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EXHIBIT 10.11
YAHOO! INC. - E-LOAN INC.
LICENSE AGREEMENT
This License Agreement (the "Agreement") is entered into as of
___________, 1998 (the "Effective Date") between Yahoo!, Inc., a California
corporation with offices at 0000 Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxx, XX 00000
("Yahoo") and E-LOAN Inc., a California corporation with offices at 000
Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxx, XX 00000 ("E-Loan").
WHEREAS, Yahoo and E-Loan entered into a License Agreement on December 5,
1997 the ("License Agreement") which contained, among other things, a license to
certain of E-Loan's mortgage related content and services; and
WHEREAS, the parties wish to enter into this Agreement, where subject to
the terms contained herein, E-Loan will license to Yahoo certain of E-Loan's
mortgage related content and services upon the expiration of the term of License
Agreement and the parties will conduct other joint marketing activities.
In consideration of the mutual promises contained herein, the parties agree as
follows:
SECTION 1: DEFINITIONS.
Unless otherwise specified, capitalized terms used in this Agreement shall have
the meanings attributed to them in Exhibit A hereto.
SECTION 2: LICENSES.
2.1 License to Yahoo. Subject to the terms and conditions of this Agreement,
E-Loan hereby grants to Yahoo, under E-Loan's Intellectual Property Rights:
(a) A non-exclusive, worldwide license to use, modify, reproduce, distribute,
display and transmit the E-Loan Content in connection with the Yahoo Loan
Center and other Yahoo Properties and to permit Users to download and
print the E-Loan Content. Yahoo's license to modify the E-Loan Content
shall be limited to modifying the E-Loan Content to fit the format and
look and feel of the Yahoo Property.
(b) A non-exclusive, worldwide, fully paid license to use, reproduce and
display the E-Loan Brand Features: (i) in connection with the presentation
of the E-Loan Content on the Yahoo Properties; and (ii) in connection with
the marketing and promotion of the Yahoo Properties.
(c) Yahoo shall be entitled to sublicense the rights set forth in this Section
2.1 (i) to its Affiliates only for inclusion in Yahoo Properties, and (ii)
in connection with
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any mirror site, derivative site, or distribution arrangement concerning a
Yahoo Property.
2.2 License to E-Loan. Subject to the terms and conditions of this Agreement,
Yahoo hereby grants to E-Loan, under Yahoo's Intellectual Property Rights a
non-exclusive, worldwide, fully paid license to use, reproduce and display the
Yahoo Brand Features (i) in connection with the co-branded banner described in
3.2(a), (ii) to indicate the location of the graphic link described in Section
3.2(f) below and (iii) in connection with the marketing and promotion of the
Yahoo Loan Center, provided that Yahoo has the right to approve all marketing
and promotional material and all other uses of the Yahoo Brand Features prior to
its first distribution.
2.3 Exclusivity.
(a) In the Yahoo Loan Center, E-Loan shall be the exclusive integrated on-line
provider of home mortgage content that provides the User with the same
features as the E-Loan Transaction Content. Nothing in this Section
2.3(a) shall preclude Yahoo from including in the Yahoo Loan Center (i)
[*], so long as Yahoo does not include content or a direct link to content
from [*] on the Yahoo Loan Center that has the same features and
functionality as the E-Loan Transaction Content, (ii) other merchants with
content relating to loans and home mortgages and (iii) a directory of and
links to other mortgage providers. E-Loan acknowledges that Yahoo shall
not be precluded from including links to merchants and mortgage providers
on the Yahoo Loan Center that may provide content with the same features
as the E-Loan Transaction Content or that allow a user to apply for a loan
on-line so long as such content is not one click away from the Yahoo Loan
Center. In addition, Yahoo shall not be restricted from placing banner
advertisements or other advertisements and promotions from any source on
the Yahoo Loan Center; provided that Yahoo shall not place any banner
advertising on the first page of the Yahoo Loan Center by or on behalf of
any third party whose primarily business is providing customers with
customized mortgage quotes for first or second home mortgage products
on-line.
(b) E-Loan shall not license, distribute or integrate its content, features or
services at a level similar or greater than that contained herein with any
of Yahoo's competitors (which currently include, but are not limited to,
Excite, Lycos, AOL, Microsoft, C/net, Intuit, Netscape and Infoseek and
their successors). Notwithstanding the foregoing, E-Loan shall not be
restricted from placing banner advertisements or links to the E-Loan Site
below the line in the normal course of business on any of the foregoing
sites.
SECTION 3: RESPONSIBILITIES OF THE PARTIES.
3.1 Yahoo's Responsibilities.
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*Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
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(a) Yahoo shall be solely responsible for the design, layout, posting, and
maintenance of the Yahoo Loan Center and the Co-Branded Pages. The E-Loan
Content shall appear on the Yahoo Loan Center in a manner similar to the
example set forth on Exhibit D. E-Loan shall have the right to approve
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any material changes to the design and placement of the E-Loan Content,
such consent not to be unreasonably withheld. Except for the E-Loan
Transaction Content and except for Yahoo's obligations regarding the
module in My Yahoo described in Section 3.1(f) below, Yahoo is under no
obligation, express or implied, to post or otherwise include any of the
E-Loan Content in any Yahoo Property, including without limitation, on the
Yahoo Loan Center.
(b) Co-Branded Pages will include a co-branded banner with the Yahoo Brand
Features and the E-Loan Brand Features in a manner similar to the example
set forth in Exhibit D. [*]. Yahoo shall include on the Co-Branded Pages a
text link above the fold, and a link at the bottom of the page that shall
direct users to E-Loan Transaction Content pages hosted by Yahoo.
(c) Yahoo will include a text link to the Yahoo Loan Center on the Yahoo
Properties as set forth below. The appearance and placement of such text
link is in Yahoo's sole discretion.
(i) [*]
(ii) The front page of Yahoo Finance currently located at
xxxx://xxxxx.xxxxx.xxx/
(iii)The residential real estate listings of Yahoo Real Estate
Classifieds, which currently appears at the bottom of each such page
but may be changed as determined by Yahoo.
(iv) The front page and on the left side, where applicable (or in
such other location as determined by Yahoo), of the real estate page
of Yahoo Classifieds currently located at [*]
(v) For not less than [*] days during the Term, on the front page of
the Yahoo Main Site; provided that such text link may link to the
front page of the Yahoo Loan Center or any subpages. The timing,
placement and
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*Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
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appearance of such text link shall be at Yahoo's sole discretion and
shall be subject to availability.
(vi) For not less than [*] days during the Term, on the "Inside
Yahoo" module on the top pages of [*]
(vii) On a navigational area on the top page of real estate news
that appears in Yahoo Real Estate.
(viii) A text link or graphic button (to be determined in Yahoo's
sole discretion) on the keyword and directory pages related to real
estate on the Yahoo Main Site as set forth on Exhibit E. From time
to time and at any time Yahoo shall have the right to change such
keyword and directory pages.
[*]
[*]
(d) Yahoo shall provide [*] page views of banner advertisements that link to
the Yahoo Loan Center. Such banner advertisements shall be created by
Yahoo and placed, subject to availability, on run of Yahoo network. In
the event that Yahoo fails to deliver such number of page views at the
expiration of the Term, Yahoo will "make good" the shortfall by extending
its obligations to place such banner advertisements beyond the end of the
Term until such page view obligation is satisfied. The provisions set
forth in this Section 3.1(d) set forth the entire liability of Yahoo, and
E-Loan's sole remedy, for Yahoo's breach of its page view obligations.
(e) Yahoo shall integrate a text link to the Co-Branded Pages in each
residential real estate listing of Yahoo Real Estate Classifieds. The
appearance and look and feel of such text link shall be at Yahoo's
discretion.
(f) Yahoo will continue to offer users of My Yahoo the capability to include a
customized module on the finance page of My Yahoo of E-Loan's monitor a
loan feature.
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*Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
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(g) [*]
3.2 E-Loan Responsibilities.
(a) E-Loan shall provide and host the initial page and all subsequent pages
that contain the results of User's inquiries in connection with the E-Loan
Transaction Content. Such pages will be co-branded with the Yahoo Brand
Features and the E-Loan Brand Features. The design and content of such
pages shall be mutually agreed upon by the parties and shall (i) reflect
the Yahoo look and feel and (ii) contain a graphic link provided by Yahoo
that links back to Yahoo. The parties agree that the design and content of
such pages currently hosted by E-Loan as of the Effective Date are deemed
acceptable for purposes of this Section 3.2(a).
(b) E-Loan shall continue to provide users of My Yahoo with customized monitor
a loan results on a daily basis via the User's account with My Yahoo.
(c) E-Loan shall use best efforts to ensure that all pages of the E-Loan Site
linked from any Yahoo Property comply with the scale, speed and
performance equivalent to that provided by the Yahoo Main Site but in no
event less than the current speed, scale and performance of the E-Loan
Site. E-Loan shall also operate and maintain the E-Loan Site to be
competitive with other similar sites on the world wide web, based on
performance, quality and comparative standing of the E-Loan Site.
(d) E-Loan shall provide Yahoo the E-Loan Content and shall use best efforts
to ensure that Users receive results of inquiries in connection with the
E-Loan Transaction Content that are accurate, comprehensive and
error-free. Users that click-through to the E-Loan Site to apply for a
loan shall also receive results of such requests that are accurate,
comprehensive and error-free.
(e) In no event shall any page on the E-Loan Site linked from any Yahoo
Property contain graphic or textual hyperlinks, sponsorships or
advertising banners of any kind from [*]
(f) E-Loan shall place a Yahoo graphic link on those pages of the E-Loan Site
to which users Click-through. Such Yahoo graphic link shall (a) be placed
on the E-
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*Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
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Loan Site in a manner approved by Yahoo (b) contain the Yahoo name and
logo as provided by Yahoo and (c) directly link the user back to a page
designated by Yahoo on the Yahoo Properties. Yahoo shall provide all
graphic images, text, URLs, URL formats, and any other information or
technology necessary for E-Loan to place such Yahoo graphic link back to
Yahoo.
(g) In the event that E-Loan includes a "tools/other resources" (or similar
area) on the E-Loan Site, E-Loan shall place a text link to Yahoo Finance.
In addition, if E-Loan elects to promote any free email service in the
"tools/other resources" (or similar area) on the E-Loan Site, then E-Loan
shall promote Yahoo Mail in such area of the E-Loan Site and in a manner
mutually agreed upon by the parties. E-Loan shall not promote or feature
any other email service in any manner on the E-Loan Site.
(h) E-Loan shall ensure that all information provided by users of the E-Loan
Site is maintained, accessed and transmitted in a secure environment and
in compliance with security specifications equal to that currently
provided on the E-Loan Site as of the Effective Date.. E-Loan shall
provide a link to its policy (or to Yahoo's policy) regarding the
protection of user data on those pages of the E-Loan Site where the user
is requested to provide personal or financial information.
(i) E-Loan shall deliver the E-Loan Content and all updates to Yahoo in
accordance with the delivery specifications set forth in Exhibit C.
3.3 Mutual Responsibilities.
(a) Yahoo and E-Loan shall continue the current process where certain
information submitted by a user is transmitted in an intelligent query to
E-Loan from Yahoo. For example, if a User is looking for a $1,000,000
home, that information will be sent to the E-Loan Site and would appear as
mortgage information for that User.
(b) Each party shall comply with the trademark guidelines provided by the
other party with respect to the use of such party's Brand Features and
neither party will alter or impair any acknowledgment of copyright or
other Intellectual Property Rights of the other.
(c) E-Loan will remain solely responsible for the operation of the E-Loan
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.
(d) Each party shall provide on-going assistance to the other party with
regard to technical, administrative and service-oriented issues relating
to the utilization, transmission and maintenance of the E-Loan Content, as
may be reasonably requested.
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SECTION 4: COMPENSATION.
4.1 Slotting Fee. In consideration of Yahoo's performance and obligations as set
forth herein, E-Loan will pay to Yahoo a total slotting fee equal to [*]. The
slotting fee shall not be determined in any manner by the number or amount of
loan applications taken or loans originated by E-Loan. Such fee shall be paid to
Yahoo quarterly on the dates set forth below with the first payment designated
as a set up fee for the design, consultation, development, implementation and
placement of the E-Loan Content.
Payment Date
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[*] [*]
4.2 Click-through Fee. In addition to the slotting fee, E-Loan shall pay to
Yahoo a fee equal to [*] per Click-through after a total of [*] Click-throughs
have occurred and continuing until [*] Click-throughs have occurred. Thereafter,
E-Loan shall pay Yahoo [*] per Click-through. The Click-through fee shall not
be determined in any manner by the number or amount of loan applications taken
or loans originated by E-Loan. Payments of the Click-through fee are due and
payable within thirty (30) days after the last day of each calendar quarter
during the term of this Agreement.
4.3 Audit Rights. Yahoo shall have the right, at its own expense, to direct an
independent certified public accounting firm to inspect and audit the accounting
and sales books and records of E-Loan that are relevant to the payments set out
in Section 4.2 above; provided, however, that: (i) Yahoo shall provide E-Loan
[*] days notice prior to such audit; (ii) any such inspection and audit shall be
conducted during regular business hours in such a manner as not to interfere
with normal business activities; (iii) in no event shall audits be made more
frequently than [*] per calendar year unless an underpayment of more than [*] is
revealed in any audit and then, no more than [*] every quarter; and (iv) in the
event that any audit reveals an underpayment of more than [*] of the amounts due
Yahoo for any calendar quarter, E-Loan will reimburse the reasonable cost of
such audit. If any audit shall reveal an overpayment of the amounts due Yahoo,
E-Loan shall be entitled to credit such amounts against further payments due,
and if no further payments are due, Yahoo shall promptly refund such amount to
E-Loan.
4.4 Advertising Revenue. Yahoo shall have the sole right to sell, license or
otherwise dispose of all advertising and promotional rights with respect to the
Yahoo Properties, including the Yahoo Loan Center, the Co-Branded Pages and all
other pageviews to
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*Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
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Yahoo's servers. E-Loan shall have the sole right to sell, license or otherwise
dispose of all advertising and promotional rights with respect to the E-Loan
Site and all other pageviews to E-Loan's servers.
4.5 Payment Information. All payments herein are non-refundable and
non-creditable (except as set forth in Section 4.3 above) and shall be made by
E-Loan in U.S. dollars via wire transfer into Yahoo's main account pursuant to
the wire transfer instructions set forth on Exhibit F. Any portion of the above
payments which has not been paid on the dates set forth above shall bear
interest at the lesser of (i) one percent (1%) per month or (ii) the maximum
amount allowed by law. Notwithstanding the foregoing, any failure by E-Loan to
make the payments specified in Sections 4.1 and 4.2 on the dates set forth
therein shall constitute a material breach of this Agreement.
SECTION 5: REPRESENTATIONS AND WARRANTIES.
5.1 Each of Yahoo and E-Loan represents and warrants that at all times during
the term of this Agreement it shall have all licenses and approvals to
enter into this Agreement and grant the licenses contained herein 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 they are a party or any
government order or decree to which they are subject.
5.2 E-Loan represents and warrants that it is, and at all times during the
term of this Agreement shall be, in compliance with any and all applicable
laws, rules and regulations of any jurisdiction, including, without
limitation, the Federal Real Estate Settlement Procedures Act of 1974 and
HUD Regulation X promulgated thereunder, the Federal Equal Credit
Opportunity Act, and Federal Reserve Regulation B, the Federal Truth in
Lending Act and Federal Reserve Regulation Z promulgated thereunder, the
Federal Fair Credit Reporting Act, and all federal, state and local
privacy laws, rules and regulations and any other applicable laws of any
jurisdiction now in effect and that may come into existence during the
term hereof.
5.3 E-Loan represents and warrants that the E-Loan Content is substantially
free from programming errors or viruses and will produce results in
response to User's inquiries that are accurate, comprehensive and
error-free. E-Loan further represents and warrants that all User
information will be obtained, maintained and distributed in a secure
environment and will not be used or disclosed except as allowed herein.
SECTION 6: INDEMNIFICATION.
6.1 E-Loan, 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
against Yahoo or an Affiliate
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based on or arising from a claim (a) that, if true, would constitute a
breach of the representations and warranties set forth in Section 5 above
or (b) that the E-Loan Brand Features, any E-Loan Content or any material,
product, information, data or service produced, distributed, offered or
provided by E-Loan or any material presented on any site on the Internet
produced, maintained, or published by E-Loan, infringes in any manner any
copyright, patent, trademark, trade secret or any other intellectual
property right of any third party, is or contains any material or
information that is obscene, defamatory, libelous, slanderous, or that
violates any law or regulation, is negligently performed, or that
otherwise violates or breaches any duty toward, or rights of any person or
entity, including, without limitation, rights of publicity, privacy or
personality, or has otherwise resulted in any consumer fraud, product
liability, tort, breach of contract, injury, damage or harm of any kind to
any person or entity and also including any claim relating to any mortgage
loan approval or mortgage application provided by E-Loan; provided;
however, that in any such case: (x) Yahoo provides E-Loan with prompt
notice of any such claim; (y)Yahoo permits E-Loan to assume and control
the defense of such action, with counsel chosen by E-Loan (who shall be
reasonably acceptable to Yahoo); and (z) E-Loan does not enter into any
settlement or compromise of any such claim without Yahoo's prior written
consent, which consent shall not be unreasonably withheld. E-Loan 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 an Affiliate 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 edit or review for accuracy or
appropriateness any E-Loan Content.
6.2 Yahoo, at its own expense, will indemnify, defend and hold harmless E-Loan
and its employees, representatives, agents and affiliates, against any
claim, suit, action, or other proceeding brought against E-Loan based on
or arising from a claim [*] provided, however, that in any such case: (x)
E-Loan provides Yahoo with prompt notice of any such claim; (y) E-Loan
permits Yahoo to assume and control the defense of such action upon
Yahoo's written notice to E-Loan of its intention to indemnify; and (z)
upon Yahoo's written request, and at no expense to E-Loan, E-Loan will
provide to Yahoo all available information and assistance necessary for
Yahoo to defend such claim. Yahoo will not enter into any settlement or
compromise of any such claim, which settlement or compromise would result
in any liability to E-Loan, without E-Loan's prior written consent, which
shall not unreasonably be withheld. Yahoo will pay any and all costs,
damages, and expenses, including, but not limited to, reasonable
attorneys' fees and costs awarded against or otherwise incurred by E-Loan
in connection with or arising from any such claim, suit, action or
proceeding.
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*Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
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SECTION 7: LIMITATION OF LIABILITY.
EXCEPT AS PROVIDED IN SECTIONS 4 AND 6, UNDER NO CIRCUMSTANCES
SHALL E-LOAN, YAHOO, OR ANY AFFILIATE BE LIABLE TO ANOTHER PARTY FOR INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM THIS
AGREEMENT, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR
LOST BUSINESS.
SECTION 8: TERM AND TERMINATION.
8.1 Term. This Agreement will become effective as of the Effective Date and
shall, unless sooner terminated as provided below or as otherwise agreed, remain
effective for a term of twelve (12) months following the Launch Date.
(a) [*] after the Launch Date, Yahoo will provide written notice
to E-Loan in the event that Yahoo, in its sole discretion, elects to extend the
program described in this Agreement [*].
8.2 Termination for Cause. Notwithstanding the foregoing, this Agreement may be
terminated by either party immediately upon notice if the other party: (w)
becomes insolvent; (x) files a petition in bankruptcy; (y) makes an assignment
for the benefit of its creditors; or (z) breaches any of its obligations under
this Agreement in any material respect, which breach is not remedied within
thirty (30) days (ten (10) days in the case of a failure to pay) following
written notice to such party. . In the event that Yahoo provides a notice of
termination under clause (z) above due to a failure to pay, Yahoo shall have the
right to suspend performance under Sections 2.3(a) and 3.1 of this Agreement for
the notice period until the breach is fully remedied by E-Loan.
8.3 Effect of Termination. Any termination pursuant to this Section 8 shall be
without any liability or obligation of the terminating party, other than with
respect to any breach of this Agreement prior to termination. The provisions of
Sections 4.1, 4.3, 4.5, and 5 - 12 shall survive any termination or expiration
of this Agreement; except that if this Agreement terminates due to a breach by
Yahoo, then Section 4.1 shall not survive.
SECTION 9: OWNERSHIP.
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*Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
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9.1 By E-Loan. Yahoo acknowledges and agrees that: (i) as between E-Loan on the
one hand, and Yahoo and its Affiliates on the other, E-Loan owns all right,
title and interest in the E-Loan Content and the E-Loan Brand Features; (ii)
nothing in this Agreement shall confer in Yahoo or an Affiliate any right of
ownership in the E-Loan Content or the E-Loan Brand Features; and (iii) neither
Yahoo or its Affiliates shall now or in the future contest the validity of the
E-Loan Brand Features.
9.2 By Yahoo. E-Loan acknowledges and agrees that: (i) as between E-Loan on the
one hand, and Yahoo and its Affiliates on the other, and subject to E-Loan's
right in the E-Loan Content and the E-Loan Brand Features, Yahoo or the
Affiliates own all right, title and interest in the Yahoo Loan Center, the
Co-Branded Pages and any other Yahoo Property and the Yahoo Brand Features; (ii)
nothing in this Agreement shall confer in E-Loan any license or right of
ownership in the Yahoo Brand Features; and (iii) E-Loan shall not now or in the
future contest the validity of the Yahoo Brand Features.
9.3 [*]
SECTION 10: PUBLIC ANNOUNCEMENTS; CONFIDENTIALTIY.
10.1 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. Yahoo will publicly announce this relationship by issuing
a joint press release.
10.2 Confidentiality. Yahoo and E-Loan have previously entered into a Mutual
Nondisclosure Agreement, dated December 10, 1997, and expressly acknowledge that
such Mutual Nondisclosure Agreement remains in full force and effect in
accordance with its terms.
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*Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
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SECTION 11: INSURANCE.
E-Loan agrees that it will maintain insurance with a carrier that is reasonably
acceptable to Yahoo and with coverage for commercial general liability of at
least two million dollars per occurrence. Prior to the launch of the E-Loan
Content on the Yahoo Loan Center, E-Loan shall obtain coverage for errors and
omissions of at least two million dollars per occurrence and E-Loan will name
Yahoo as an additional insured on such insurance. E-Loan will provide evidence
of such insurance to Yahoo prior to the launch of the E-Loan Content on the
Yahoo Loan Center. Yahoo shall have the right to terminate this Agreement upon
written notice to E-Loan without liability or obligation of any kind to E-Loan
for any such termination by Yahoo. E-Loan shall not cancel or modify such
insurance without Yahoo's prior written consent and such insurance shall remain
in effect after the termination hereof except that E-Loan shall not be obligated
to continue to name Yahoo as an additional insured after the expiration of the
term of this Agreement.
SECTION 12: NOTICE; MISCELLANEOUS PROVISIONS
12.1 Notices. All notices, requests and other communications called for by this
Agreement shall be deemed to have been given immediately if made by 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: (000) 000-0000 Attention: Vice President (e-mail:
xxxxx@xxxxx-xxx.xxx), with a copy to its General Counsel (e-mail:
xxxxxx@xxxxx-xxx.xxx), and if to E-Loan at the physical and electronic mail
addresses set forth on the signature page of this Agreement, or to such other
addresses as either party shall specify to the other. Notice by any other means
shall be deemed made when actually received by the party to which notice is
provided.
12.2 Miscellaneous Provisions. 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: (i) 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. 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. 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. The prevailing
party in any action to enforce this Agreement shall be entitled to reimbursement
of its expenses, including reasonable attorneys' fees. 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. No failure of either party to exercise or enforce any of its rights
under this Agreement will act
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as a waiver of such rights. Except as provided in Section 10.2 and except that
the License Agreement shall continue in effect until it terminates according to
its terms, 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.
Notwithstanding the foregoing, the provisions of this Agreement expressly
supersedes and replaces the provisions set forth in Section 8.1(a) of the
License Agreement with respect to continuing the program beyond the term set
forth in the License Agreement. This Agreement may only be modified, or any
rights under it waived, by a written document executed by both parties. No third
party beneficiaries are created or established by this Agreement. Except as
otherwise specifically provided for herein, each party shall bear its own
expenses for the negotiation of and the performance of this Agreement. 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.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives as of the date first written above.
YAHOO! INC. E-LOAN, INC.
By: By:
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Title: Title:
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CONFIDENTIAL
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EXHIBIT A
DEFINITIONS
"Affiliates" shall mean any company or any other entity world-wide,
including, without limitation, corporations, partnerships, joint ventures, and
Limited Liability Companies, in which Yahoo owns at least a twenty percent
ownership, equity, or financial interest.
"Click-through" shall mean a user presence at the E-Loan Site that
originated from a Yahoo Property.
"Co-Branded Pages" shall mean those pages hosted by Yahoo that are
co-branded and that solely contain E-Loan Content.
"Launch Date" shall mean March 1, 1999.
"E-Loan Brand Features" shall mean all trademarks, service marks, logos
and other distinctive brand features of E-Loan that are used by E-Loan,
including, without limitation, the trademarks, service marks and logos described
in Exhibit B hereto.
"E-Loan Content" shall mean information and data relating to first and
second mortgage loans and the loan process and includes the E-Loan Transaction
Content as mutually agreed upon from time to time.
"E-Loan Transaction Content" shall mean (i) E-Loan's mortgage quote
feature that provides a user with customized quotes on mortgage products
designated by the user, (ii) E-Loan's mortgage loan recommendation feature that
provides recommendations on mortgage products based on the user's response to a
series of questions, (iii) E-Loan's mortgage qualification feature that provides
an analysis of a user's position as a borrower compared to general lender
guidelines and, in response to a series of questions, will match a user's
borrowing criteria against a database of lenders and their guidelines, and (iv)
E-Loan's monitor a loan service that, in response to a series of questions,
determines whether any mortgage products are available in the market that are
superior to a user's current mortgage. E-Loan Transaction Content includes the
foregoing features and services set forth in clauses (i) through (iv) above as
applied to second loans and home equity loans when such features and services
are available in a significant number of states and acceptable to both parties
and does not include any content or feature allowing a user to apply for a loan
on-line.
"E-Loan Site" shall mean E-Loan's World Wide Web site currently located at
xxxx://xxx.xxxxx.xxx.
"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.
CONFIDENTIAL
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"Internet" shall mean the collection of computer networks commonly known
as the Internet, and shall include, without limitation, the World Wide Web.
"My Yahoo" shall mean that personalized web product that is part of the
Yahoo Main Site and currently located at xxxx://xxx.xx.xxxxx.xxx.
"User" shall mean a user of the Yahoo Properties.
"Yahoo Brand Features" shall mean all trademarks, service marks, logos and
other distinctive brand features of Yahoo that are used in or relate to a Yahoo
Property, including, without limitation, the trademarks, service marks and logos
described in Exhibit B.
"Yahoo Loan Center" shall mean the Yahoo branded U.S. based property with
information relating to home mortgages currently located at
xxxx://xxxx.xxxxx.xxx/. Yahoo shall have the right to change the name of the
Yahoo Loan Center from time to time.
"Yahoo Main Site" shall mean Yahoo's principal U.S. based directory to the
World Wide Web currently located at xxxx://xxx.xxxxx.xxx.
"Yahoo Real Estate Classifieds" shall mean the portion of Yahoo's U.S.
based web site that contains classified listings of residential real estate and
is currently located at xxxx://xxxxxxxxxxx.xxxxx.xxx/xxxxxxxxxxx.xxxx
"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.
CONFIDENTIAL
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EXHIBIT B
E-LOAN BRAND FEATURES
YAHOO BRAND FEATURES
Yahoo!
Yahoo related logos
CONFIDENTIAL
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EXHIBIT C
A. E-Loan's Responsibilities:
E-Loan will deliver the E-Loan Content to Yahoo via e-mail.
B. Yahoo's Responsibilities:
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EXHIBIT D
SAMPLE PAGES
Co-Branded Page (E-Loan Content)
[GRAPHIC]
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Co-Branded Page (E-Loan Transaction Content)
[GRAPHIC]
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Inside Yahoo! Module
[GRAPHIC]
CONFIDENTIAL
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EXHIBIT E
KEYWORD AND DIRECTORY PAGES
[*]
CONFIDENTIAL
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*Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
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EXHIBIT F
WIRE TRANSFER INSTRUCTIONS
[*]
CONFIDENTIAL
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*Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
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AMENDMENT
YAHOO, INC. - E-LOAN INC.
LICENSE AGREEMENT
This Amendment is entered into as of March 19, 1999 (the
"Effective Date") between Yahoo! Inc., a California corporation ("Yahoo") and
E-LOAN Inc., a California corporation ("E-Loan") and amends the License
Agreement (the "Agreement") entered into between Yahoo and E-Loan with a Launch
Date of March 1, 1999.
For good and valuable consideration, the receipt of which is hereby
acknowledged, Yahoo and E-Loan hereby agree to amend the Agreement as follows:
1. The term of the Agreement described in Section 8.1 will be extended for an
additional term of one year commencing March 1, 2000 and continuing until
February 28, 2001 (the "Subsequent Term").
2. During the Subsequent Term, Section 4.1 of the Agreement which describes the
slotting fee to be paid by E-Loan will be replaced in its entirety by the
following paragraph:
"4.1 Slotting Fee. In consideration of Yahoo's performance and obligations as
set forth herein, E-Loan will pay to Yahoo a slotting fee calculated as follows:
[*]
3. During the Subsequent Term, E-loan will pay Yahoo a Click-through fee as
described in Section 4.2 of the Agreement. In addition, during the original term
of the Agreement and the Subsequent Term, the following provisions are added to
the end to the last sentence of Section 4.2:
"Click-through fees are calculated and will be paid by E-Loan based on Yahoo's
advertising tracking system. [*]
4. The following new provision is added to Section 3.2 regarding E-Loan
Responsibilities:
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*Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
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"(j) E-Loan shall deliver to Yahoo a monthly report specifying the following:
[*]
5. The following amendments are made to the definitions set forth in Exhibit A:
The definition of Click-through is replaced by the following:
"Click-through" shall mean a user presence at the E-Loan Site that originated
from a Yahoo Property including, without limitation, a user selecting or
clicking on any link on a Yahoo Property that will link the user to the E-Loan
Site.
A new definition of Unique Users is added as follows:
"Unique Users" shall mean the total number of unduplicated users that visited
the Yahoo Loan Center once during any month as reported by Media Metrix or
similar third party internet measurement and reporting agency.
The definition of Yahoo Loan Center is replaced by the following:
"Yahoo Loan Center" shall mean the Yahoo branded U.S. based property with
information related to loans currently located at xxxx://xxxx.xxxxx.xxx."
6. Except as expressly amended as set forth herein, the Agreement shall remain
in full force and effect in accordance with its terms.
7. This Amendment has been executed by the duly authorized representatives of
the parties, effective as of the date first set forth above.
YAHOO! INC. E-LOAN INC.
By: Illegible By: /s/ Xxxx Xxxxx
----------------------- -----------------------
Name: Illegible Name: Xxxx Xxxxx
--------------------- ---------------------
Title: VP Title: VP
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*Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
