo's Privacy Policy in effect as of the
date of this Agreement's expiration).
SECTION 10: OWNERSHIP.
----------------------
10.1. By American Greetings.
----------------------
Yahoo and its Affiliates acknowledge and agree that: (i) as between
American Greetings on the one hand, and Yahoo and its Affiliates on the other,
American Greetings owns all right, title and interest in the American Greetings
Cards, the American Greetings Brand Features, and the American Greetings Site;
(ii) nothing in this Agreement shall confer in Yahoo or any Yahoo Affiliate any
right of ownership in the American Greetings Cards, the American Greetings Brand
Features, and the American Greetings Site; and (iii) neither Yahoo nor its
Affiliates shall now or in the future contest the validity of the foregoing.
10.2. By Yahoo.
---------
American Greetings and its Affiliates acknowledge and agree that: (i)
as between American Greetings and its Affiliates on the one hand, and Yahoo and
its Affiliates on the other, Yahoo or its Affiliates own all right, title and
interest in Yahoo Cards and any other Yahoo Property and the Yahoo Brand
Features; (ii) nothing in this Agreement shall confer in American Greetings any
right of ownership in the Yahoo Brand Features; and (iii) American Greetings
shall not now or in the future contest the validity of the foregoing.
-15-
16
EXECUTION COPY
10.3. Data Ownership and Use.
-----------------------
(a) All information and data provided to Yahoo by Users (including the American
Greetings Card User Data) or otherwise collected by Yahoo relating to User
activity on the Yahoo Properties (including on Yahoo Cards) shall [
]
(b) During the Term, Yahoo shall collect the American Greeting Cards User Data
and provide the American Greetings Card User Data to American Greetings.
American Greetings agrees to [ ] only in
accordance with Section 2.2(b), Section 6.1 and this Section 10.3.
(c) The American Greetings Front Page Promotion Data and all information and
data provided to American Greetings on the American Greetings Site or otherwise
collected by American Greetings relating to user activity on the American
Greetings Site (including the American Greetings Opt-In User Data), shall be
[ ] During the Term, American
Greetings agrees to [
]
(d) Each party agrees to use all User information and data (including the
American Greetings Card User Data, American Greetings Front Page Promotion Data
and American Greetings Opt-In User Data) only as authorized by the User that
provided such information and shall not disclose, sell, license or otherwise
transfer any such user information to any third party or use the user
information for the transmission of "junk mail," "spam," or any other
unsolicited mass distribution of information.
(e) If any User requests, or if Yahoo requests on behalf of any User, that
American Greetings remove all personally identifiable information relating to
such User from American Greetings' database and other records, then American
Greetings shall promptly remove such personally identifiable information from
its database and other records.
SECTION 11: PUBLIC ANNOUNCEMENTS; CONFIDENTIALITY.
--------------------------------------------------
11.1. Public Announcements.
---------------------
The parties will cooperate to create any and all appropriate public
announcements relating to the relationship set forth in this Agreement. Neither
party shall make any public announcement regarding the existence or content of
this Agreement without the other party's prior written approval and consent.
11.2. Confidentiality.
----------------
Yahoo and American Greetings acknowledge and agree to the Mutual
Nondisclosure Agreement Terms attached hereto as Exhibit F with respect to the
use and disclosure of confidential information and all discussions pertaining to
or leading to this Agreement.
-16-
17
EXECUTION COPY
SECTION 12: NOTICE; MISCELLANEOUS PROVISIONS.
---------------------------------------------
12.1. Notices.
--------
All notices, requests and other communications called for by this
Agreement shall be in writing and deemed to have been given upon receipt by the
addressee to which notice is provided. Any such notices, requests and other
communications may be given by mail, courier, telecopy or electronic mail
(confirmed by concurrent written notice sent first class U.S. mail, postage
prepaid), if to Yahoo at 0000 Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxx, XX 00000, Fax:
[ ] Attention: Vice President ([ ]), with a
copy to its General Counsel ([ ]), and if to American
Greetings at the physical or electronic mail addresses set forth on the
signature page of this Agreement, or to such other addresses as either party
shall specify to the other.
12.2. Subcontracting.
---------------
Either party may subcontract or delegate the performance of any or all of its
duties and obligations hereunder to any Affiliate of such party (i) with the
other party's prior written approval, which shall not be unreasonably withheld
and (ii) provided that in the event of any such subcontracting or delegation,
the subcontracting or delegating party remains liable hereunder. Yahoo hereby
consents to American Greetings' subcontracting or delegating any or all of its
duties hereunder to the following American Greetings' Affiliates: AGCM, Inc.,
American Greetings Corporation and AGC, Inc.; provided that, in all cases,
American Greetings shall remain liable for such entities' compliance with the
terms of this Agreement.
12.3. Miscellaneous Provisions.
-------------------------
(a) This Agreement will bind and inure to the benefit of each party's permitted
successors and assigns. Neither party may assign this Agreement, in whole or in
part, without the other party's written consent; provided, however, that either
party may assign this Agreement without such consent in connection with any
merger, consolidation, any sale of all or substantially all of such party's
assets or any other transaction in which more than fifty percent (50%) of such
party's voting securities are transferred. Any attempt to assign this Agreement
other than in accordance with this provision shall be null and void.
(b) This Agreement will be governed by and construed in accordance with the laws
of the State of California, without reference to conflicts of laws rules, and
without regard to its location of execution or performance.
(c) If any provision of this Agreement is found invalid or unenforceable, that
provision will be enforced to the maximum extent permissible and the other
provisions of this Agreement will remain in force.
(d) The prevailing party in any action to enforce this Agreement shall be
entitled to reimbursement of its expenses, including reasonable attorneys' fees.
(e) Neither this Agreement, nor any terms and conditions contained herein may be
construed as creating or constituting a partnership, joint venture or agency
relationship between the parties.
-17-
18
EXECUTION COPY
(f) No failure of either party to exercise or enforce any of its rights under
this Agreement will act as a waiver of such rights.
(g) Neither Party will be liable for, or be considered in breach of or default
under this Agreement on account of, any delay or failure to perform as required
by this Agreement as a result of any causes or conditions which are beyond such
Party's reasonable control (except payment of money) and which such Party is
unable to overcome by the exercise of reasonable diligence.
(h) This Agreement and its exhibits are the
complete and exclusive agreement between the parties with respect to the subject
matter hereof, superseding and replacing any and all prior agreements,
communications, and understandings, both written and oral, regarding such
subject matter, including the Letter of Agreement between the parties dated June
2, 1999. This Agreement may only be modified, or any rights under it waived, by
a written document executed by both parties.
(i) No third party beneficiaries are created or established by this Agreement.
(j) Except as otherwise specifically provided for herein, each party shall bear
its own expenses for the negotiation of and the performance of this Agreement.
(k) The captions and headings used in this Agreement are inserted for
convenience only and will not affect the meaning or interpretation of this
Agreement. References to numbered sections and lettered Exhibits refer to the
sections and exhibits of this Agreement unless otherwise specified.
(l) This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute a single instrument. Execution and delivery of
this Agreement may be evidenced by facsimile transmission.
[signature page follows]
-18-
19
EXECUTION COPY
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the Effective Date.
YAHOO! INC. xxxxxxxxxxxxxxxxx.xxx, inc.
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxx Xxxxxxxxxx
---------------------------- ---------------------------------------------------------
Title: /s/ Vice President Title: Senior Vice President, Sales and Business Development
------------------------- ------------------------------------------------------
Address: Address:
----------------------- ----------------------------------------------------
----------------------- ----------------------------------------------------
Telecopy: Telecopy:
---------------------- ---------------------------------------------------
E-mail: E-mail:
------------------------ -----------------------------------------------------
xx.xxx, inc.
By: /s/ Xxxxx Xxxxxxxxxx
---------------------------------------------------------
Title: Senior Vice President, Sales and Business Development
------------------------------------------------------
Address:
----------------------------------------------------
----------------------------------------------------
Telecopy:
---------------------------------------------------
E-mail:
-----------------------------------------------------
-19-
20
EXECUTION COPY
EXHIBIT A
DEFINITIONS
-----------
"Affiliate" shall mean, as to any entity, any company or other entity
world-wide, including, without limitation, any corporation, partnership, joint
venture, or limited liability company, that is controlled by, controlling or
under common control with such first entity, where control means the ownership
of 50% or more of the voting equity interest in such entity.
"American Greetings Button Pages" shall mean the American Greetings
Directory Pages and the American Greetings Search Results Pages.
"American Greetings Cards" shall mean Greetings produced by or for
American Greetings and shall include any "thumbnail" images of such Greetings.
"American Greetings Cards User Data" shall mean all information and
data collected by Yahoo, including but not limited to sender and receiver email
addresses, solely in connection with Users' viewing, personalizing, sending,
receiving, downloading or purchasing American Greetings Cards, or other American
Greetings products or services; provided that American Greetings Card User Data
shall specifically exclude the American Greetings Front Page Promotion Data and
the American Greetings Opt-In User Data.
"American Greetings Competitor" shall mean the written list of entities
set forth on Exhibit G hereto and any successors to any such entities.
"American Greetings Content Pages" shall mean those Pages in Yahoo
Cards, substantially similar in structure to that set forth in Exhibit D,
through which a User may construct, preview and receive a specific American
Greetings Card.
"American Greetings Directory Pages" shall mean those Pages within the
subject matter directory of any Yahoo Property for the subjects and hierarchy
identified on Exhibit I.
"American Greetings Front Page Promotion" shall mean a promotion
substantially similar in structure to that set forth in Exhibit D, developed by
American Greetings in accordance with Yahoo's standard front-page promotion
guidelines attached as Exhibit H. Yahoo may modify its standard front-page
promotion guidelines at any time, provided that American Greetings shall be
given reasonable notice in order to modify the American Greetings Front Page
Promotion to comply with any such changes.
"American Greetings Front Page Promotion Data" shall mean the data
collected by American Greetings through the American Greetings Front Page
Promotion.
"American Greetings Link" shall mean any link to the American Greetings
Site placed by Yahoo under this Agreement, including, without limitation, the
American Greetings Banner, American Greetings Merchant Button (and accompanying
text links), American Greetings Module and the American Greetings Front Page
Promotion.
-20-
21
EXECUTION COPY
"American Greetings Banner" shall mean a promotion substantially
similar in structure as that set forth on Exhibit D that conforms to Yahoo's
standard banner specifications as follows: (a) promotes the on-line sale of
greeting cards, (b) has dimensions no larger than 468 pixels wide by 60 pixels
high, (c) does not have "looped" animation, (d) does not have any animation
longer than six seconds, (e) has a file size of no greater than 15K, and (f)
will permit users to navigate directly to a Page on the American Greetings Site
relating to the American Greetings Banner content. Yahoo may modify these
standard banner specifications at any time provided that American Greetings
shall be given reasonable notice in order to modify the American Greetings
Banner to comply with any such changes.
"American Greetings Merchant Button" shall mean a link substantially
similar in structure to that set forth in Exhibit D, that conforms to Yahoo's
standard Merchant Button specifications as follows: (a) contains an American
Greetings logo and has dimensions no larger than 88 pixels wide by 31 pixels
high, (b) does not contain animation, (c) has a file size of no greater than 2K,
(d) contains alt text of no more than ten (10) characters (including spaces),
(e) contains three (3) text links of no more than sixteen (16) characters each
(including spaces), (f) and will permit users to navigate directly to a Page on
the American Greetings Site related to buying or sending greeting cards. Yahoo
may modify these standard Merchant Button specifications at any time, provided
that American Greetings shall be given reasonable notice in order to modify the
American Greetings Merchant Button to comply with any such changes.
"American Greetings Module" shall mean a promotion substantially
similar in structure to that set forth in Exhibit D, that conforms to Yahoo's
standard module specifications as follows: (a) has dimensions no larger than 125
pixels wide by 125 pixels high, (b) contains two lines of text, with no more
than twenty (20) characters of text (including spaces) in each line, (c)
contains no more than six (6) seconds of animation (with no looping), (d) is in
GIF format, (e) has a file size no greater than 4K, and (f) will permit users to
navigate directly to a Page on the American Greetings Site relating to the
online purchase of greeting cards. Yahoo may modify these standard Module
specifications at any time, provided that American Greetings shall be given
reasonable notice in order to modify the American Greetings Module to comply
with any such changes.
"American Greetings Net Revenues" shall mean [
]
"American Greetings Opt-In User Data" shall have the meaning ascribed
to such term in Section 3.1(g).
"American Greetings Search Results Pages" shall mean those Pages
displayed upon a user's searching the Yahoo Main Site for any of those keywords
identified on Exhibit I; provided that, Yahoo may substitute any such keyword
for a comparable keyword in its reasonable discretion and upon written approval
of American Greetings, which approval shall not be unreasonably withheld.
-21-
22
EXECUTION COPY
"American Greetings Site" shall mean the American Greetings principal
U.S. based World Wide Web site located at xxxx://xxx.xxxxxxxxxxxxxxxxx.xxx or
any successor URL.
"American Greetings Store" shall mean an online store created with
Yahoo Store technology on behalf of American Greetings and located in the Yahoo
Store.
"Brand Features" shall mean the trademarks, service marks, logos and
other distinctive brand features of the parties that are described in Exhibit B
hereto.
"FTC Order" will mean that certain "Decision and Consent Order" issued
by the U.S. Federal Trade Commission on February 5, 1999 against Geocities,
Inc., a California corporation acquired by Yahoo, attached hereto as Exhibit L
and any and all subsequent or related official materials, regulations, laws
judgements or orders.
"Greeting" means a communication consisting of elements (including,
but not limited to, images, text, photography, audio or animation) that are
pre-designed by the producer and elements that are user customizable or
selectable (including, but not limited to, messages, signatures, addresses,
images or audio) and marketed to consumers and businesses for delivery in
connection with an occasion (such as birthday, wedding, graduation, anniversary
or holiday), thank you wishes, get well wishes, invitations, and other social
expressions traditionally recognized as greetings. "Greetings" shall include
electronic Greetings (including, but not limited to, customizable greeting
cards, postcards and multimedia Greetings), and traditional tangible paper (or
similar media) Greetings (whether pre-printed, downloaded or printed using
"create-and-print" systems).
"Greeting Cards Merchant Program" shall mean Yahoo's program consisting
of certain marketing, advertising and promotional activities relating to the
online sale of Greetings as described in this Agreement.
"Intellectual Property Rights" shall mean all rights in and to trade
secrets, patents, copyrights, trademarks, know-how, as well as moral rights and
similar rights of any type under the laws of any governmental authority,
domestic or foreign.
"Internet" shall mean the collection of computer networks commonly
known as the Internet, and shall include, without limitation, the World Wide
Web.
"Launch Date" shall mean [
]
"Merchant Button" shall mean a link to a merchant's World Wide Web site
that substantially conforms to the specifications of the American Greetings
Merchant Button.
"Merchant Button Area" shall mean the area of any Page of any Yahoo
Property in which Merchant Buttons are displayed. Such area may involve buttons
appearing vertically or horizontally.
-22-
23
EXECUTION COPY
"Page" means any World Wide Web page (or, for on-line media other than
Web sites, the equivalent unit of the relevant protocol).
"Page View" shall mean a User's request for a Page on which the
applicable advertisement or link appears, as such request is determined and
measured by Yahoo in accordance with its standard methodologies and protocols
that are regularly audited and reviewed by Ernst & Young or a similarly
reputable entity.
"User" shall mean any person or entity who uses any Yahoo Property. A
person or entity shall not be considered a "User" as a result of or in
connection with their use of a Yahoo Property other than as an end-user thereof.
For example, use of a Yahoo Property by Yahoo personnel (or personnel of any
Yahoo advertiser or Affiliate) for programming, development, testing and other
administrative functions shall not result in such personnel being considered
Users.
"Yahoo Cards" shall mean the U.S. targeted Yahoo Property that will
allow Users to, among other things, create, send, and view electronic Greetings
and/or purchase Greetings. Yahoo shall have the right to change the name and
content (but not the underlying line of business) of Yahoo Cards from time to
time in its sole discretion.
"Yahoo Cards Category Pages" shall mean those Pages in Yahoo Cards that
are displayed in response to a user's request for a particular type of greeting
card (e.g., birthday, get well, anniversary).
"Yahoo Cards Content Page Advertising Revenue" shall mean [
]
"Yahoo Cards Front Page" shall mean the home page of Yahoo Cards.
"Yahoo Cards Pages" shall mean any Page within the Yahoo Cards
property, including but not limited to the Yahoo Cards Front Page, the Yahoo
Cards Category Pages and the American Greetings Content Pages.
"Yahoo Competitor" shall mean the following entities: [
]
-23-
24
EXECUTION COPY
"Yahoo Graphic Link" shall mean a graphic image containing the Yahoo
name and logo provided by Yahoo to American Greetings that: (a) has dimensions
no larger than 88 pixels wide by 31 pixels high, (b) does not contain animation,
(c) has a file size of no greater than 2K, (d) contains alt text of no more than
ten (10) characters (including spaces), (e) contains no more than 6seconds of
animation (with no looping), (f) is in GIF format, (g) will permit users to
navigate directly to a Page on the Yahoo Properties. These specifications may be
modified by American Greetings in its reasonable discretion, provided that Yahoo
shall be given reasonable notice in order to modify the Yahoo Graphic Link to
comply with any such changes.
"Yahoo Mail" shall mean Yahoo's principal U.S. based e-mail service
located at xxxx://xxxx.xxxxx.xxx or any successor URL.
"Yahoo Main Site" shall mean Yahoo's principal U.S. based directory to
the World Wide Web located at xxxx://xxx.xxxxx.xxx or any successor URL.
"Yahoo Privacy Policy" shall mean that privacy policy currently located
at xxxx://xxxx.xxxxx.xxx/xxxx/xxxxxxx/ (as may be amended by Yahoo! from time to
time).
"Yahoo Properties" shall mean any Yahoo branded or co-branded media
properties, including, without limitation, Internet guides, developed in whole
or in part by Yahoo or its Affiliates and distributed or made available by Yahoo
or its Affiliates over the Internet or any wireless device.
"Yahoo Store" shall mean that Yahoo branded property containing various
online stores and currently located at xxxx://xxxxx.xxxxx.xxx or any successor
URL.
-24-
25
EXECUTION COPY
EXHIBIT B
AMERICAN GREETINGS BRAND FEATURES
---------------------------------
American Greetings logo
[and such other brand features supplied by American Greetings]
YAHOO BRAND FEATURES
--------------------
Yahoo! logo in stylized type
Yahoo "Y Guy" logo
Do You Yahoo!?
[and such other brand features supplied by Yahoo]
-25-
26
EXECUTION COPY
EXHIBIT C
Delivery Specifications
-----------------------
1) Images will be zipped and sent to Yahoo either through ftp or another
mutually agreed upon system.
2) American Greetings will provide Yahoo with a spreadsheet accompanying the
images which indicates each of the following for each image:
(a)category;
(b) whether or not it is animated;
(c) the location of the thumbnail, midi,background images, and any other files
or text which accompanies the card.
3) Each card may contain an American Greetings Logo. The logo size will be
approximately 100x30 pixels, will not be animated, and will be less than 5k in
file size.
4) The thumbnail images shall be 100x68 pixels unless mutually agreed upon
otherwise. The thumbnail images will not be animated, and will be less than 5k
in file size.
5) The images for the cards themselves will be approximately 300x300 pixels and
will be less than 30k in file size.
-26-
27
EXECUTION COPY
EXHIBIT D
(Attach Screen Shots)
-27-
28
EXECUTION COPY
EXHIBIT E
Wire Transfer Instructions
--------------------------
Yahoo's Bank Information:
Institution Name: [
Institution Address:
ABA:
Beneficiary Name:
Beneficiary Account Number: ]
-28-
29
EXECUTION COPY
EXHIBIT F
Mutual Nondisclosure Agreement Terms
------------------------------------
1. "Confidential Information" as used in this Agreement shall mean any
and all technical and non-technical information, including patent, trade secret,
and proprietary information, techniques, sketches, drawings, models, inventions,
know-how, processes, apparatus, equipment, algorithms, software programs,
software source documents, and formulae related to the current, future and
proposed products and services of each of the parties, and includes, without
limitation, their respective information concerning product and feature plans,
research, experimental work, development, design details and specifications,
engineering, financial information, procurement requirements, purchasing,
manufacturing, customer lists, business forecasts, sales and merchandising, and
marketing plans and information.
2. 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 and
contractors who need to know such information and who have previously agreed,
either as a condition to employment or in order to obtain the Confidential
Information, to be bound by terms and conditions substantially similar to those
of this Agreement.
4. There shall be no liability for disclosure or use of Confidential
Information which is: (a) in the public domain through no fault of the receiving
party, (b) rightfully received from a third party without any obligation of
confidentiality, (c) rightfully known to the receiving party without any
limitation on use or disclosure prior to its receipt from the disclosing party,
(d) independently developed by the receiving party, (e) generally made available
to third parties without any restriction on disclosure, or (f) communicated in
response to a valid order by a court or other governmental body, as otherwise
required by law, or as necessary to establish the rights of either party under
this Agreement (provided that the party so disclosing has provided the other
party with a reasonable opportunity to seek protective legal treatment for such
Confidential Information).
5. "Residual Information" shall mean any Confidential Information of
the disclosing party which may be retained in intangible form in the minds of
those individuals of the receiving party who have had proper access to such
Confidential Information. Notwithstanding anything else in this Agreement, the
receiving party shall be free to use any Residual Information for any purpose
whatsoever, including, without limitation, the development of its own products,
or business, provided that such Residual Information is not used in connection
with products that are directly competitive to those of the disclosing party.
-29-
30
EXECUTION COPY
6. Each of the parties agrees that it shall treat all Confidential
Information of the other party with the same degree of care as it accords to its
own Confidential Information, and each of the parties represents that it
exercises reasonable care to protect its own Confidential Information.
7. Each of the parties agrees that it will not modify, reverse
engineer, decompile, create other works from, or disassemble any software
programs contained in the Confidential Information of the other party unless
specifically permitted to do so, in writing, by the disclosing party.
8. All materials (including, without limitation, documents, drawings,
models, apparatus, sketches, designs and lists) furnished to one party by the
other, and which are designated in writing to be the property of such party,
shall remain the property of such party and shall be returned to it promptly at
its request, together with any copies thereof.
9. This Agreement shall govern all communications between the parties
that are made during the period from the effective date of this Agreement to the
date on which either party receives from the other written notice that
subsequent communications shall not be so governed, provided, however, that each
party's obligations under Sections 2 and 3 with respect to Confidential
Information of the other party which it has previously received shall continue
unless and until such Confidential Information falls within Sections 4 or 5.
Neither party shall communicate any information to the other in violation of the
proprietary rights of any third party. Neither party acquires any licenses under
any intellectual property rights of the other party under this Agreement.
-30-
31
EXECUTION COPY
EXHIBIT G
American Greetings Competitors
American Greetings Competitors shall include:
[
]
-31-
32
EXECUTION COPY
EXHIBIT H
Front Page Promotion Guidelines
-------------------------------
The Front Page Promotion shall be in the form of a banner advertisement and
subsequent promotion pages, and shall have the following specifications and
characteristics (references to the "sponsor" apply to the advertiser on whose
behalf the front page promotion is run).
Banner Specifications:
----------------------
Size: 230 pixels wide by 33 pixels high. File size must not exceed 3k.
The banner can animate for a period of not more than 6 seconds. No endless
looping is permitted.
For a [ ] promotion campaign, the sponsor may run up to [ ] different
banners that will rotate equally.
Background Color: Backgrounds which are not transparent must have a color(s)
which are using a HSB color space, between 0% and 50% in saturation, and between
50% and 80% in brightness. The hue may be any value. Yahoo reserves the right to
define the portions of a submitted image that comprises the background.
Transparent backgrounds are permitted.
All banners are subject to aesthetic and content approval by Yahoo. All artwork
must be submitted to Yahoo at least five (5) business days prior to the
promotion's launch date. Yahoo reserves the right to review, reject or modify
any part of any creative at its sole discretion. The sponsor shall ensure that
their promotion complies in all respects with applicable laws and regulations.
The sponsor expressly understands and agrees that the approval of the official
rules for any promotion by Yahoo shall not constitute an opinion as to the legal
appropriateness or adequacy of such rules or their manner of use.
Sweepstakes Prizes: Yahoo requires that front page promotion sponsors provide a
prize package of a minimum retail value. Values for different types of front
page promotions are set forth below.
Type of Promotion: Prize Package Minimum
------------------ ---------------------
Front Page Banner [ ]
Front Page Text [ ]
Prize values for multi-sponsored promotions vary.
Sponsor is responsible for all shipping/handling charges and any other expenses
associated with prize fulfillment.
Sponsor is responsible for sending 1099 notifications to the promotion winners
and the IRS.
Sponsor shall deliver prizes to winning contestant within six (6) weeks of the
promotion's conclusion.
-32-
33
EXECUTION COPY
Sponsor hosted promotions.
--------------------------
A standard promotion hosted by the sponsor shall consist of the following:
Banner(s) or text links on a Yahoo hosted page that link to the sponsor hosted
promotion jump page.
A jump page consisting of promotion graphics, client graphics, copy/content and
contest description.
A rules page consisting of official rules that govern the promotion.
An entry form page consisting of promotion graphics and the entry form. The
entry form shall include the following disclaimer located directly next to the
"submit" button.
(Sponsor's Name) is solely responsible for the use of this information.
A thank you page consisting of graphics and text.
Total size of all graphics on each promotion page must be less than 35K. This is
to optimize loading times for contestants and to reduce the amount of people
that turn away from the promotion before the page loads.
If sponsor host's the promotion, sponsor further agrees to the following:
To allow Yahoo engineers to run a stress test program to test the sponsor's
server(s) capacity. A mutually agreed upon time will be arranged with sponsor to
run this test program, which simulates the traffic level that can be expected
from a front page promotion. Sponsor shall make necessary modifications to its
server capacity so that it will pass such test prior to the start date of the
promotion.
Submit promotion URLs at least [ ] prior to the starting date
of the promotion for Yahoo final approval (which may include Yahoo required
modifications to the promotion).
Sponsor may not post any contest page until it receives final approval of the
entire page from Yahoo.
Yahoo reserves the right to access all aggregate information captured on entry
form submissions through the promotion. Sponsor agrees to provide such
information to Yahoo immediately upon Yahoo's request. Yahoo's use of this
information will be restricted to internal purposes.
Traffic sent to sponsor home page.
----------------------------------
In order to send traffic from the promotional banner on Yahoo directly to a
sponsor's home page instead of a jump page, the following requirements must be
met, with no exceptions:
Sponsor agrees to create a customized prominent graphic dedicated to
prize/contest details to be displayed on sponsor's home page. Such graphic shall
always be above the fold of the sponsor's home page and link directly to the
sweepstakes page/entry form.
-33-
34
EXECUTION COPY
Total pixel area of the graphic must be at least 28,080 k or the equivalent of a
468x60 banner.
All artwork/creative must be submitted to Yahoo at least [ ]
prior to the promotion's start date.
Yahoo reserves the right to review, reject or modify any part of any creative at
its sole discretion.
Sponsor shall be responsible for the design, layout, posting and maintenance of
the promotion pages.
Sponsor shall operate the contest on computers and network hardware under its
ownership or control.
-34-
35
EXECUTION COPY
EXHIBIT I
AMERICAN GREETINGS DIRECTORY PAGES:
-----------------------------------
[
]
AMERICAN GREETINGS KEYWORDS:
----------------------------
[
]
-35-
36
EXECUTION COPY
[
]
-36-
37
EXECUTION COPY CONFIDENTIAL
EXHIBIT J
Front Page Dates
----------------
-37-
38
EXECUTION COPY CONFIDENTIAL
EXHIBIT K
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.
-38-
39
EXECUTION COPY CONFIDENTIAL
American Greetings Trademark Guidelines
-39-
40
EXECUTION COPY CONFIDENTIAL
EXHIBIT L
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 ss. 2.34 of its Rules, now in
further conformity with the procedure prescribed in ss. 2.34 of its Rules, the
Commission hereby issues its complaint, makes the following jurisdictional
findings and enters the following order:
-40-
41
EXECUTION COPY CONFIDENTIAL
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.
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. ss. 44.
I.
-41-
42
EXECUTION COPY CONFIDENTIAL
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.
-42-
43
EXECUTION COPY CONFIDENTIAL
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
-43-
44
EXECUTION COPY CONFIDENTIAL
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.
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
-44-
45
EXECUTION COPY CONFIDENTIAL
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 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.
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
-45-
46
EXECUTION COPY CONFIDENTIAL
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.
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
-46-
47
EXECUTION COPY CONFIDENTIAL
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, 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
-47-
48
EXECUTION COPY CONFIDENTIAL
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
-48-
