EXHIBIT 10.7
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Confidential Treatment has been requested with respect to portions of the
agreement indicated with an asterisk [*]. A complete copy of this agreement,
including the redacted terms, has been separately filed with the Securities and
Exchange Commission.
ADVERTISING AND PROMOTION AGREEMENT
This Advertising and Promotion Agreement (this "Agreement") is entered
into as of October 3, 1999 (the "Effective Date") between Yahoo! Inc., a
Delaware corporation with offices at 3420 Central Expressway, Santa Clara, CA
95051 ("Yahoo") and Global Sports Interactive, Inc., a Pennsylvania corporation
with offices at 555 South Henderson Road, King of Prussia, PA 19406 ("Global
Sports").
WHEREAS, Yahoo is a global Internet media company that offers a network of
branded programming; and
WHEREAS, Global Sports facilitates the online sale of sports related
merchandise on behalf of the sporting goods retailers set forth on Exhibit F
(the "Global Sports Retailers"); and
WHEREAS, Global Sports and the Global Sports Retailers will participate in
Yahoo's Remote Merchant Integration Program (as defined below); and
WHEREAS, the parties wish to enter into this Agreement where, subject to
the terms contained herein, Yahoo will provide certain marketing services to
promote the online sale of sports merchandise by Global Sports and the Global
Sports Retailers.
NOW THEREFORE, in consideration of the mutual promises contained herein,
the parties agree as follows:
1. Definitions.
The following terms are used in this Agreement with the respective
meanings set forth below:
"Barter Media" shall mean Yahoo's participation in certain mutually agreed
upon point of purchase and traditional advertising conducted by or on behalf of
Global Sports and/or the Global Sports Retailers, as specified in Exhibit L
attached hereto.
[*]
"FTC Order" shall mean that certain "Decision and Consent Order" issued by
the U.S. Federal Trade Commission on February 5, 1999 against GeoCities, Inc., a
California corporation acquired by Yahoo, attached hereto as Exhibit J and any
and all subsequent or related official materials, regulations, laws judgements
or orders.
"Games" shall mean those sports contests between two Major League Baseball
teams.
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"Global Sports [*] Sponsorship" shall mean an advertising promotion
conducted in accordance with Yahoo's standard [*] Sponsorship terms and
conditions, including those set forth in Exhibit I.
"Global Sports Banner" shall mean an advertising promotion substantially
similar in form as that set forth on Exhibit B that: (a) promotes the online
sale of Sports Merchandise, (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 a Global Sports Site
dedicated to Sports Merchandise.
"Global Sports Banner Category Pages" shall mean those Pages within the
Global Sports Banner Categories identified on Exhibit A.
"Global Sports Banner Keywords" shall mean those keywords identified as
such on Exhibit A; provided that, Global Sports shall be permitted to substitute
any such keyword for a comparable keyword subject to availability and Yahoo's
approval; and provided further that, Yahoo may substitute any Global Sports
Banner Keyword for a comparable keyword (based on projected Page Views) in the
event that it determines, in its sole discretion, that such substitution is
necessary to avoid liability for third-party claims relating to a Global Sports
Banner Keyword's use.
"Global Sports Banner Pages" shall mean the Global Sports Banner Category
Pages and Global Sports Banner Search Results Pages.
"Global Sports Banner Search Results Pages" shall mean those Pages
displayed upon a user's search of the Yahoo Main Site for a Global Sports Banner
Keyword. For clarity, a search conducted within other Yahoo Properties that
include special subject matter based search engines (e.g., Yahoo Auctions, Yahoo
Classifieds, Yahoo Clubs, Yahoo News, Yahoo Shopping, Yahoo Yellow Pages) shall
not be considered a search of the Yahoo Main Site for purposes of this
definition.
"Global Sports Brand Features" shall mean the trademarks, service marks,
logos and other distinctive brand features of Global Sports and/or the Global
Sports Retailers.
"Global Sports Button" shall mean a link substantially similar in form as
that set forth on Exhibit B that: (a) contains a Global Sports Brand Feature
(the brand to be one of the Global Sports Retailers chosen by Global Sports in
its sole discretion) 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, and (d) will permit users to navigate directly to a Page on a Global
Sports Site dedicated to Sports Merchandise.
"Global Sports Button Category Pages" shall mean those Pages within the
Global Sports Button Categories identified on Exhibit A.
"Global Sports Button Keywords" shall mean those keywords identified as
such on Exhibit A; provided that, Global Sports shall be permitted to substitute
any such keyword for a comparable keyword subject to availability and Yahoo's
approval; and provided further that, Yahoo may substitute any Global Sports
Button Keywords for a comparable keyword (based on
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projected Page Views) in the event that it determines, in its sole discretion,
that such substitution is necessary to avoid liability for third-party claims
relating to a Global Sports Button Keyword's use.
"Global Sports Button Pages" shall mean the Global Sports Button Category
Pages and the Global Sports Button Search Results Pages.
"Global Sports Button Search Results Pages" shall mean those Pages
displayed upon a user's search of the Yahoo Main Site for a Global Sports Button
Keyword. For clarity, a search conducted within other Yahoo Properties that
include special subject matter based search engines (e.g., Yahoo Auctions, Yahoo
Classifieds, Yahoo Clubs, Yahoo News, Yahoo Shopping, Yahoo Yellow Pages) shall
not be considered a search of the Yahoo Main Site for purposes of this
definition.
"Global Sports Category Text Link" shall mean a text link substantially
similar in form to that set forth in Exhibit B, that: (i) complies with Yahoo's
standard specifications for such links and contains two (2) lines of text, (ii)
will permit users to navigate directly to a Page on the Global Sports Site
dedicated to Sports Merchandise, and (iii) contains up to sixty five (65)
characters per text line (including spaces).
"Global Sports Category Text Link Pages" shall mean those pages within the
Sports and Recreation category of the Yahoo Main Site directory.
"Global Sports [*] Sponsorship" shall mean a multi-faceted promotion
comprised of the following three elements [*]: (1) [*]; (2) [*]; and (3) [*].
With respect to the advertising units described in clauses (2) and (3) above,
Global Sports shall: (i) provide new creative no less frequently than once every
two weeks of the Term, and (ii) ensure that the same creative does not appear on
the same Page in more than one Global Sports [*] Sponsorship advertising unit.
Further, Global Sports shall ensure that each of the Global Sports [*]
Sponsorship advertising units conform to the Yahoo [*] attached as Exhibit N. An
illustration of the manner in which the above advertising units could appear is
set forth on Exhibit B.
"Global Sports Chat Athletes" shall mean the following athletes: [*];
provided that, in the event that any such athlete is either unable or unwilling
to conduct a chat event, a comparable athlete shall be substituted upon the
mutual agreement of the parties.
"Global Sports [*] Module" shall mean a link similar in form as that set
forth on Exhibit B that: (a) promotes the on-line sale of Sports Merchandise,
(b) has dimensions no larger than 120 pixels wide by 120 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 10K, and (f) will permit users
to navigate directly to a Page on the Global Sports Site dedicated to Sports
Merchandise.
[*]
"Global Sports Deliverables Due Date" shall mean (i) for purposes of the
Global Sports Deliverables relating to the Global Sports Banner, Global Sports
Button and Global Sports [*] Sponsorship October 15, 1999; and (ii) for purposes
of all other Global Sports Deliverables,
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October 20, 1999. The parties acknowledge that notwithstanding the foregoing,
Global Sports shall have a continuing obligation to deliver Global Sports
Deliverables pursuant to the terms of this Agreement during the Term (e.g.,
updated product information and creative).
"Global Sports E-Mail" shall mean an e-mail message offering exclusive
offers to Yahoo! Delivers members that: (a) is in HTML format (or text format if
sent to email addresses outside of the Yahoo Mail service), (b) has a file size
no greater than 30K, (c) has a width not to exceed 425 pixels, (d) does not have
"looped" animation, (e) does not have any animation longer than six seconds, (f)
does not contain Java, JavaScript, frames, ActiveX, dynamic HTML or background
colors, (g) is free from technical errors and passes the "weblint validation
checker" (or similar tool utilized by Yahoo), (h) addresses users as Yahoo!
Delivers Members (e.g. An exclusive offer for Yahoo! Delivers members.), and (i)
contain the following subject line: "Yahoo! Delivers: A Special Offer from
Global Sports." This offer shall be an exclusive offer to Yahoo! Delivers
Members. In addition, the Global Sports E-Mail shall comply in all respects with
Yahoo's standard guidelines for such promotions as set forth in Exhibit_O which,
together with the Global Sports E-Mail specifications set forth above, may be
modified by Yahoo at its sole discretion.
"Global Sports [*] Module" shall mean an advertising promotion
substantially similar in form as that set forth on Exhibit B that: (a) has
dimensions no larger than 100 pixels wide by 67 pixels high, (b) does not
contain animation, (c) has a file size of no greater than 2K, (d) is a JPEG
formatted file, (e) describes an offer directly related to the sport referenced
on the Page on which the Global Sports [*] Module appears, and (f) will permit
users to navigate directly to a Page on the Global Sports Site dedicated to
Sports Merchandise.
"Global Sports [*] Promotion" shall mean a promotion that will include the
Global Sports [*] Promotion Banner and in all cases comply with Yahoo's current
[*] promotion guidelines set forth at: [*] (for promotions hosted by Global
Sports) or [*] (for promotions hosted by Yahoo).
"Global Sports [*] Promotion Banner" shall mean a promotion substantially
similar in form as that set forth on Exhibit B that complies with Yahoo's
current [*] promotion banner specifications as detailed in the applicable urls
set forth in the definition of Global Sports [*] Promotion.
"Global Sports [*] Sponsorship" shall mean an advertising promotion
substantially similar in form as that set forth on Exhibit B offered in
connection with specific Games that is comprised of the following elements: (a)
[*], (ii) has a file size no greater that 2K, (iii) contains no animation, and
(iv) links to a Page on the Global Sports Site dedicated to Sports Merchandise;
and (b) a GIF or JPEG integrated into the user experience that is (i) 300 pixels
wide and 150 pixels tall, (ii) no larger than 12K in file size, (iii) contains
no more than six seconds of animation (with no looping), and links to a Page on
the Global Sports Site dedicated to Sports Merchandise. The elements referenced
in clauses (a) and (c) above shall appear on each Page devoted to coverage of
the applicable Game.
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"Global Sports [*] Module" shall mean an advertising promotion
substantially similar in form as that set forth on Exhibit B that contains one
of the following elements, as mutually agreed by the parties:
(a) a graphical image that (i) has dimensions no larger than 88 pixels
wide by 31 pixels high, (ii) is no greater in file size than 2K,
(iii) contains no animation, and (iv) has three text links below the
image, each of which will consist of no more than 15 characters
(including spaces). The image and the text links will permit users
to navigate directly to a Page on a Global Sports Site dedicated to
Sports Merchandise.
(b) a graphical image that (i) has dimensions no larger than 120 pixels
wide by 90 pixels high, (ii) is no greater in file size than 4K,
(iii) contains no animation, and (iv) has one text link below the
image which will consist of no more than 15 characters (including
spaces). The image and the text links will permit users to navigate
directly to a Page on a Global Sports Site dedicated to Sports
Merchandise.
"Global Sports Link" shall mean any Link to the Global Sports Site or
Global Sports RMI Site placed by Yahoo under and in accordance with this
Agreement.
"Global Sports [*]" shall mean an advertising promotion substantially
similar in form as that set forth on Exhibit B that: (a) has dimensions no
larger than 60 pixels wide by 60 pixels high, (b) does not contain animation,
(c) has a file size of no greater than 2.5K, (d) is a JPEG formatted file, (e)
contains not more than 40 characters of text description (including spaces) and
(f) will permit users to navigate directly to a Page on a Global Sports Site
dedicated to the on-line purchase of Sports Merchandise.
"Global Sports [*] Module" shall mean a link similar in form as that set
forth on Exhibit B that: (a) promotes the on-line sale of Sports Merchandise,
(b) has dimensions no larger than 120 pixels wide by 120 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 12K, and (f) will permit users
to navigate directly to a Page on a Global Sports Site dedicated to Sports
Merchandise.
"Global Sports News Banner" shall mean the Global Sports Banner delivered
on certain Pages throughout Yahoo News.
"Global Sports [*] Module" shall mean a custom designed advertising unit
mutually agreed upon by the parties; provided that, such advertising unit shall
in all respects comply with Yahoo's standard advertising specifications and the
"look and feel" of Yahoo News.
"Global Sports [*] Sponsorship" shall mean an advertising promotion
offered in connection with Yahoo! [*] that: (a) promotes the on-line sale of
Sports Merchandise, (b) has dimensions no larger than 120 pixels wide by 90
pixels high, (c) does not have any animation, (d) has a file size of no greater
than 4K, (e) has a single text links below the image, which will consist of no
more than 26 characters (including spaces), and (f) will permit users to
navigate directly to a Page on a Global Sports Site relating to the Global
Sports [*] Sponsorship content.
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"Global Sports [*] Sponsorship" shall mean an advertising promotion
substantially similar in form as that set forth on Exhibit B offered in
connection with specific Sports Events that is comprised of the following
elements: (a) a [*] that (i) is 170 pixels in width by 40 pixels in height, (ii)
has a file size no greater that 2K, (iii) contains no animation, and (iv) links
to the Global Sports Site; (b) a [*] that is (i) 150 pixels wide and 15 pixels
tall, (ii) no larger than 1.5K in file size, (iii) contains no animation, and
links to the Global Sports Site; and (c) a Global Sports Banner. The elements
referenced in clauses (a) and (c) above shall appear on each Page devoted to
coverage of the applicable Sports Event.
"Global Sports Retailer" shall mean the branded merchandisers of sports
merchandise with whom Global Sports has entered into online marketing
relationships as set forth and subject to the qualifications on Exhibit F.
Global Sports will have the right to add other branded merchandisers of sports
merchandise with whom Global Sports enters into online marketing relationships
to Exhibit F during the Term subject to Yahoo's prior written approval which
shall not be unreasonably withheld. For clarity, only those merchandisers set
forth on Exhibit F will be promoted under this Agreement unless and until Yahoo
approves the addition of new merchandisers and such merchandisers are included
in Yahoo's Remote Merchant Integration Program.
"Global Sports Revenue" shall mean the sum of the aggregate revenue
received by or on behalf of Global Sports from the sale of Sports Merchandise to
a user who arrived on the Merchant Pages (as defined in the Yahoo! Remote
Merchant Integration Agreement attached hereto as Exhibit G) through a Global
Sports Link during the same on-line session, less shipping and handling,
shipping insurance charges, amounts collected for sales or use or other
applicable taxes or duties, credit card processing fees, and refunds, rebates
paid, and chargebacks for returned or canceled goods or services. For clarity,
it is understood that Global Sports Revenue does not include revenue from sales
made through the Global Sports Site (as opposed to the Merchant Pages, which are
displayed by Yahoo through a proxy server).
"Global Sports RMI Site" shall mean any web site that is operated by
Global Sports on behalf of Global Sports or a Global Sports Retailer and has
been included in Yahoo's Remote Merchant Integration Program and is primarily
dedicated to the on-line purchase of Sports Merchandise.
"Global Sports Shopping Banner" shall mean an advertising promotion
substantially similar in form as the Global Sports Banner that: (a) promotes the
online sale of the Sports Merchandise featured on the Global Sports Shopping
Search Results Pages on which the Global Sports Banner appears, (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 a Global Sports RMI Site relevant to the Global Sports
Shopping Banner's content.
"Global Sports Shopping Keywords" shall mean those keywords identified as
such on Exhibit A; provided that, Global Sports shall be permitted to substitute
any such keyword for a comparable keyword subject to availability and Yahoo's
approval; and provided further that, Yahoo may substitute any Global Sports
Shopping Keyword for a comparable keyword (based
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on projected Page Views) in the event that it determines, in its sole
discretion, that such substitution is necessary to avoid liability for
third-party claims relating to a Global Sports Shopping Keyword's use.
"Global Sports Shopping Search Results Pages" shall mean those Pages
displayed upon a user's search of Yahoo Shopping for a Global Sports Shopping
Keyword.
"Global Sports Site" shall mean any web site that is operated by Global
Sports on behalf of Global Sports or a Global Sports Retailer and is primarily
dedicated to the on-line purchase of Sports Merchandise.
"Independent, Industry-Recognized Third Party" shall mean a three person
panel chosen as follows: each party shall choose one individual and the two
individuals so chosen shall together choose a third individual, with the three
chosen individuals serving together as the Independent, Industry-Recognized
Third Party.
"Launch Date" shall mean the first date on which Yahoo: (i) activates a
Global Sports Button and fixed advertising unit of the Global Sports [*]
Sponsorship; and (ii) inserts the Global Sports Banner into Yahoo's advertising
rotation system.
"Link" or "link" means a visible graphic or textual indication located
within a Page which, when selected by a user, directs the user's internet
browser connection onward to a specified Page on the same or any other web site
via a uniform resource locator (whether perceptible or not) and which
establishes a direct connection between the browser and the new Page.
"Page" means any World Wide Web page (or, for online media other than Web
sites, the equivalent unit of the relevant protocol).
"Page View" shall mean a user's request for a Page as measured by Yahoo's
advertising reporting system.
"Paid Advertising" shall mean third-party promotions for which Yahoo
receives compensation (either in the form of cash or barter) from the party
being promoted (or a third-party acting on behalf of such promoted party).
"Quarter" means a three-month period beginning on the Launch Date or any
date that is a multiple of three months after the Launch Date (e.g., if the
Launch Date is November 1, any three month period beginning on November 1,
February 1, May 1, or August 1).
"Sports Events" shall mean those sports-related events set forth on
Exhibit E.
"Sports Memorabilia" shall mean Sports Merchandise that is unique and
worthy of remembrance.
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"Sports Merchandise" shall mean sports-related equipment (e.g., bats,
balls, exercise equipment, team sports equipment, golf equipment), sports
related clothing (e.g., team jerseys, footwear and exercise clothing) and other
sports related products typically available in sporting goods stores. Sports
Merchandise shall not be deemed to include any: (i) books (in print, electronic,
or audio form), (ii) videos, (iii) compact discs, (iv) computer software, (v)
items not typically found in a sporting goods store, or (vi) Sports Memorabilia.
Notwithstanding the foregoing and anything else to the contrary in this
Agreement, "Sports Merchandise" shall be deemed to include Sports Memorabilia
for the purpose of permitting Global Sports to: (a) sell Sports Memorabilia on
the Global Sports Site and the Global Sports RMI Site, and (b) promote Sports
Memorabilia through the Global Sports Links. Further, subject to the criteria
set forth elsewhere in this Agreement (for example, that certain Global Sports
Links must link directly to a Page dedicated to Sports Merchandise) the parties
agree that nothing in this Agreement is intended to limit or restrict in any
manner the products that Global Sports and the Global Sports Retailers may offer
for sale and sell through the Global Sports Site.
"Sports Merchandise Merchant" shall mean an entity, [*] that derives at
least fifty percent (50%) of its revenue through the sale of Sports Merchandise.
"Sports Merchandise Merchant Program" shall mean Yahoo's program
consisting of certain sports-related marketing, advertising and promotional
activities as further described in this Agreement.
"Term" shall mean the period beginning on the Effective Date and
continuing for a period of fifteen (15) months following the Launch Date (e.g.,
if the Launch Date is November 3, 1999, the Term shall extend through February
3, 2001), or until this Agreement is otherwise terminated pursuant to Section
14.
"Yahoo Alerts" shall mean that Yahoo service whereby Yahoo registered
users may choose to be automatically notified via e-mail messages about certain
topics, products or services.
"Yahoo Brand Features" shall mean the trademarks, service marks, logos and
other distinctive brand features of Yahoo.
"Yahoo Clubs" shall mean Yahoo's U.S. targeted clubs property currently
located at http://clubs.yahoo.com.
"Yahoo GeoCities" shall mean Yahoo's U.S. targeted community based website
currently located at http://geocities.yahoo.com.
"Yahoo GeoCities Affiliate Program" shall mean that program where
homesteaders on Yahoo GeoCities have an opportunity to place a link on their
homestead to participating merchants web sites in return for payments from such
participating merchants.
"Yahoo Get Local" shall mean Yahoo's U.S. targeted localized community
directory property.
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"Yahoo Main Site" shall mean Yahoo's principal U.S. targeted directory to
the World Wide Web currently located at http://www.yahoo.com and does not
include any: (i) international targeted web sites within the yahoo.com domain
(e.g., http://espanol.yahoo.com), (ii) any Yahoo Properties not within the
yahoo.com domain (e.g., http://www.broadcast.com), or (iii) any web sites not
currently within the yahoo.com domain that Yahoo may add during the Term.
"Yahoo Message Boards" shall mean Yahoo's U.S. targeted message board
property currently located at http://messages.yahoo.com.
"Yahoo News" shall mean Yahoo's principal U.S. targeted news property
currently located at http://dailynews.yahoo.com.
"Yahoo Outdoors" shall mean Yahoo's U.S. targeted outdoors property that
Yahoo intends to develop locate at http://outdoors.yahoo.com.
"Yahoo Points" shall mean that promotional program that Yahoo intends to
develop whereby Yahoo users earn points that can be redeemed for merchandise
contributed by participating merchants.
"Yahoo Properties" shall mean any Yahoo branded or co-branded media
properties, including, without limitation, Internet guides, that are developed
in whole or in part by Yahoo or its affiliates.
"Yahoo's Remote Merchant Integration Program" shall mean that program
through which Yahoo integrates the web sites of remote on-line merchants into
Yahoo Shopping.
"Yahoo's Remote Merchant Integration Program Agreement" shall mean the
agreement set forth on Exhibit G.
"Yahoo Shopping" shall mean Yahoo's U.S. targeted shopping property
currently located at http://shopping.yahoo.com.
"Yahoo Shopping Front Page Anchor Position" shall mean an advertising
placement comprised of the following element which will not contain animation: a
rotating advertising unit no larger than 120 pixels wide by 30 pixels high, with
a file size no more than 2K, and a Global Sports Brand Feature that will permit
users to navigate directly to a Page in the Global Sports RMI Site.
"Yahoo Shopping Outdoors Text Link" shall mean a text link substantially
similar in form to that set forth in Exhibit B, that: (i) is displayed on Yahoo
Outdoors and promotes, on a rotating basis, individual Global Sports Retailers;
and (ii) links to a Page within Yahoo Shopping's sports category.
"Yahoo Shopping Sports Text Link" shall mean a text link substantially
similar in form to that set forth in Exhibit B, that: (i) Yahoo will use
commercially reasonable efforts to ensure is
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always displayed on Yahoo Sports (except Yahoo fantasy sports registration Pages
and game channel application Pages) and promotes, on a rotating basis,
individual Global Sports Retailers (and only Global Sports Retailers); and (ii)
links directly to a Page within Yahoo Shopping's sports and recreation category.
"Yahoo Sports" shall mean Yahoo's U.S. targeted sports property currently
located at http://sports.yahoo.com.
"Yahoo U.S. Targeted Property" shall mean the Yahoo Main Site and Yahoo
GeoCities.
2. Global Sports Banner, News Banner and [*] Promotion.
2.1 Yahoo will provide the Global Sports Banner, on a rotating basis
until its Page View obligations are met, in the North banner
position on the Global Sports Banner Pages.
2.2 Yahoo will provide the Global Sports News Banner on a rotating basis
until its Page View obligations are met.
2.3 Yahoo shall provide one Global Sports [*] Promotion per Quarter of
the Term.
3. Global Sports Button.
Yahoo will provide the Global Sports Button on the Global Sports Button
Pages until its Page View obligations are met. The parties acknowledge and
agree that the Global Sports Button's placement on the Global Sports
Button Pages shall [*] with the buttons of any other merchants displayed
on such Pages (subject to Section 11). Yahoo shall provide up to three (3)
text links to accompany the Global Sports Button on the Global Sports
Button Pages. In no case shall any Global Sports Button text link exceed
sixteen (16) characters (including spaces). Further, each Global Sports
Button text link shall promote Sports Merchandise and permit users to
navigate via a link directly to a Page on a Global Sports Site relating to
the Sports Merchandise relevant to the Global Sports Button Page on which
such text link appears.
4. Global Sports [*] Sponsorship and Related Opportunities.
4.1 Yahoo shall provide the Global Sports [*] Sponsorship within the [*]
(or similarly named) category of Yahoo Shopping throughout the Term.
Within such Yahoo Shopping category search results Pages, Yahoo
shall provide those Global Sports Retailers' products that match
directly user's search queries, listing prominence over all other
Sports Merchandise Merchants products.
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4.2 [*] charge beyond that set forth in this Agreement, pursuant to
Yahoo's standard applicable terms and conditions (i) Yahoo shall
provide Global Sports the opportunity to participate, in Yahoo
Alerts, Yahoo Points, and in the Yahoo Shopping Front Page Anchor
Position on a rotating basis; and (ii) Global Sports shall
participate in the Yahoo GeoCities Affiliate Program.
5. Global Sports Category Text Link, Yahoo Shopping Sports Text Link and Yahoo
Shopping Outdoors Text Link.
5.1 Yahoo will provide the Global Sports Category Text Link, on a
rotating basis until its Page View obligations are met, on the
Global Sports Category Text Link Pages.
5.2 Yahoo will provide the Yahoo Shopping Sports Text Link throughout
the Term.
5.3 Yahoo will provide the Yahoo Shopping Outdoors Text Link throughout
the Term.
6. Global Sports [*] Module, [*] Module, [*] Module, [*] Module and [*] Module.
6.1 Yahoo will provide the Global Sports [*] Module, on a rotating basis
until its Page View obligations are met, in the East module position
on Pages within Yahoo Sports that comprise Yahoo's [*].
6.2 Yahoo will provide the Global Sports [*] Module, on a rotating basis
until its Page View obligations are met, in the East module position
throughout Pages in Yahoo Get Local.
6.3 Yahoo will provide the Global Sports [*] Module, on a rotating basis
until its Page View obligations are met, in the West module position
throughout Pages in Yahoo Clubs.
6.4 Yahoo will provide the Global Sports [*] Module, on a rotating basis
until its Page View obligations are met, in the East module position
throughout Pages in Yahoo Message Boards.
6.5 Yahoo will provide the Global Sports [*] Module, on a rotating basis
until its Page View obligations are met, within Yahoo News.
7. Global Sports [*] and Global Sports Shopping Banner.
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7.1 Yahoo will provide the Global Sports [*], on a rotating basis until
its Page View obligations are met, on the index pages of each of the
sports included in Yahoo Sports (e.g. the index page for the NFL,
http://sports.yahoo.com/nfl/).
7.2 Yahoo shall provide the Global Sports Shopping Banner on the Global
Sports Shopping Search Results Pages throughout the Term.
8. Global Sports [*] Sponsorship, [*] Sponsorship, [*] Sponsorship and [*]
Sponsorship.
8.1 Yahoo shall provide the Global Sports [*] Sponsorship throughout the
Term.
8.2 Yahoo shall provide the Global Sports [*] Sponsorship on a rotating
basis within coverage in Yahoo Sports for the Sports Events until
its Page View obligations are met.
8.3 Yahoo shall provide the Global Sports [*] Sponsorship throughout the
Term.
8.4 During the Term, Yahoo will provide the Global Sports [*]
Sponsorship in connection with two (2) chat events per each of the
Global Sports Chat Athletes (for a total of 12 chat events during
the Term).
9. Global Sports E-Mail.
During the Term, Yahoo will deliver [*] Global Sports E-Mails through the
Yahoo! Delivers program. In all cases, Global Sports E-Mails shall be
delivered only (x) to those registered users of Yahoo's U.S. targeted
e-mail service that have indicated during the registration process for
such service a willingness to receive promotional solicitations via Yahoo
Mail; and (y) in accordance with Yahoo's privacy policy. The text of the
Global Sports E-Mail shall be provided by Global Sports, consistent with
Yahoo's standard policies and guidelines for such messages as set forth in
Exhibit O, and shall be subject to Yahoo's prior approval (which shall not
be unreasonably withheld). Yahoo will provide Global Sports with three
agreed-upon attributes (e.g., age, gender, occupation) that may be used to
target to registered users who receive the Global Sports E-Mails.
10. Implementation.
10.1 Subject to the provisions of this Agreement, Yahoo will be solely
responsible for the user interface and serving of the Global Sports
Links and Global Sports E-Mail, and Global Sports shall be solely
responsible for and shall provide Yahoo with all artwork and design
elements of the Global Sports Links and Global Sports E-Mail. Prior
to the Launch Date, Yahoo shall designate an account manager (which
shall be subject to change at Yahoo's discretion) to manage the
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implementation of the Global Sports Links and serve as a liaison
between Global Sports and Yahoo during the Term.
10.2 Yahoo reserves the right, at any time, to redesign or modify the
organization, structure, specifications, "look and feel,"
navigation, guidelines and other elements of the Global Sports Links
and/or any Yahoo Property on which the Global Sports Links are
displayed or otherwise. In the event such a modification materially
and adversely affects any specific Global Sports Link, Yahoo will
provide Global Sports, as its sole remedy, a comparable promotional
placement on the Yahoo Properties mutually agreed upon by the
parties. In the event that the parties are unable to reach agreement
with respect to the implementation of this Section 10.2, the parties
shall appoint an Independent, Industry-Recognized Third Party to
resolve the matter. All fees and expenses of an Independent,
Industry-Recognized Third Party appointed pursuant to this Section
14.1 shall be shared equally be both parties.
10.3 Global Sports shall execute the Remote Merchant Integration Program
Agreement in its own name on behalf of itself and the Global Sports
Retailers as of the Effective Date. During the Term, Global Sports
shall adhere to the terms set forth therein, and shall ensure that
the Global Sports Retailers adhere to the terms set forth therein
and in this Agreement. Global Sports represents and warrants that it
has the right to enter into the Remote Merchant Integration Program
Agreement and this Agreement in its own name on behalf of itself and
the Global Sports Retailers.
10.4 Global Sports shall provide Yahoo all URLs, URL formats (as
applicable), content, and other materials necessary for Yahoo to
provide the Global Sports Links and Global Sports E-Mail (the
"Global Sports Deliverables") on or before the Global Sports
Deliverables Due Date. All content and material contained in the
Global Sports Links and Global Sports E-Mail shall be subject to
Yahoo's approval, which shall not be unreasonably withheld, and must
comply with all applicable federal, state and local laws, rules and
regulations, including, without limitation, consumer protection laws
and rules and regulations governing product claims, truth in
labeling, and false advertising. Yahoo shall activate the Global
Sports Links within twenty (20) days of its receipt of the Global
Sports Deliverables. It is understood and agreed that as between
Yahoo and Global Sports, Global Sports will determine, in its sole
discretion, which of the Global Sports Retailers are promoted by
means of those Global Sports Links that link to the Global Sports
Site. Furthermore, subject to the criteria set forth elsewhere in
this Agreement (for example, that certain Global Sports Links must
link directly to a Page dedicated to Sports Merchandise), Global
Sports will determine which Page within the Global Sports Site is
linked to directly from each Global Sports Link. It is understood
and agreed that: (i) Global Sports shall make available no less than
the following four (4) Global Sports Retailers for promotion through
the Global Sports [*] Sponsorship: The Athletes Foot, Michigan
Sporting Goods Distributors, Inc., Sport Chalet, and The Sports
Authority; and (ii) all of the
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Global Sports Retailers shall participate in the Yahoo Remote
Merchant Integration Program.
10.5 (a) Global Sports hereby grants to Yahoo a non-exclusive, worldwide,
fully paid, revocable license during the Term to use, reproduce and
display the Global Sports Brand Features (i) to indicate the
location of the Global Sports Links as set forth herein and (ii) in
connection with the marketing and promotion of Global Sports and/or
the Global Sports Retailers in the Yahoo Properties. All use of the
Global Sports Brand Features by Yahoo hereunder will inure solely to
the benefit of Global Sports and the Global Sports Retailers. Except
for the limited license granted above, Global Sports and the Global
Sports Retailers retain all right, title, and interest in and to the
Global Sports Brand Features, and Yahoo agrees that it will do
nothing inconsistent with their ownership of the Global Sports Brand
Features. Without limiting the generality of the foregoing, Yahoo
agrees that it will not use any Global Sports Brand Features other
than in accordance with the terms of this Agreement.
(b) Yahoo hereby grants to Global Sports a non-exclusive, worldwide,
fully paid, revocable license during the Term to use, reproduce and
display the Yahoo Brand Features (i) pursuant to Section 10.7 and
(ii) in connection with Global Sports' furnishing of the Barter
Media. All use of the Yahoo Brand Features by Global Sports
hereunder will inure solely to the benefit of Yahoo. Except for the
limited license granted above, Yahoo retains all right, title, and
interest in and to the Yahoo Brand Features, and Global Sports
agrees that it will do nothing inconsistent with Yahoo's ownership
of the Yahoo Brand Features. Without limiting the generality of the
foregoing, Global Sports agrees that it will not use any Yahoo Brand
Feature other than in accordance with the terms of this Agreement.
10.6 [*]
10.7 Global Sports shall place a Yahoo graphic link on those Pages of the
Global Sports Sites to which users click-through from any link
Global Sports Link. Such Yahoo graphic link shall (a) be placed in a
manner determined by Global Sports that is acceptable to Yahoo, (b)
contain the Yahoo name and logo as provided by Yahoo, (c) directly
link the user back to a Page designated by Yahoo on the Yahoo
Properties, and (d) not necessarily appear to users who do not
arrive at the Global Sports Site directly through a Global Sports
Link.
10.8 Global Sports shall design and operate the Global Sports Site to (i)
handle [*] simultaneous requests, (ii) have a minimum [*] uptime and
maximum [*] downtime per Quarter (except for planned downtime which
may be required for system enhancements, upgrades and preventative
maintenance), and (iii) ensure that the Global Sports Site's data
transfers to the Yahoo Main Site initiate within fewer than eight
(8) seconds, on average, of request.
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11. [*]
11.1 [*]
11.2 [*]
11.3 [*]
11.4 [*]
12. Page Views.
12.1 With respect to the Global Sports Links, Yahoo shall deliver a
minimum of [*] Page Views (for clarity, such total shall not include
Page Views of the Global Sports [*] Sponsorship, Global Sports [*]
Sponsorship, Global Sports [*] Sponsorship, Global Sports [*]
Sponsorship). Yahoo will use commercially reasonable efforts to
deliver such Page Views evenly throughout the Term provided that
Yahoo has the ability to influence and control the delivery of such
Page View (e.g., Yahoo does not have the ability to influence and
control the allocation of Page Views in connection with seasonal
sporting events or front page promotions).
12.2 Yahoo will deliver such Page Views as follows:
o [*] Page Views of the Global Sports [*] Module, Global Sports
[*] Promotion, and/or Global Sports [*] Module; provided that,
Yahoo agrees to use commercially reasonable efforts to deliver
the Page Views as follows: [*] Page Views of the Global Sports
[*] Module, [*] Page Views of the Global Sports [*] Promotion,
and [*] Page Views of the Global Sports [*] Module;
o [*] Page Views of the Global Sports Button and/or Global
Sports Banner; provided that, Yahoo agrees to use commercially
reasonable efforts to deliver the Page Views as follows: [*]
Page Views of the Global Sports Button and [*] Page Views of
the Global Sports Banner;
o [*] Page Views of the Global Sports [*] and/or Global Sports
[*] Sponsorship; provided that, Yahoo agrees to use
commercially reasonable efforts to deliver the Page Views as
follows: [*] Page Views of the Global Sports [*], and [*] Page
Views of the Global Sports [*] Sponsorship;
o [*] Page Views of the Global Sports [*] Module;
o [*] Page Views of the Global Sports [*] Promotion Banner;
o [*] Page Views of the Global Sports Category Text Link;
o [*] Page Views of the Global Sports [*] Module and/or Global
Sports News Banner provided that, Yahoo agrees to use
commercially reasonable efforts to
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deliver the Page Views as follows: [*] Page Views of the
Global Sports [*] Module and [*] Page Views of the Global
Sports News Banner; and
o [*] Page Views of the Yahoo Shopping Sports Text Link and/or
Yahoo Shopping Outdoors Text Link; provided that, Yahoo agrees
to use commercially reasonable efforts to deliver the Page
Views as follows: [*] Page Views of the Yahoo Shopping Sports
Text Link and [*] Page Views of the Yahoo Shopping Outdoors
Text Link.
12.3 In the event that Yahoo fails to deliver the minimum number of Page
Views as set forth above at the expiration of the Term, Yahoo will
"make good" the shortfall within [*] after the end of the Term until
such Page View obligation is satisfied. If Yahoo is unable to
fulfill its Page View obligations through the original promotion
during this additional period, Yahoo will then have an additional
[*] to deliver the required number of Page Views through a
comparable promotion acceptable to Global Sports (such three month
period, together with the six month period described in the
preceding sentence, being referred to collectively as the "Make Good
Period"). The provisions set forth in this Section 12.3 set forth
the entire liability of Yahoo, and Global Sports' sole remedy, for
Yahoo's breach of its Page View obligations set forth in Sections
12.1 and 12.2 during the Term. [*]
12.4 In the event that Global Sports desires to substitute portions of
the promotions set forth in this Agreement (the "Swap Inventory")
for alternative promotions in the Yahoo Main Site, Yahoo shall use
commercially reasonable efforts to accommodate such request (a
"Change Request") based on inventory availability; provided that,
Global Sports agrees that (i) it shall make no Change Requests prior
to the date that is [*] after the Launch Date; (ii) it shall make no
more than [*] Change Request per each Quarter of the Term; (iii) no
Change Request shall involve altering more than [*] of any Swap
Inventory scheduled for a given Quarter (e.g., if Yahoo has
scheduled delivery of [*] Page Views of the Global Sports Banner for
a given Quarter of the Term, a Change Request may involve the
substitution of no more than [*] Page Views of the Global Sports
Banner for such Quarter); (iv) Global Sports shall provide Yahoo no
less than [*] written notice prior to the date it desires any Change
Request to take effect; and (v) any substitute inventory delivered
by Yahoo pursuant to a Change Request shall be scheduled for
delivery (x) within [*] of the month in which such inventory was
originally scheduled, and (y) within the Term.
12.5 For purposes of determining the amount of inventory, specifications
and placement that may be substituted for Swap Inventory pursuant to
a Change Request, the Swap Inventory shall be valued, on a pro-rata
basis, in a manner mutually agreed upon by the parties. The
substitute inventory shall be valued in a manner mutually agreed
upon by the parties. In the event that the parties cannot mutually
agree on valuations to be determined pursuant to this Section 12.5,
then the Change Request relating to such valuations shall be deemed
withdrawn.
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12.6 During the Term, Yahoo will provide Global Sports access to an
electronic database that tracks the delivery of Page Views under
this Agreement. Such database will be updated in accordance with
Yahoo's standard updating procedures at least once per Quarter.
13. Compensation.
13.1 In consideration of Yahoo's performance and obligations as set forth
herein, Global Sports will compensate Yahoo in an amount equal to
[*) as set forth below. Solely for the purpose of Global Sports
calculating costs associated with the Global Sports Retailers'
cooperative marketing fund, the parties agree that the cpm
associated with the Global Sports Links promoted in this Agreement
is [*]; provided that, under no circumstances shall such figure (i)
have any bearing on the relationship between Yahoo on the one hand
and Global Sports or the Global Sports Retailers on the other hand
(whether in case of a breach or termination of this Agreement, or
otherwise), or (ii) be used for any other purpose (e.g., reselling
inventory, which is not permitted under this Agreement).
13.2 Set Up Fee. In consideration of Yahoo's design, consultation and
development of the Global Sports Links, Global Sports shall pay to
Yahoo a non-refundable, non-creditable fee of [*] (the "Set-Up
Fee"). The Set-Up Fee shall be due and paid by Global Sports on the
Effective Date.
13.3 [*] Fee. In consideration of Yahoo's performance and obligations as
set forth in Section 11, Global Sports will pay Yahoo a
non-refundable, non-creditable fee equal to [*]. Such fee shall be
due and paid to Yahoo as follows: (i) [*] on October 15, 1999; (ii)
[*] on January 15, 2000; (iii) [*] on April 15, 2000; (iv) [*] on
July 15, 2000; and (v) [*] on October 15, 2000.
13.4 Slotting Fee. In consideration of Yahoo's performance and
obligations as set forth in Sections 2 through 9, Global Sports will
pay Yahoo a non-refundable, non-creditable fee equal to [*]. Such
fee shall be due and paid to Yahoo as follows: (i) [*] on October
15, 1999; (ii) [*] on January 15, 2000; (iii) [*] on April 15, 2000;
(iv) [*] on July 15, 2000; and (v) [*] on October 15, 2000.
13.5 Revenue Share. In addition to the fees set forth in Sections 13.2
through 13.4 above, Global Sports shall pay to Yahoo a
non-refundable, non-creditable fee equal to [*] percent of any
Global Sports Revenue earned during the Term (the "Revenue Share
Fee"). In accordance with the definition of Global Sports Revenue,
it is understood that Global Sports Revenue does not include revenue
from sales made through the Global Sports Site (as opposed to the
Merchant Pages, which are displayed by Yahoo through a proxy
server). The Revenue Share Fee shall be paid by Global Sports to
Yahoo on a quarterly basis within thirty (30) days following the
last day of each calendar quarter of the Term. The Revenue Share Fee
payments will be accompanied by a written report that
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includes: (i) the total dollar amount of Global Sports Revenue
earned during the applicable period, and (ii) a calculation of the
Revenue Share Fee.
13.6 Payment Information. All payments herein are non-refundable and
non-creditable and shall be made by Global Sports via wire transfer
into Yahoo's main account pursuant to the wire transfer instructions
set forth on Exhibit C.
13.7 Late Payments. Any portion of the above payments which has not been
paid to Yahoo within fifteen (15) days of the dates set forth above
shall bear interest at the lesser of (i) one percent (1%) per month
or (ii) the maximum amount allowed by law. Notwithstanding the
foregoing, any failure by Global Sports to make the payments
specified in Sections 13.2 through 13.5 on the dates set forth
therein shall constitute a material breach of this Agreement.
13.8 Audit Rights. Global Sports shall maintain records of all activities
relating to the Revenue Share Fee. Global Sports shall permit a
reputable independent certified public accounting firm designated by
Yahoo and reasonably acceptable to Global Sports to have access, at
a mutually agreed upon time during normal business hours, to its
records and books of account that relate to the Revenue Share Fee.
Such audits shall not be required more often than once every twelve
(12) month period of the Term, provided, however, that Yahoo may
audit Global Sports within three (3) months of any audit in which a
discrepancy of ten percent (10%) or greater is discovered. If such a
discrepancy is discovered, Global Sports shall pay the amount of the
error to Yahoo within ten (10) days of such error's discovery. Yahoo
will pay the cost of any audit conducted pursuant to this Section
13.8, provided, however, that if a discrepancy of ten percent (10%)
or greater is discovered through any such audit, Global Sports shall
pay such audit's costs. At Global Sports' request, Yahoo will
require the accounting firm to sign a standard confidentiality
agreement acceptable in form and substance to Global Sports, and the
results of any such audit will be considered confidential
information of both parties subject to the Mutual Nondisclosure
Agreement Terms attached hereto as Exhibit D.
13.9 Barter Media. During the Term, Global Sports shall provide Yahoo no
less than [*] of Barter Media. The Barter Media's delivery and value
shall be mutually agreed upon by the parties in accordance with the
terms attached as Exhibit L. In the event that Global Sports
terminates this Agreement pursuant to Section 14.4, Global Sports
agrees to continue to provide the Barter Media until the value of
Barter Media delivered before and after such termination equals or
exceeds the Square-Up Amount. The "Square-Up Amount" will be an
amount equal to the pro-rata value of cash due to Yahoo pursuant to
Sections 13.3 and 13.4 as of the date of such termination (e.g., if
the Section 14.4(a) Termination Date (as defined in Section 14,4(a))
is May 15, 2000, Yahoo shall be due [*] of Barter Media). If the
parties are unable to reach agreement on the value of the Barter
Media delivered, such value shall be determined by an Independent,
Industry-Recognized Third Party, the cost for which will be shared
equally by the parties.
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14. Termination.
14.1 Term. This Agreement shall commence upon the Effective Date and,
unless terminated as provided herein, shall remain in effect for the
Term.
14.2 Termination by Either Party with Cause. This Agreement may be
terminated at any time by either party: (i) immediately upon written
notice if the other party: (a) becomes insolvent; (b) files a
petition in bankruptcy; or (c) makes an assignment for the benefit
of its creditors; or (ii) thirty (30) days after written notice to
the other party of such other party's breach of any of its
obligations under this Agreement in any material respect (ten (10)
days in the case of a failure to pay), which breach is not remedied
within such notice period. In the event that Yahoo provides a notice
of termination under clause (ii) above, Yahoo shall have the right
to suspend performance under Sections 2 - 8 of this Agreement for
the notice period unless and until the breach is fully remedied by
Global Sports prior to the expiration of the notice period.
14.3 Termination by Yahoo. In addition to its termination rights under
Section 14.2, Yahoo may terminate this Agreement upon forty five
(45) days written notice to Global Sports if at any time during the
Term an Independent, Industry-Recognized Third Party appointed at
the request of Yahoo determines that the Global Sports Site (for
this purpose, taking all of the sites that constitute the Global
Sports Site as one site) is no longer one of the top five (5) sites
for the on-line sale of Sports Merchandise in the United States over
a reasonable period of time based on an evaluation of the following
criteria: (i) the number of brick-and-mortar sporting goods stores
whose products are marketed and sold through the site, (ii) the
annual sales of such stores in the United States, (iii) the amount
of online sales conducted through the site, and (iv) the quality and
selection of the sporting goods products offered for sale by such
stores on the site. Notwithstanding anything to the contrary herein,
Yahoo will pay all fees and expenses of the Independent,
Industry-Recognized Third Party appointed at Yahoo's request for
this purpose. The Independent, Industry-Recognized Third Party shall
submit its determination in writing to both Yahoo and Global Sports
at the same time and shall provide a description of the reasons for
its conclusion and references to the sources of all underlying data.
Each party agrees to provide to the Independent, Industry-Recognized
Third Party all available information and assistance necessary for
the Independent, Industry-Recognized Third Party to undertake the
above described analysis.
14.4 Termination by Global Sports. In addition to its termination rights
under Section 14.2, Global Sports shall have the following
termination rights:
(a) Upon at least ninety (90) days prior written notice to Yahoo,
Global Sports shall have the right to terminate this Agreement
at any time after the date that is [*] days after the Launch
Date (i.e., Global Sports shall have no right to give a
termination notice pursuant to this Section 14.4
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before the date that is ninety (90) days after the Launch
Date). In the event that Global Sports exercises its right to
terminate this Agreement pursuant to this Section 14.4, Global
Sports agrees that for the remainder of the original Term
Global Sports shall continue to participate in the Yahoo
Remote Merchant Integration Program and the Global Sports [*]
Sponsorship on behalf of itself and the Global Sports
Retailers unless Yahoo, in its sole discretion, elects, at any
time, to terminate the participation of Global Sports or any
Global Sports Retailer in such program. Global Sports is
responsible for and shall ensure that all required materials
(including updated creative, merchandising and data feeds)
with respect to any Global Sports Retailer that Yahoo chooses
to retain in the Yahoo Remote Merchant Integration Program are
provided to Yahoo in accordance with the standard Yahoo Remote
Merchant Integration Program specifications, and Global Sports
shall retain the obligation to pay to Yahoo the Revenue Share
Fee set forth in Section 13.5. Upon any termination by Global
Sports under this Section 14.4(a), the parties agree that: (i)
[*]; and (ii) any payments due to Yahoo under Sections 13.3 or
13.4 prior to the effective date of termination shall remain
due and payable on the dates set forth therein, albeit the
amounts shall be pro-rated to the effective date of such a
termination (the " Section 14.4(a) Termination Date") (i.e.,
if the Section 14.4(a) Termination Date is May 15, 2000,
Global Sports' payment due on April 15, 2000 shall be [*] (not
including any other payments due under this Agreement)); and
(iii) in the event that as of the Section 14.4(a) Termination
Date, Yahoo has not delivered, on a pro-rata basis, the number
of Page Views specified in Section 12.2, it shall continue to
deliver such Page Views beyond the Section 14.4(a) Termination
Date until such pro-rata threshold is reached, provided that,
in such case, except with respect to Sections 11, 13.3, and
13.4, the terms of this Agreement shall remain in full force
and effect. For clarity, in the event of a termination of this
Agreement under Section 14.4(a), the parties agree that Global
Sports shall have no additional payment obligations beyond
those set forth in this Agreement as a result of any extra
Page Views delivered over and above the pro-rata amount of
Page Views specified in Section 12.2 as of the Section 14.4(a)
Termination Date.
(b) At any time during the Term, upon forty five (45) days prior
written notice to Yahoo, Global Sports shall have the right to
terminate its participation (and the participation of the
Global Sports Retailers) in the Yahoo Remote Merchant
Integration Program if an Independent, Industry-Recognized
Third Party appointed at the request of Global Sports has
determined that the Yahoo Remote Merchant Integration Program
does not permit a user to seamlessly navigate between and
conduct transactions through Yahoo Shopping and the Global
Sports RMI Site (for this purpose, taking all of the sites
that constitute the Global Sports Site as one site) over a
reasonable period of time. Global Sports will pay all fees and
expenses of the Independent, Industry-Recognized Third Party
appointed at Global Sport's request for this purpose. The
Independent, Industry-Recognized Third Party shall submit its
determination in writing to both Yahoo and Global Sports at
the same time and shall provide
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a description of the reasons for its conclusion and references
to the sources of all underlying data. Each party agrees to
provide to the Independent, Industry-Recognized Third Party
all available information and assistance necessary for the
Independent, Industry-Recognized Third Party to undertake the
above described analysis. Any termination of Global Sports'
(or a Global Sports Retailer's) participation in the Yahoo
Remote Merchant Integration Program shall have no effect on
the remaining provisions of this Agreement and each party's
obligations with respect thereto (including, but not limited
to, Global Sports' payment obligations under Section 13 and
Yahoo's obligations under Section 11); provided that, in the
event of any such termination, Global Sports shall continue to
provide Yahoo all data related to transactions conducted
through Global Sports Links on Yahoo Shopping that would have
been collected without a termination pursuant to this Section
14.4(b).
14.5 Right of First Presentation. Yahoo will provide written notice to
Global Sports (a "Presentment Notice") in the event that: (i) during
the Term, Yahoo intends to create, acquire, develop or otherwise
make available a promotional merchant opportunity on a "Yahoo"
branded web site where Yahoo controls the serving and hosting of
advertising and that targets an audience in the United States
substantially similar in scope and nature to the Sports Merchandise
Merchant Program described in this Agreement, or (ii) during the
Term, Yahoo is willing to renew this Sports Merchandise Merchant
Program on identical terms to those described in this Agreement
immediately upon expiration of the Term. Any Presentment Notice
shall describe Yahoo's reasonable business requirements for the
noticed opportunity. [*] If Global Sports [*] with Yahoo regarding
an opportunity described in a Presentment Notice within [*]
following its receipt thereof, or if the parties [*] within [*]
following the commencement of [*] (or such later date as is agreed
by the parties), Yahoo may [*] (subject to Section 11). Global
Sports acknowledges that under no circumstances shall anything in
this Section 14.4 be deemed to restrict Yahoo's ability to extend
other merchant positions for any opportunity presented pursuant to
this Section 14.4 to third parties.
14.6 Survival. The provisions of Sections 1, 12.3, 13, 14.4(a), 15
through 19, and this Section 14.6 shall survive expiration or
termination of this Agreement.
15. Confidential Information and Publicity.
15.1 Terms and Conditions. The terms and conditions of this Agreement
shall be considered confidential and shall not be disclosed to any
third parties except to such party's accountants, attorneys, or
except as otherwise required by law. Neither party shall make any
public announcement regarding the existence of this Agreement
without the other party's prior written approval and consent. If
this
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Agreement or any of its terms must be disclosed under any law, rule
or regulation (other than an order issued by a court of competent
jurisdiction (e.g., a subpoena)), the disclosing party shall (i)
give written notice of the intended disclosure to the other party at
least five (5) days in advance of the date of disclosure, (ii)
redact portions of this Agreement to the fullest extent permitted
under any applicable laws, rules and regulations, and (iii) submit a
request, to be agreed upon by the other party, that such portions
and other provisions of this Agreement requested by the other party
receive confidential treatment under the laws, rules and regulations
of the body or tribunal to which disclosure is being made or
otherwise be held in the strictest confidence to the fullest extent
permitted under the laws, rules or regulations of any other
applicable governing body.
15.2 Publicity. Any and all publicity relating to this Agreement and
subsequent transactions between Yahoo and Global Sports and the
method of its release shall be approved in advance of the release in
writing by both Yahoo and Global Sports. The parties agree that the
press release attached hereto as Exhibit M may be issued upon the
Effective Date.
15.3 Nondisclosure Agreement. Yahoo and Global Sports acknowledge and
agree to the Mutual Nondisclosure Agreement Terms attached hereto as
Exhibit D with respect to the use and disclosure of all confidential
information and all discussions pertaining to or leading to this
Agreement. For clarity, the parties expressly agree that the terms
of this Agreement (including, but not limited to, the terms set
forth in Sections 11, 12, 13, and 14) shall be considered
confidential information subject to the terms set forth in Exhibit D
(including, but not limited to, paragraph 3).
15.4 User Data. All information and data provided to Yahoo by users of
the Yahoo Properties or otherwise collected by Yahoo relating to
user activity on the Yahoo Properties shall be retained by and owned
solely by Yahoo ("Yahoo User Data"). All information and data
provided to Global Sports through a Global Sports Site or otherwise
collected by Global Sports relating to user activity on a Global
Sports Site shall be retained by and owned solely by Global Sports
("Global Sports User Data" and, collectively with Yahoo User Data,
"User Data"). Each party agrees to either: (a)(i) use User Data only
as affirmatively authorized by the user, (ii) not disclose, sell,
license or otherwise transfer any such User Data to any third party
and (iii) not use any User Data for the transmission of any e-mailed
document or documents consisting of advertising material for the
lease, sale, rental, gift offer, or other disposition of any realty,
goods, services, or extension of credit that meet both of the
following requirements: (1) the documents are addressed to a
recipient with whom the initiator does not have an existing business
or personal relationship; and (2) the documents are not sent at the
request of, or with the express consent of, the recipient; or (b)
become TRUSTe licensed and to use User Data only in strict
accordance with TRUSTe's established policies and procedures and
subject to TRUSTe's oversight. If any user requests,
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or if Yahoo requests at the specific direction of any user, that
Global Sports remove all personally identifiable information
relating to such user from Global Sports' database and other
records, then Global Sports shall promptly remove such personally
identifiable information from its database and other records. For
the purposes of this Section 15.4, "User Data" shall not be deemed
to include aggregate, non-personally identifiable information.
15.5 Privacy of User Information. Global Sports shall ensure that all
information provided by users of a Global Sports Site or Global
Sports RMI Site is maintained, accessed and transmitted in a secure
environment and in compliance with industry standard security
specifications. Global Sports shall provide a link to its policy
regarding the protection of user data on those pages of a Global
Sports Site or Global Sports RMI Site where the user is requested to
provide personal or financial information. Global Sports represents
and warrants that it has reviewed the FTC Order and will not
knowingly engage in any conduct that would cause Yahoo to violate
the FTC Order. Global Sports agrees to follow and comply with all
reasonable instructions and directions of Yahoo to help ensure
Yahoo's compliance with the FTC Order.
16. Indemnification.
16.1 By Global Sports. Global Sports, at its own expense, will indemnify
and hold harmless Yahoo and its employees, representatives, agents
and affiliates, against any claim, suit, action, or other proceeding
brought by a third party against Yahoo (and any resulting liability
or damages incurred by or awarded against Yahoo) based on or arising
from a claim that any Global Sports Brand Feature, any material,
product or service produced, distributed, offered or provided by
Global Sports, or any material presented on the Global Sports Site,
(a) infringes in any manner any copyright, patent, trademark, trade
secret or any other intellectual property right of any third party,
(b) is or contains any material or information that is obscene,
defamatory, libelous, slanderous, or that violates any law or
regulation, (c) is subject to any fees, royalties, licenses or any
other payments to any parties, (d) violates any rights of any person
or entity, including, without limitation, rights of publicity,
privacy or personality, (e) breaches any obligation of Global Sports
under this Agreement, or (f) has resulted in any consumer fraud,
product liability, tort, breach of contract, injury, damage or harm
of any kind to any third party; provided, however, that in any such
case: (x) Yahoo provides Global Sports with prompt notice of any
such claim; (y) Yahoo permits Global Sports to assume and control
the defense of such action upon Global Sports's written notice to
Yahoo of its intention to indemnify; and (z) upon Global Sports'
written request, and at no expense to Yahoo, Yahoo will provide to
Global Sports all available information and assistance necessary for
Global Sports to defend such claim. Global Sports will not enter
into any settlement or compromise of any such claim, which
settlement or compromise would result in any liability to Yahoo,
without Yahoo's prior written consent. Global Sports will pay any
and all
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costs and expenses, including, but not limited to, reasonable
attorneys' fees, incurred by Yahoo in connection with or arising
from any such claim, suit, action or proceeding if Global Sports
elects not to assume and control the defense of such claim, suit or
proceeding at its own expense; if Global Sports does assume and
control the defense of such claim, suit or proceeding at its own
expense, Yahoo will have the right to participate in such defense at
its own expense and with counsel of its own choice, subject to
Global Sports' control of such defense.
16.2 By Yahoo. Yahoo, at its own expense, will indemnify and hold
harmless Global Sports and its employees, representatives, agents
and affiliates, against any claim, suit, action, or other proceeding
brought by a third party against Global Sports or a Global Sports
Retailer (and any resulting liability or damages incurred by or
awarded against Global Sports or a Global Sports Retailer) based on
or arising from a claim that any Yahoo Brand Feature (a) infringes
in any manner any copyright, patent, trademark, trade secret or any
other intellectual property right of any third party, (b) is or
contains any material or information that is obscene, defamatory,
libelous, slanderous, or that violates any law or regulation, (c) is
subject to any fees, royalties, licenses or any other payments to
any parties, (d) violates any rights of any person or entity,
including, without limitation, rights of publicity, privacy or
personality, (e) breaches any obligation of Yahoo under this
Agreement, or (f) has resulted in any consumer fraud, product
liability, tort, breach of contract, injury, damage or harm of any
kind to any third party; provided, however, that in any such case:
(x) Global Sports provides Yahoo with prompt notice of any such
claim; (y) Global Sports permits Yahoo to assume and control the
defense of such action upon Yahoo's written notice to Global Sports
of its intention to indemnify; and (z) upon Yahoo's written request,
and at no expense to Global Sports, Global Sports 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 Global Sports, without Global Sports'
prior written consent. Yahoo will pay any and all costs and
expenses, including, but not limited to, reasonable attorneys' fees,
incurred by Global Sports in connection with or arising from any
such claim, suit, action or proceeding if Yahoo elects not to assume
and control the defense of such claim, suit or proceeding at its own
expense; if Yahoo does assume and control the defense of such claim,
suit or proceeding at its own expense, Global Sports will have the
right to participate in such defense at its own expense and with
counsel of its own choice, subject to Yahoo's control of such
defense.
17. Limitation of Liability.
EXCEPT WITH RESPECT TO EACH PARTY'S OBLIGATIONS UNDER SECTION 16, UNDER NO
CIRCUMSTANCES SHALL GLOBAL SPORTS OR YAHOO BE LIABLE TO THE OTHER PARTY
FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES
ARISING FROM THIS AGREEMENT, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE
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POSSIBILITY OF SUCH DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE
OR ANTICIPATED PROFITS OR LOST BUSINESS.
18. Insurance.
Global Sports agrees that it will obtain by November 1, 1999 or the Launch
Date (whichever occurs first), and maintain during the remainder of the
Term, insurance with coverage with a reputable carrier for commercial
general liability and errors and omissions of at least [*] dollars
per occurrence. Global Sports will name Yahoo as an additional insured on
such insurance and will provide evidence of such insurance to Yahoo within
ten (10) days of the Effective Date. Such insurance policy shall not be
cancelled or modified without Yahoo's prior written consent, which shall
not be unreasonably withheld.
19. General Provisions.
19.1 Independent Contractors. It is the intention of Yahoo and Global
Sports that Yahoo and Global Sports are, and shall be deemed to be,
independent contractors with respect to the subject matter of this
Agreement, and nothing contained in this Agreement shall be deemed
or construed in any manner whatsoever as creating any partnership,
joint venture, employment, agency, fiduciary or other similar
relationship between Yahoo and Global Sports.
19.2 Entire Agreement. This Agreement, together with all Exhibits,
represents the entire agreement between Yahoo and Global Sports with
respect to the subject matter hereof and thereof and shall supersede
all prior agreements and communications of the parties, oral or
written.
19.3 Amendment and Waiver. No amendment to, or waiver of, any provision
of this Agreement shall be effective unless in writing and signed by
both parties. The waiver by any party of any breach or default shall
not constitute a waiver of any different or subsequent breach or
default.
19.4 Governing Law. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of California without
regard to the conflicts of laws principles thereof.
19.5 Successors and Assigns. Neither party shall assign its rights or
obligations under this Agreement without the prior written consent
of the other party, which shall not unreasonably be withheld or
delayed. Notwithstanding the foregoing, either party may assign this
Agreement to an entity who acquires substantially all of the stock
or assets of a party to this Agreement; provided that, consent will
be required in the event that the non assigning party reasonably
determines that the assignee will not have sufficient capital or
assets to perform its obligations hereunder, or that the assignee is
a Competitor of the non-assigning party. All terms and provisions of
this Agreement shall be binding upon and inure to the
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benefit of the parties hereto and their respective permitted
transferees, successors and assigns.
19.6 Force Majeure. Neither party shall be liable for failure to perform
or delay in performing any obligation (other than the payment of
money) under this Agreement if such failure or delay is due to fire,
flood, earthquake, strike, war (declared or undeclared), embargo,
blockade, legal prohibition, governmental action, riot,
insurrection, damage, destruction or any other similar cause beyond
the control of such party.
19.7 Notices. All notices, requests and other communications called for
by this agreement shall be deemed to have been given immediately if
made by facsimile or Electronic mail (confirmed by concurrent
written notice sent via overnight courier for delivery by the next
business day), if to Yahoo at 3420 Central Expressway, Santa Clara,
CA 95051, Fax: (408) 731-3301 Attention: Vice President (e-mail:
[*]), with a copy to its General Counsel (e-mail: [*]), and if to
Global Sports at the physical or electronic mail address 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.
19.8 Severability. If any provision of this Agreement is held to be
invalid, illegal or unenforceable for any reason, such invalidity,
illegality or unenforceability shall not effect any other provisions
of this Agreement, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained
herein.
19.9 Sole Responsibility. Global Sports will remain solely responsible
for the operation of the Global Sports Site, and Yahoo will remain
solely responsible for the operation of the Yahoo Properties. Each
party: (a) acknowledges that the Global Sports Site and the Yahoo
Properties may be subject to temporary shutdowns due to causes
beyond the operating party's reasonable control; and (b) subject to
the terms of this Agreement, retains sole right and control over the
programming, content and conduct of transactions over its respective
Internet-based service.
19.10 Counterparts. This Agreement may be executed in two counterparts,
both of which taken together shall constitute a single instrument.
Execution and delivery of this Agreement may be evidenced by
facsimile transmission.
19.11 Authority. Each of Yahoo and Global Sports represents and warrants
that the negotiation and entry of this Agreement will not violate,
conflict with, interfere with, result in a breach of, or constitute
a default under any other agreement to which they are a party.
19.12 Attorneys Fees. The prevailing party in any action to enforce this
Agreement shall be entitled to reimbursement of its expenses,
including reasonable attorneys' fees.
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[signature page follows]
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This Advertising and Promotion Agreement has been executed by the duly
authorized representatives of the parties, effective as of the Effective Date.
YAHOO! INC. GLOBAL SPORTS, INC.
By: _____________________ By: ________________________
Name: ___________________ Name: ______________________
Title: ___________________ Title: _______________________
Attn: Chief Sales and Marketing Officer Attn: Chief Executive Officer
3420 Central Expressway 555 South Henderson Road,
Santa Clara, CA 95051 King of Prussia, PA 19406
Tel.: (408) 731-3300 Tel: (610) 878-8650
Fax: (408) 731-3301 Fax: (610) 768-0753
e-mail: [*] e-mail: [*]
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