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Yahoo! Marketplace Operating Agreement LLC Agreement

YAHOO! MARKETPLACE, L.L.C.

OPERATING AGREEMENT

This Operating Agreement (the "Agreement") is entered into as of August 26, 1996

(the "Effective Date") by and among the following parties (the "Parties",

individually a "Party"):

 

(i) Yahoo! MarketPlace, L.L.C., a Delaware limited liability company

(the "Company") with its principal offices initially at 635 Vaqueros Avenue,

Sunnyvale, California 94086;

(ii) Yahoo! Corporation, a California corporation ("Yahoo") with its

principal offices at 635 Vaqueros Avenue, Sunnyvale, California 94086; and

(iii) Visa International Service Association, a Delaware corporation

("Visa") with its principal offices at 900 Metro Center Boulevard, Foster

City, CA 94404;

with reference to the following:

 

A. Yahoo owns, operates and distributes a leading guide to Internet resources,

including a hierarchical directory, information indexing and retrieval software

and certain other elements of content and software.

 

B. Visa, through its member banks, is a leading provider of transaction

payment services and systems.

 

C. Yahoo, Visa (or a wholly-owned special purpose subsidiary of Visa) and

certain other parties have entered into an Limited Liability Company Agreement

of even date herewith (the "LLC Agreement") for the creation of the Company.

The Company has been formed to develop and operate a navigational service on the

World Wide Web focused on information and resources for the purchase of consumer

products and services over the Internet, which the Parties intend to develop as

the premier electronic commerce interface for both consumers and merchants.

 

D. The Company, Yahoo and Visa desire to enter into this Agreement in order to

set forth certain agreements relating to the Company and its business, including

the licensing of certain rights and the performance of certain services by Yahoo

and Visa to the Company.

 

On this basis, the Parties agree as follows:

 

 

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1. DEFINITIONS; RULES OF CONSTRUCTION.

 

1.1 DEFINITIONS. For purposes of this Agreement, in addition to the

capitalized terms defined elsewhere in this Agreement, the following terms shall

have the meanings ascribed to them below. Capitalized terms defined in the LLC

Agreement and not otherwise defined herein shall have the meanings ascribed to

them in the LLC Agreement.

 

(a) "Affiliates" shall mean Subsidiaries and Related Entities. A

"Subsidiary" shall mean a company in which on a class-by-class basis, more than

fifty percent (50%) of the stock entitled to vote for the election of directors

is owned or controlled by a party, but only so long as such ownership or control

exists. For Visa, a "Related Entity" shall mean an entity (A) at least fifty

percent (50%) of whose stock or other equity is owned collectively by Visa

Members and that has the authority to process Visa payment transactions, but

only so long as such ownership exists; (B) has an equity interest in Visa and is

owned in whole collectively by Visa Members or financial institutions (E.G.,

national or regional group members); or (C) is exclusively managed by Visa or a

national or group member of Visa for the purpose of processing Visa payment

transactions, but only so long as such exclusive management exists.

Notwithstanding anything to the contrary set forth above, however, Subsidiaries

or Related Entities do not include any individual Visa Member, bank or like

financial institution. Visa Affiliates include, for example, without

limitation, Visa USA, Inc., Vital, Inc., Plus and Interlink. For Yahoo,

"Related Entity" shall include any joint venture of which Yahoo owns an equity

interest and to which Yahoo has licensed Yahoo Brand Features in connection with

the commercialization of "Yahoo!" branded products or services.

 

(b) "Claim" means any judgment, losses, deficiencies, damages,

liabilities, costs and expenses (including reasonable attorneys' fees and

expenses), whether required to be paid to a third party or otherwise incurred in

connection with or arising from any claim, suit, action or proceeding.

 

(c) "Company Brand Features" means the Company's trademarks, trade

names, service marks, service names and distinct brand elements that may appear

in the Service from time to time and are protected under copyright law or as to

which the Company may establish trademarks or trade dress rights, and any

modifications to the foregoing that may be created during the term of this

Agreement, but excluding the Yahoo Brand Features and the Visa Brand Features

(e.g., any reference to the word "Yahoo!" or "Visa" or derivatives thereof,

respectively, shall not be deemed to be Company Brand Features).

 

(d) "Company Properties" means all content and materials developed

for use in the Service (other than the Yahoo Properties and the Visa Properties)

solely by the Company's employees or contractors, including (without limitation)

the Company Brand Features, and the organization, user look-and-feel and other

distinctive elements of the Service, and all Intellectual Property Rights in the

foregoing.

 

 

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(e) "Competitive Service" means any WWW Site or other Internet-based

service that is engaged in the MarketPlace Activities in any respect.

 

(f) "Components" means information, materials, products, features,

services, content, computer software, designs, artistic renderings, drawings,

sketches, characters, layouts, and the digital implementations thereof.

 

(g) "Confidential Information" means any information of a Party

disclosed to any other Party in the course of this Agreement, which is

identified as, or should be reasonably understood to be, confidential or

proprietary to the disclosing Party, including, but not limited to know-how,

trade secrets, log data, technical processes and formulas, source codes, product

designs, sales, cost and other unpublished financial information, product and

business plans, projections, and marketing data. "Confidential Information"

shall not include information which: (i) is known or becomes known to the

recipient directly or indirectly from a third-party source other than one having

an obligation of confidentiality to the providing Party; (ii) is or becomes

publicly available or otherwise ceases to be secret or confidential, except

through a breach of this Agreement by the recipient; or (iii) is or was

independently developed by the recipient without use of or reference to the

providing Party's Confidential Information, as shown by evidence in the

recipient's possession.

 

(h) "Consumers" means individuals or businesses who purchase products

and services that are (i) typically purchased at retail (e.g. retail stores,

mail order telephone order, etc.) and (ii) are purchased for use or consumption

by the purchasing individual or business (rather than for resale or as

components or tools used in the manufacture of goods and services).

 

(i) "Derivative Work" means all "derivative works" and

"compilations," within the meaning of such terms as defined in the U.S.

Copyright Act (17 U.S.C. Section 101 ET SEQ.).

 

(j) "HTML" means Hypertext Markup Language or any successor or

replacement to HTML.

 

(k) "Intellectual Property Rights" means trade secrets, patents,

copyrights, service marks, trademarks, know-how, moral rights and similar rights

of any type under the laws of any governmental authority, domestic or foreign

including all applications and registrations relating to any of the foregoing.

 

(l) "Joint Developments" means all content and materials that are

developed for use in the Service jointly by employees or contractors of the

Company, on the one hand, and employees or contractors of Yahoo and/or employees

or contractors of Visa, on the other hand, and all Intellectual Property Rights

in the foregoing.

 

(m) "Launch Date" means the date on which the Service is first made

publicly available.

 

 

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(n) "Link" means a URL hidden behind a formatting option that may

take the form of a colored item of text (such as a URL description), logo or

image, and which allows a user to automatically move between WWW pages, WWW

Sites or within a WWW document.

 

(o) "MarketPlace Activities" means [REDACTED]*

 

(p) "Operating Plan" means the Operating Plan of the Company in

effect from time to time, as defined in the LLC Agreement.

 

(q) "Percentage Interest" means the "Percentage Interest" in the

Company as defined in the LLC Agreement, or such other measurement of equity

interests into which "Percentage Interests" may hereafter be converted or

exchanged.

 

(r) "Service" means a WWW Site to be developed and offered by the

Company in accordance with this Agreement to engage in the MarketPlace

Activities in the United States and its territories.

 

(s) "Service Name" means the name of the Service, which shall be

mutually acceptable to Yahoo and Visa, shall include the name "Yahoo"

prominently (such as in "Yahoo! MarketPlace"), and shall not include the name

"Visa", except to the extent that the Service Name is presented in connection

with the Visa Tagline.

 

(t) "Term" shall mean the period from the Effective Date through the

dissolution of the Company as provided in the LLC Agreement, or, if sooner, the

date on which this Agreement is terminated in accordance with Section 9.2.

 

(u) "URL" means Universal Resource Locator, which provides a unique

Internet protocol address for accessing a WWW page, or any similar unique

addressing protocol that may be developed in the future.

 

(v) "Visa Brand Features" means Visa's trademarks, including the

marks "Visa," "Bring Your Visa Card" the Visa Icon and the Visa Tagline, and all

trade names, service marks, service names and distinct brand elements that Visa

regularly uses in its business and are protected under copyright or trademark

law or as to which Visa has established trademarks or trade dress rights, and

any modifications to the foregoing that may be created during the term of this

Agreement.

 

* Confidential treatment requested. Omitted portion filed separately

with the Commission.

 

 

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(w) "Visa Brand Guidelines" means the guidelines for use of the Visa

Brand Features in the Service, which are attached to this Agreement as

EXHIBIT A.

 

(x) "Visa Competitors" means [REDACTED]* as well as such other

entities that Yahoo and Visa shall deem to be a Visa Competitor from time to

time.

 

(y) "Visa Ownership Period" means the period commencing with the

Effective Date and ending on the later to occur of (i) the date the Visa Group

holds, in the aggregate, less than [REDACTED]* of all then outstanding

Percentage Interests; or (ii) the date on which the Visa Brand Features are no

longer used in the Service.

 

(z) "Visa Icon" means a graphic and/or text image, designated by Visa

(with Yahoo's reasonable approval), in an appropriate size and configuration to

serve as a Link to a Visa WWW Site as described in this Agreement; it being

agreed that the Visa Icon may not be sufficiently large to include the Visa

Tagline or similar amounts of text.

 

(aa) "Visa Members" means any entity that is a formal member of Visa

pursuant to Visa's Operating Regulations.

 

(bb) "Visa Operating Contributions" means those services and functions

described on EXHIBIT B, to be provided to the Company by Visa in connection with

this Agreement.

 

(cc) "Visa Properties" means the Visa Brand Features and any software

or other materials owned or licensed by Visa and provided to the Company

pursuant to this Agreement (including, without limitation, any such materials

relating to transaction payment processing), and all Intellectual Property

Rights in the foregoing.

 

(dd) "Visa Tagline" means a secondary tagline to be used in connection

with the title of the Service, which will be selected by Visa subject to the

Company's consent, such consent not to be unreasonably withheld, such as

"...bring your Visa card."

 

(ee) "WWW" means the World Wide Web, a system for accessing and

viewing text, graphics, sound and other media via the collection of computer

networks known as the Internet, and any similar system that may be developed in

the future.

 

(ff) "WWW Site" means a collection of materials and information made

available on the WWW via one or more related network servers, which collection

is organized around a common theme or organization, and which is accessed

primarily via a single URL.

 

(gg) "Yahoo Brand Features" means the Yahoo trademark, "Yahoo!", and

directly related distinct brand elements (such as the presentation of the word,

"Yahoo!") regularly appearing in the Yahoo Directory, as well as the other

regularly

 

* Confidential treatment requested. Omitted portion filed separately

with the Commission.

 

 

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<PAGE>

 

appearing distinctive elements and look-and-feel of the Yahoo Directory that are

protected under U.S. copyright law or as to which Yahoo has established

trademarks or trade dress rights (for example, Yahoo's copyright in the

organization and selection of entries in the

 

Yahoo! directory), and any modifications to the foregoing that may be

created during the term of this Agreement.

 

(hh) "Yahoo Brand Guidelines" means the guidelines for use of the

Yahoo Brand Features in the Service, which are attached to this Agreement as

 

EXHIBIT C.

 

(ii) "Yahoo Competitor " means [REDACTED]*, as well as such other

entities that Yahoo and Visa shall deem to be a "Yahoo Competitor" from time to

time; provided, however, that "Yahoo Competitors" shall not include any entity a

majority of the voting power of which is owned by Visa or one or more Visa

Members.

(jj) "Yahoo Directory" means the collection of HTML files and certain

related scripts comprising a directory to URLs (which directory currently

resides at URL - http://www.yahoo.com), including the other search tools

currently included with such directory, as the same may be maintained from time

to time on any Yahoo WWW Site.

 

(kk) "Yahoo Directory Tools" means certain software tools described on

EXHIBIT D for use in modifying HTML directories of URLs, in object code (machine

readable) form only, together with any improvements or modifications of the

foregoing that Yahoo may create during the Term.

 

(ll) "Yahoo Operating Contributions" means those services and

functions described on EXHIBIT E to be provided to the Company by Yahoo in

connection with this Agreement.

 

(mm) "Yahoo Properties" means the Yahoo Search Engine, the Yahoo

Directory Tools and the Yahoo Brand Features.

 

(nn) "Yahoo Search Engine" means, collectively, the software programs

used to locate information within the HTML scripts included in the Yahoo

Directory, which are described on EXHIBIT D, together with any improvements,

modifications or substitutions for the foregoing that Yahoo may make publicly

available during the Term.

 

1.2 RULES OF CONSTRUCTION. As used in this Agreement, neutral pronouns

and any variations thereof shall be deemed to include the feminine and masculine

and all terms used in the singular shall be deemed to include the plural, and

vice versa, as the context may require. The words "hereof," "herein" and

"hereunder" and other words of similar import refer to this Agreement as a

whole, including any exhibits hereto, as the same may from time to time be

amended or supplemented and not to any subdivision

 

* Confidential treatment requested. Omitted portion filed separately

with the Commission.

 

 

 

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contained in this Agreement. The word "including" when used herein is not

intended to be exclusive and means "including, without limitation." References

herein to section, subsection, attachment or exhibit shall refer to the

appropriate section, subsection or exhibit in or to this Agreement. The

descriptive headings of this Agreement are inserted for convenience of reference

only and do not constitute a part of and shall not be utilized in interpreting

 

this Agreement. This Agreement has been negotiated by the parties hereto and

their respective counsel and shall be fairly interpreted in accordance with its

terms and without any rules of construction relating to which party drafted the

Agreement being applied in favor of or against either party.

 

2. OBLIGATIONS OF YAHOO TO THE COMPANY AND VISA.

 

2.1 EXCLUSIVITY. Yahoo agrees that any and all MarketPlace Activities

will be conducted by Yahoo and its Affiliates exclusively through the Company.

Notwithstanding the foregoing, nothing in this Agreement shall be construed to

restrict Yahoo's right to offer [REDACTED]* and Yahoo! branded merchandise in

any online service developed or operated by Yahoo or any of its Affiliates,

provided that such service is not otherwise engaged in the MarketPlace

Activities.

2.2 GRANT OF LICENSE.

 

2.2.1 YAHOO BRAND FEATURES. Subject to the terms and conditions

of this Agreement, Yahoo hereby grants to the Company a non-exclusive,

worldwide, fully paid license during the Term to distribute, reproduce, transmit

and display in the Service (in the manner described in this Agreement) the Yahoo

Brand Features in the title and presentation of the Service (including as part

of the Service Name), and in connection with the distribution, marketing and

promotion of the Service, subject in each case to compliance with the Yahoo

Brand Guidelines.

 

2.2.2 YAHOO SEARCH ENGINE AND DIRECTORY TOOLS. Subject to the

terms and conditions of this Agreement, Yahoo hereby grants to the Company an

irrevocable and perpetual non-exclusive, worldwide, fully paid license to:

 

(a) Use, reproduce and make available through the Service (in object

code form only) the Yahoo Search Engine; and

 

(b) Use and reproduce the Yahoo Directory Tools in connection with

the development and maintenance of the Service.

 

2.3 SOFTWARE MAINTENANCE. During the Term, Yahoo shall promptly notify

the Company of any defects or malfunctions in the Yahoo Search Engine or the

Yahoo Directory Tools or any operator or user manuals, training materials,

guides, listings, specifications and other materials used in conjunction with

the same (collectively,

 

* Confidential treatment requested. Omitted portion filed separately with

the Commission.

 

 

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"Documentation") of which it learns from any source and which have an adverse

effect on the business of the Company. Yahoo shall promptly correct any such

defects or malfunctions in the Yahoo Search Engine, the Yahoo Directory Tools or

the Documentation discovered during such period and provide the Company with

corrected copies of same, without charge. Yahoo's obligation hereunder shall

not affect any other liability which it may have to the Company.

 

2.4 CERTAIN LIMITATIONS ON COMPETITIVE ACTIVITIES. During the Term, Yahoo

will not use or license any of its Intellectual Property Rights in the Yahoo

Search Engine, the Yahoo Directory, the Yahoo Directory Tools, or the name,

"Yahoo", for use in any Competitive Service.

 

2.5 OPERATIONAL ASSISTANCE. During the Term, Yahoo will provide the

Company with the Yahoo Operating Contributions, at no cost to the Company or

Yahoo (except as set forth herein), as well as such other support as Yahoo and

the Company shall mutually agree. Yahoo shall be reimbursed by the Company on a

monthly basis for Yahoo's direct out-of-pocket expenses incurred in connection

with such activities, which shall be determined by Yahoo and the Company on an

arms-length basis, and a reasonably detailed explanation of which shall be

provided to the members of the Board of the Company concurrently with the

regular delivery of financial information about the Company. The Company shall

not be obligated to reimburse Yahoo for any such expenses until such expenses

have been reviewed and approved by the Board of the Company.

 

2.6 YAHOO DIRECTORY PROMOTIONS FOR THE SERVICE. At no expense to the

Company or Visa, Yahoo will for a period of [REDACTED]* from the Launch Date:

 

2.6.1 Display in the primary "Navigation Bar" above the fold on

the top page of the Yahoo Directory a Link to the front page (i.e., the page

delivered in response to the primary URL of the Service) of the Service (which

Link shall include the Visa Icon), in a precise location on such page and in a

form as Yahoo shall determine; and no Competitive Service shall be similarly

referenced during this period on the top page of the Yahoo Directory.

 

2.6.2 Display a Link to the Service in other appropriate locations

throughout the Yahoo Directory as Yahoo shall determine, in its reasonable

discretion.

 

2.6.3 Display a Link to the Service every [REDACTED]* for a

minimum of [REDACTED]*, which need not be consecutive, along the top page

promotional marquee of the Yahoo Directory which promotional marquee shall be

above the fold on the top page.

 

2.6.4 To the extent that Yahoo licenses any portion of the Yahoo

Directory to third parties for inclusion in such parties' WWW Sites, use

commercially reasonable efforts to include the Link to the Service described in

Section 2.6.1 (including

 

* Confidential treatment requested. Omitted portion filed separately with

the Commission.

 

 

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the Visa Tagline) in such third party licensed WWW Site in substantially the

same manner as it may appear in the Yahoo Directory.

 

2.7 YAHOO DIRECTORY PROMOTIONS FOR VISA. At no expense to the Company or

Visa, Yahoo will for a period of [REDACTED]* from the Launch Date:

 

2.7.1 Place a Visa Icon on the lower left hand corner of the front

page of the Yahoo Directory, or such other locations as Visa shall approve;

provided, however, that if after the Effective Date Yahoo materially changes the

size or configuration of the

 

front page and as a result of such change the Visa Icon is no longer in an as

desirable location on the front page, Visa and Yahoo will work together in good

faith to determine a new location for the Visa Icon, which location shall be

comparable to the location of the Visa Icon prior to the change. Yahoo's

obligation to place the Visa Icon on the front page shall terminate immediately

if any WWW page referenced by the Link in the Visa Icon includes a Link to any

Yahoo Competitor. For such period no Visa Competitor shall receive reference

placement or presentation that is equal to or superior to the Visa Icon in terms

of prominence, placement and similar factors.

 

2.7.2 To the extent that Yahoo licenses any portion of the Yahoo

Directory to third parties for inclusion in such parties' WWW Sites, use

commercially reasonable efforts to include the Visa Link described in Section

2.7.1 in such third party licensed WWW Site in substantially the same manner as

it appears in the Yahoo Directory.

 

3. OBLIGATIONS OF VISA TO THE COMPANY AND YAHOO.

 

3.1 USE OF VISA BRAND FEATURES. During the Term, the Company shall be

entitled in connection with the Service to use, reproduce and transmit the Visa

Icon and the Visa Tagline, as well as such other Visa Brand Features as Visa

shall approve, acting reasonably. The Visa Brand Features shall be used by the

Company only in compliance with the Visa Brand Guidelines.

 

3.2 OPERATIONAL ASSISTANCE. From the Effective Date through twenty-four

(24) months following the Launch Date, Visa will provide the Company with the

Visa Operating Contributions at no cost to the Company (except as set forth

herein), as well as such other support as Visa and the Company shall mutually

agree. Such activities will be undertaken actively by Visa, particularly

during the first twelve (12) months following the Effective Date, consistent

with the Operating Plan.

 

3.3 CERTAIN LIMITATIONS ON COMPETITIVE ACTIVITIES.

 

3.3.1 For a period of [REDACTED]* following the Effective Date,

Visa will not (a) actively promote, by means of any system-wide marketing

effort, any Yahoo Competitor, or (b) enter into any joint branding relationship

with any Yahoo Competitor

 

* Confidential treatment requested. Omitted portion filed separately with

the Commission.

 

 

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<PAGE>

 

that involves the use of the "Visa" name as part of the name of such Yahoo

Competitor's Competitive Service.

 

3.3.2 Notwithstanding the provisions of Section 3.3.1, it is

understood that (a) Visa will make its payment methods available to other

companies that provide services that may be competitive with those of Yahoo and

the Service; (b) Visa will place advertisements with other companies that

provide services that may be competitive with those of Yahoo and the Service;

and (c) such restrictions shall not prohibit any Visa Members from entering into

credit or debit card co-branding agreements with any third party.

 

3.4 VISA PROMOTION OF THE SERVICE. For a period of three (3) years

following the Launch Date, Visa will agree to provide, at no expense to the

Company or Yahoo,

 

(a) a Link to the Service (in such form as the Company shall provide, which

shall be reasonably acceptable to Visa) on the top page of Visa's principal WWW

Site; and (b) advertisement placements for the Service (in such form as the

Company shall provide, which shall be reasonably acceptable to Visa) on

additional pages in Visa's principal WWW Site consistent with the Operating

Plan.

 

3.5 VISA PROMOTION OF THE YAHOO DIRECTORY. For a period of [REDACTED]*

following the Launch Date, Visa will, at no expense to Yahoo or the Company,

include a Link (in such form as Yahoo shall provide, which shall be reasonably

acceptable to Visa) to the Yahoo Directory on the top page of Visa's principal

WWW Site; provided that Visa's obligation to place such Yahoo Link shall

terminate immediately if any WWW page referenced by such Yahoo Link includes a

Link to any Visa Competitor. For such period, Yahoo will also be featured as

the premiere Internet navigational service in terms of prominence, placement and

similar factors.

 

3.6 VISA ADVERTISING ON THE YAHOO DIRECTORY. Visa will purchase no less

than a total of [REDACTED]* of advertising on the Yahoo Directory within

[REDACTED]* from the Effective Date, at prices and terms that shall be

[REDACTED]*. Such minimum advertising purchases shall be in addition to the

advertising contracts that have already been signed by Visa and Yahoo prior to

the Effective Date.

 

4. OBLIGATIONS OF THE COMPANY TO YAHOO AND VISA.

 

4.1 PROVISIONS RELATING TO THE SERVICE. The Company agrees with Yahoo and

Visa as follows with respect to the Service:

 

4.1.1 It is anticipated that there will not be a subscription fee

for consumers who use the Service, but there may be a fee for merchants listed

in the Service as determined by the Company. It is anticipated that the

principal sources of revenue for the Service will be advertising fees. It is

anticipated that the Service may generate revenues from transaction fees through

relationships with merchants participating in the

 

* Confidential treatment requested. Omitted portion filed separately with

the Commission.

 

 

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Service, which revenues, in the absence of any other agreement with Yahoo and

Visa, will be retained by the Company. The fee structure utilized by the

Company will not distinguish or discriminate among different methods of payment

by consumers.

 

4.1.2 It is understood that the Service may include sub-sets of

commerce content that will be developed by Yahoo and/or others. This commerce

content will be included under the distinct umbrella brand of the Service and,

where appropriate, the Company will enter into commercial relationships directly

with such content providers. The Company management will consult with Yahoo and

Visa with respect to such content relationships.

 

4.1.3 It is understood that the Company may, in its sole

discretion, accept payment methods for goods and services purchased through the

Service other than Visa payment methods; provided, that:

 

(i) So long as Visa or its Affiliates own any Percentage

Interest in the Company or the Company is using the Visa Brand Features in the

Service, (a) the Company will ensure that Visa will be the default payment

method (i.e., the method not requiring any additional selection action by the

user) for the purchase of goods and services anywhere in the Service where the

Company has the ability to make such decisions (i.e., where the transaction is

processed on network servers operated by or on behalf of the Company); (b) the

Company will use reasonable efforts to ensure that Visa will be the default

payment method anywhere else in the Service where the Company has the ability to

influence such decisions; (c) there shall be a Visa Icon on any portal page or

transfer page to any merchants participating in the Service; and (d) Visa will

receive superior placement (in terms of prominence, placement or size) for the

Visa Icon (A) at any location in the Service and (B) at any location in merchant

WWW Sites where companies in businesses similar to the businesses of Visa are

listed or promoted, where the Company has the ability to influence such

decisions.

 

(ii) For a period of [REDACTED]* from the Effective Date (or such

longer period as the parties may mutually agree), the Company and Yahoo will not

actively promote any Visa Competitor; provided that neither Yahoo nor the

Company shall be restricted from presenting advertising or promotions from Visa

Competitors in accordance with the standard advertising and promotional

practices of Yahoo and the Company, so long as such advertising or promotions do

not state that a Visa Competitor is the preferred method of payment on Yahoo or

the Service.

 

4.1.4 So long as Visa or its Affiliates own any Percentage

Interest in the Company or the Company is using the Visa Brand Features in the

Service, the Company will cooperate with Visa, to create a method for users of

the Service to apply for a Visa card from the front page of the Service by

"clicking" on the Visa reference on such page. This method shall be mutually

acceptable to Visa and the Company.

 

* Confidential treatment requested. Omitted portion filed separately with

the Commission.

 

 

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<PAGE>

 

4.1.5 It is understood by the parties that Visa has financial

arrangements with merchants and with cardholders that involve transaction fees,

financing fees, member fees, and similar charges. The Parties acknowledge and

agree that these financial arrangements will not in any way be affected by

Visa's or its Affiliates' participation in the Company or the Service.

 

4.1.6 It is understood and agreed that the Company may enter into

commercial relationships with other third parties for the promotion and

distribution of the Service, which relationships may include, without

limitation, the presentation of third party brands, services, content and other

materials in the Service; provided that, during the Visa Ownership Period, the

Company will not enter into any co-branding relationships or other contractual

relationships with any Visa Competitor, except for any non-promotional

contractual relationships solely for the purpose of permitting settlement of

online transactions with payment systems that may be offered by Visa

Competitors.

 

4.2 COMPANY RESPONSIBILITY. The Company shall have all primary

responsibility for the development, implementation, operation and maintenance of

the Service, including with respect to those activities as to which Yahoo or

Visa have agreed to provide support and assistance as set forth in this

Agreement.

 

4.3 GEOGRAPHIC LIMITATIONS. The Company agrees that (i) the Service shall

focus on serving only Consumers located within the United States and its

territories, (ii) Yahoo and Visa have reserved the right, in their discretion,

to offer services similar to the Service for Consumers located outside of the

United States and its territories ("Non-U.S. Services") and (iii) the Company

shall have no right to participate in the ownership, income or profits with

respect to any Non-U.S. Services. Yahoo and Visa agree that any and all

Non-U.S. Services shall be jointly owned and operated by Yahoo and Visa (or a

wholly-owned special purpose subsidiary of Visa) and that each of Visa and Yahoo

will receive all of the analogous benefits of this Agreement with respect to all

Non-U.S. Services, so long as each of Yahoo and Visa agree to perform the

analogous duties described in this Agreement and so long as each of Visa and

Yahoo assists in the funding for the new region's activities, such funding being

proportional to its equity share in any entity created by Yahoo and Visa (or a

special purpose wholly-owned subsidiary of Visa) at that time. To the extent

that Visa has been provided with the reasonable opportunity to participate on

such basis in any international MarketPlace Activities and has not committed in

writing to participate on such terms within ninety (90) days following notice of

any such opportunity (and the related terms in reasonable detail) by Yahoo,

Yahoo shall be free to pursue such activities separately and without any duty to

account to the Company or Visa; provided that Visa will use its best efforts to

provide any such notice (or indication that it does not intend to pursue such an

opportunity) within sixty (60) days following Yahoo's notice.

 

* Confidential treatment requested. Omitted portion filed separately with

the Commission.

 

 

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5. CONFIDENTIAL INFORMATION.

 

5.1 PROTECTION OF CONFIDENTIAL INFORMATION. Each of the Parties

recognizes that, in connection with the performance of this Agreement, each of

them may disclose to the others such Party's Confidential Information. Each

Party receiving any Confidential Information from another Party agrees to

maintain the confidential status of such Confidential Information and not to use

any such Confidential Information for any purpose other than the purpose for

which it was originally disclosed to the receiving Party, and not to disclose

any of such Confidential Information to any third party. No Party shall disclose

any other Party's Confidential Information to its employees and agents except on

a need-to-know basis.

 

5.2 PERMITTED DISCLOSURE. The Parties acknowledge and agree that each may

disclose Confidential Information: (i) as required by law; (ii) to their

respective directors, officers, employees, attorneys, accountants and other

advisors, who are under an obligation of confidentiality, on a "need-to-know"

basis; (iii) to investors or joint venture partners, who are under an obligation

of confidentiality, on a "need-to-know" basis; or (iv) in connection with

disputes or litigation between the parties involving such Confidential

Information and each Party shall endeavor to limit disclosure to that purpose

and to ensure maximum application of all appropriate judicial safeguards (such

as placing documents under seal).

 

5.3 APPLICABILITY. The foregoing obligations of confidentiality shall

apply to directors, officers, employees and representatives of the Parties and

any other person to whom, in connection with the performance of this Agreement,

the Parties have delivered copies of, or permitted access to, such Confidential

Information and each party shall advise each of the above of the obligations set

forth in this Section 5.

 

5.4 THIRD PARTY CONFIDENTIAL INFORMATION. Any Confidential Information of

a third party disclosed to any Party shall be treated by such Party in

accordance with the terms under which such third party Confidential Information

was disclosed; provided that the Party disclosing such third party Confidential

Information shall first notify the receiving Party that such information

constitutes third party Confidential Information and the terms applicable to

such third party Confidential Information and provided further that any Party

may decline, in its sole discretion, to accept all or any portion of such third

party Confidential Information.

 

5.5 CONFIDENTIALITY OF AGREEMENT. Except as required by law (including,

without limitation, applicable disclosure requirements of the Securities and

Exchange Commission) or generally accepted accounting principles, and except to

assert its rights hereunder or for disclosures to its own officers, directors,

employees and professional advisers on a need-to-know basis or in confidence

to investors, investment bankers, financial institutions or other lenders or

acquirers, each Party hereto agrees that neither it nor its directors, officers,

employees, consultants or agents shall disclose the terms of this Agreement or

specific matters relating hereto without the prior consent of the other Parties,

which consent shall not be unreasonably withheld or delayed.

 

 

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5.6 FUTURE BUSINESS ACTIVITIES. This Agreement shall not limit any

Party's present and future business activities of any nature, including business

activities which could be competitive with any other Party, except to the extent

such activities would involve a breach of (i) the confidentiality restrictions

contained in this Section or (ii) any other express provision of this Agreement.

Nothing in this Agreement will be construed as a representation or agreement

that the recipient of Confidential Information will not develop or have

developed for it products, concepts, systems or techniques contemplated by or

embodied in such Confidential Information, provided that such recipient does not

violate any of its obligations under Section 5 of this Agreement in connection

with such development.

 

5.7 NON-DISCLOSURE AGREEMENT. The confidentiality provisions contained in

this Section 5 supersede any prior Non-Disclosure Agreement between the Parties;

provided that no party shall be relieved of liability for any breach of such

Non-Disclosure Agreement prior to the Effective Date.

 

6. REPRESENTATIONS AND WARRANTIES; CERTAIN COVENANTS.

 

6.1 AUTHORITY. Each Party represents and warrants to each other Party

that:

 

6.1.1 CORPORATE AUTHORITY; NO CONFLICT; BINDING AGREEMENT. Such

Party has the full corporate right, power and authority to enter into this

Agreement and to perform the acts required of it hereunder; and the execution of

this Agreement by such Party; the performance by such Party of its obligations

and duties hereunder, do not and will not violate any agreement to which such

Party is a party or by which it is otherwise bound; and when executed and

delivered by such Party, this Agreement will constitute the legal, valid and

binding obligation of such Party, enforceable against such Party in accordance

with its terms.

 

6.1.2 NO IMPLIED REPRESENTATIONS OR WARRANTIES. Such Party

acknowledges that no other Party has made any representations, warranties or

agreements related to the subject matter hereof that are not expressly provided

for in this Agreement or the LLC Agreement.

 

6.2 NO INFRINGEMENT. Such Party will use its reasonable efforts to ensure

that the Components which such Party includes in or associates with the Service

(including, without limitation, the Yahoo Properties and the Visa Properties) do

not and shall not (i) infringe on or violate any Intellectual Property Right of

any third party; or (ii) violate any applicable law, regulation or third party

right when included in a manner consistent with this Agreement. In the event

that any Party becomes aware of any such infringement (or alleged infringement)

or violation, such Party will promptly notify the other Parties and shall

provide all information relating to such matters as such other Parties may

reasonably request.

 

 

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7. OWNERSHIP AND RESERVED RIGHTS.

 

7.1 RESERVED RIGHTS OF YAHOO.

 

7.1.1 LICENSE LIMITATIONS. In using the Yahoo Properties pursuant

to this Agreement, the Company acknowledges and agrees that: (a) the Company

will use the Yahoo Properties only in accordance with the Yahoo Brand

Guidelines, (b) the Yahoo Properties are and shall remain the property solely of

Yahoo and its licensors; (c) nothing in this Agreement shall confer in the

Company any right of ownership in the Yahoo Properties; and (d) the Company

shall not now or in the future contest the validity of the trademarks, service

marks or other Yahoo Brand Features.

 

7.1.2 YAHOO OWNERSHIP. Yahoo shall retain all ownership rights in

and to the Yahoo Properties, including, without limitation, any Yahoo Brand

Features that may be incorporated into the Service or its distinctive trademarks

or trade names and any Derivative Works of the Yahoo Properties that may be

created by the Company. The Company hereby assigns to Yahoo any ownership

interest it may be deemed to possess in the Yahoo Properties and during the Term

and thereafter will assist Yahoo in every reasonable way, at Yahoo's expense, to

obtain, secure, perfect, maintain, defend and enforce for Yahoo's benefit all

Intellectual Property Rights with respect to the Yahoo Properties. Except as

expressly provided in this Agreement, Yahoo shall be entitled to exercise all

rights of ownership of the Yahoo Properties, including (without limitation) the

right to license the Yahoo Properties to any other party.

 

7.1.3 LICENSES BACK.

 

(a) The Company hereby grants to Yahoo a non-exclusive,

fully-paid, worldwide, perpetual license (with the right to sublicense) to use,

reproduce, distribute and display any Company Properties (including, without

limitation, any Company Properties that constitute Derivative Works of any Yahoo

Properties) and to create Derivative Works therefrom (other than any Company

Properties or Derivative Works created from Visa Properties or from materials

that constitute Visa Operating Contributions described in Section 7.1.3(b)),

subject to all of the competitive limitations and other restrictions upon Yahoo

activities set forth in this Agreement (including, without limitation, that

Yahoo will not use or permit the use of any Company Properties or Derivative

Works created from Company Properties during the Term in connection with any

Competitive Service.)

 

(b) The Company hereby grants to Visa a non-exclusive,

fully-paid, worldwide, perpetual license (with right to sublicense) to use,

reproduce, distribute and display any Company Properties that constitute

Derivative Works of any Visa Properties and to create Derivative Works

therefrom, subject to all of the competitive limitations and other restrictions

on Visa activities set forth in this Agreement; provided that during the Term

Visa will not use or permit the use of any such Derivative Works (as

distinguished from any underlying Visa Operating Contribution) in connection

with any Competitive Service.

 

 

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<PAGE>

 

(c) The Company agrees that Yahoo and Visa may be involved in

the development and operation of Non-U.S. Services. The Company hereby grants

to each of Visa and Yahoo, a non-exclusive, fully-paid, perpetual, worldwide

license (with rights to sublicense) to use, reproduce, distribute and display

any and all Company Properties and to create Derivative Works therefrom for the

sole purpose of creating, owning and operating Non-U.S. Services in accordance

with the provisions of Section 4.3 (Geographic Limitations) hereof.

 

(d) The foregoing licenses shall survive any termination or

expiration of this Agreement.

 

7.2 RESERVED RIGHTS OF VISA.

 

7.2.1 LICENSE LIMITATIONS. In using the Visa Properties pursuant

to this Agreement, the Company acknowledges and agrees that: (a) the Company

will use the Visa Properties only in accordance with the Visa Brand Guidelines,

(b) the Visa Properties are and shall remain the property solely of Visa and its

licensors; (c) nothing in this Agreement shall confer in the Company any right

of ownership in the Visa Properties; and (d) the Company shall not now or in the

future contest the validity of the trademarks, service marks or other Visa Brand

Features.

 

7.2.2 VISA OWNERSHIP. Visa shall retain all ownership rights in

and to the Visa Properties including without limitation, any Visa Brand Features

that may be incorporated into the Service or its distinctive trademarks or trade

names and any Derivative Works of the Visa Properties that may be created by the

Company. The Company hereby assigns to Visa any ownership interest it may be

deemed to possess in the Visa Properties and during the Term and thereafter will

assist Visa in every reasonable way, at Visa's expense, to obtain, secure,

perfect, maintain, defend and enforce for Visa's benefit all Intellectual

Property Rights with respect to the Visa Properties. Except as expressly

provided in this Agreement, Visa shall be entitled to exercise all rights of

ownership of the Visa Properties, including (without limitation) the right to

license the Visa Properties to any other party.

 

7.3 JOINT DEVELOPMENTS. The Company hereby grants to each of Yahoo and

Visa a non-exclusive, world-wide, perpetual, fully-paid license (with rights to

sublicense) to use, reproduce, distribute and display any and all Joint

Developments and to create Derivative Works therefrom for use in any Non-U.S.

Service. Neither Yahoo nor Visa shall undertake a Joint Development without

first either obtaining the written consent of any Party not participating in the

development of the Joint Development as to the scope and subject matter of such

Joint Development or having the scope and subject matter of the Joint

Development approved by the Board. The Company, Yahoo and Visa shall jointly

own all Joint Developments developed collectively by (i) employees or

contractors of the Company, (ii) employees or contractors of Visa and

(iii) employees or contractors of Yahoo, and, to the extent such Joint

Developments are distinct from the Company Properties, the Yahoo Properties and

the Visa Properties, each Party shall be

 

 

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<PAGE>

 

entitled to exercise all rights of ownership with respect to such Joint

Developments, without any duty to account to any other Party; provided that

Visa's and Yahoo's use of any such Joint Developments shall be subject to all of

the competitive limitations and other restrictions upon their activities set

forth in this Agreement (including, without limitation, that each of Visa and

Yahoo will not use any such Joint Developments during the Term in connection

with any Competitive Service). The foregoing license shall survive any

expiration or termination of this Agreement.

 

7.3.1 YAHOO JOINT DEVELOPMENTS. The Company and Yahoo shall

jointly own all Joint Developments developed by employees or contractors of the

Company and employees or contractors of Yahoo, and, to the extent such Joint

Developments are distinct from the Company Properties, on the one hand, and the

Yahoo Properties on the other hand, each party shall be entitled to exercise all

rights of ownership with respect to such Joint Developments, without any duty to

account to the other party; provided that Yahoo's use of any such Joint

Developments shall be subject to all of the competitive limitations and other

restrictions upon Yahoo activities set forth in this Agreement (including,

without limitation, that Yahoo will not use or permit the use of any such Joint

Developments during the Term in connection with any Competitive Service.

 

7.3.2 VISA JOINT DEVELOPMENTS. The Company and Visa shall jointly

own all Joint Developments developed by employees or contractors of the Company

and employees or contractors of Visa, and, to the extent such Joint Developments

are distinct from the Company Properties, on the one hand, and the Visa

Properties on the other hand, each party shall be entitled to exercise all

rights of ownership with respect to such Joint Developments, without any duty to

account to the other party; provided that during the Term Visa will not use or

permit the use of any such Joint Developments in connection with any Competitive

Service.

 

7.4 RESTRICTIONS. No licenses are granted by Yahoo or Visa except for

those expressly set forth in this Agreement. Except to the extent expressly

provided in this Agreement, the Company shall not (i) modify, adapt, translate

or create Derivative Works based on the Yahoo Properties or the Visa Properties,

or (ii) remove any copyright, trademark or other proprietary rights notices from

the Yahoo Properties or the Visa Properties.

 

8. LIMITATION OF LIABILITY; DISCLAIMER; INDEMNIFICATION.

 

8.1 LIABILITY. EXCEPT AS PROVIDED IN SECTION 8.3, UNDER NO CIRCUMSTANCES

SHALL ANY PARTY BE LIABLE TO ANY OTHER PARTY FOR INDIRECT, INCIDENTAL,

CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED

OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY PROVISION OF THIS

AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS

OR LOST BUSINESS.

 

 

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<PAGE>

 

 

8.2 NO ADDITIONAL WARRANTIES. EXCEPT AS SET FORTH IN THIS AGREEMENT, NO

PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY

REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS AND

SERVICES CONTEMPLATED BY THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, AS TO

THE OPERATION OF THE YAHOO SEARCH ENGINE OR YAHOO DIRECTORY TOOLS), INCLUDING

ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND

IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

 

8.3 INDEMNIFICATION.

 

8.3.1 YAHOO INDEMNIFICATION. Subject to the limitations set forth

below, Yahoo, at its own expense, shall indemnify, defend (or at Yahoo's option

and expense, settle) and hold the Company, any Company Affiliates, Visa, any

Visa Affiliates, and their officers, directors, employees, agents, distributors

and licensees (collectively, the "indemnified parties") harmless from and

against any Claim against the indemnified party to the extent the basis of such

Claim is that: (A) the Yahoo Properties infringe any Intellectual Property

Right of a third party; (B) Yahoo does not have the right to license the Yahoo

Properties as set forth herein; or (C) a third party has been or may be injured

or damaged in any way by any material breach by Yahoo of any of its duties,

representations or warranties under this Agreement; provided that Yahoo shall

have no obligation to the indemnified parties pursuant to this Section unless

(x) the indemnified party gives Yahoo prompt written notice of the Claim;

(y) Yahoo is given the right to control and direct the investigation,

preparation, defense and settlement of the Claim; and (z) the indemnified party

provides Yahoo with reasonable assistance in the defense or settlement thereof;

and provided further that if any settlement results in any ongoing liability to,

or prejudices or detrimentally impacts the indemnified party, and such

obligation, liability, prejudice or impact can reasonably be expected to be

material, then such settlement shall require the indemnified party's written

consent. In connection with the defense of any such Claim, each indemnified

party may have its own counsel in attendance at all public interactions and

substantive negotiations at its own cost and expense.

 

8.3.2 VISA INDEMNIFICATION. Subject to the limitations set forth

below, Visa, at its own expense, shall indemnify, defend (or at Visa's option

and expense, settle) and hold the Company, any Company Affiliates, Yahoo, any

Yahoo Affiliates and their officers, directors, employees, agents, distributors

and licensees (collectively, the "indemnified parties") harmless from and

against any Claim against the indemnified party to the extent the basis of such

Claim is that: (A) the Visa Properties infringe any Intellectual Property Right

of a third party; (B) Visa does not have the right to license the Visa

Properties as set forth herein; or (C) a third party has been or may be injured

or damaged in any way by any material breach by Visa of any of its duties,

representations or warranties under this Agreement; provided that Visa shall

have no obligation to the indemnified parties pursuant to this Section unless

(x) the indemnified party gives Visa

 

 

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<PAGE>

 

prompt written notice of the Claim; (y) Visa is given the right to control and

direct the investigation, preparation, defense and settlement of the Claim; and

(z) the indemnified party provides Visa with reasonable assistance in the

defense or settlement thereof; and provided further that if any settlement

results in any ongoing liability to, or prejudices or detrimentally impacts the

indemnified party, and such obligation, liability, prejudice or impact can

reasonably be expected to be material, then such settlement shall require the

indemnified party's written consent. In connection with the defense of any such

Claim, each indemnified party may have its own counsel in attendance at all

public interactions and substantive negotiations at its own cost and expense.

 

8.3.3 COMPANY INDEMNIFICATION. Subject to the limitations set

forth below the Company, at its own expense, shall indemnify, defend (or at the

Company's option and expense, settle) and hold Visa, any Visa Affiliates, Yahoo,

any Yahoo Affiliates and their officers, directors, employees, agents,

distributors and licensees (collectively, the "indemnified parties") harmless

from and against any Claim against the indemnified party to the extent the basis

of such Claim is that: (A) the Company Properties infringe any Intellectual

Property Right of a third party; (B) a third party has been or may be injured or

damaged in any way by any material breach by the Company of any of its duties,

representations or warranties under this Agreement; (C) any Company Properties

are defamatory, libelous, slanderous, inaccurate or otherwise results in injury

or damage to any person; and (D) there is any other liability or obligation of

the Company arising out of the Company's development and operation of the

Service, which liability or obligation does not result from any intentional

misconduct or gross negligence of the indemnified party or its Affiliates;

provided that the Company shall have no obligation to the indemnified parties

pursuant to this Section unless (x) the indemnified party gives the Company

prompt written notice of the Claim; (y) the Company is given the right to

control and direct the investigation, preparation, defense and settlement of the

Claim; and (z) the indemnified party provides the Company with reasonable

assistance in the defense or settlement thereof; and provided further that if

any settlement results in any ongoing liability to, or prejudices or

detrimentally impacts the indemnified party, and such obligation, liability,

prejudice or impact can reasonably be expected to be material, then such

settlement shall require the indemnified party's written consent. In connection

with the defense of any such Claim, each indemnified party may have its own

counsel in attendance at all public interactions and substantive negotiations at

its own cost and expense.

 

9. TERM.

 

9.1 TERM OF AGREEMENT. This Agreement shall be effective from the

Effective Date until the earlier to occur of (i) the dissolution of the Company

as provided in the LLC Agreement, and (ii) termination of this Agreement

pursuant to Section 9.2.

 

9.2 GROUNDS FOR TERMINATION. Notwithstanding Section 9.1, any party may,

at its sole option, terminate this Agreement in the event that:

 

 

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(i) Any other party breaches any of its obligations, representations

or warranties under this Agreement in any material respect and fails to cure

such breach within thirty (30) days of receiving notice thereof;

 

(ii) Any other party makes an assignment for the benefit of its

creditors, a voluntary or involuntary petition is filed with respect to such

party under any bankruptcy or insolvency law, under the reorganization or

arrangement provisions of the United States Bankruptcy Code, or under the

provisions of any law of like import in connection with such party (which

filing, if involuntary, is not lifted within sixty (60) days following filing),

or the appointment of a trustee or receiver for such party or its property;

 

(iii) the Launch Date fails to occur within [REDACTED]* after the

Effective Date; or

 

(iv) with respect to Yahoo and Visa only, either of Yahoo or its

Affiliates on the one hand or Visa or its Affiliates on the other hand, no

longer owns any Percentage Interest in the Company, provided that the election

to terminate this Agreement may only be made by the Party that continues to own

a Percentage Interest in the Company.

 

9.3 RETURN OF INFORMATION. Within thirty (30) calendar days after the

termination or expiration of this Agreement, each Party shall either deliver to

each other Party, or destroy, all copies of any Confidential Information of such

other Parties provided hereunder in its possession or under its control, and

shall furnish to such other Parties an affidavit signed by an officer of its

company certifying that to the best of its knowledge, such delivery or

destruction has been fully effected.

 

9.4 SURVIVAL. No termination of this Agreement by one Party shall affect

the rights and obligations hereunder of the other Parties to each other. The

respective rights and obligations of the Parties under Sections 2.2.2, 2.3, 4.3,

5, 7, 8, 9.3 and 10 shall survive any expiration or termination of this

Agreement. No termination or expiration of this Agreement shall relieve any

Party for any liability for any breach of or liability accruing under this

Agreement prior to termination.

 

10. MISCELLANEOUS.

 

10.1 INDEPENDENT CONTRACTORS. The Parties to this Agreement are

independent contractors. No Party is an agent, representative, or partner of

any other Party. No Party shall have any right, power or authority to enter

into any agreement for or on behalf of, or incur any obligation or liability of,

or to otherwise bind, any other Party. This Agreement shall not be interpreted

or construed to create an association, agency, joint venture or partnership

between the Parties or to impose any liability attributable to such a

relationship upon any Party. Neither Yahoo nor Visa shall have any liability

whatsoever for the obligations of the Company hereunder or otherwise,

notwithstanding any

 

* Confidential treatment requested. Omitted portion filed separately with

the Commission.

 

 

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ownership interest in the Company of Yahoo, Visa or their respective Affiliates,

or their involvement or participation in the activities of the Company.

 

10.2 GOVERNING LAW. This Agreement shall be interpreted and construed in

accordance with the laws of the State of California, without reference to

conflicts of laws principles.

 

10.3 AMENDMENT OR MODIFICATION. This Agreement may not be amended,

modified or supplemented by the parties in any manner, except by an instrument

in writing signed on behalf of each of the Parties by a duly authorized officer

or representative.

 

10.4 NO ASSIGNMENT. No Party shall transfer or assign any rights or

delegate any obligations hereunder, in whole or in part, whether voluntarily or

by operation of law, without the prior written consent of the other Party. Any

purported transfer, assignment or delegation by any Party without the

appropriate prior written approval shall be null and void and of no force or

effect. Notwithstanding the foregoing, without securing such prior consent,

each Party shall have the right to assign this Agreement and all of its rights

or obligations to (x) any Affiliate of such Party (provided that such Party

remains liable for its obligations hereunder), or (y) any successor of such

Party by way of merger or consolidation or the acquisition of all or

substantially all of the business and assets of the assigning Party relating to

the Agreement, provided that such assignee (i) has at least the same net worth

after such transaction as the assigning Party has immediately prior to such

transaction, (ii) assumes in writing all of the assigning Party's obligations

under this Agreement, and (iii) is not a direct business competitor with any

other Party.

 

10.5 NOTICES; APPROVALS. Except as otherwise provided herein, any notice or

other communication to be given hereunder shall be in writing and shall be (as

elected by the party giving such notice): (i) personally delivered;

(ii) transmitted by postage prepaid registered or certified airmail, return

receipt requested; (iii) transmitted by electronic mail via the Internet with

receipt being acknowledged by the recipient by return electronic mail (with a

copy of such transmission transmitted by postage prepaid registered or certified

airmail, return receipt requested); (iv) transmitted by facsimile (with a copy

of such transmission by postage paid prepaid registered or certified airmail,

return receipt requested); or (v) deposited prepaid with a nationally recognized

overnight courier service. Unless otherwise provided herein, all notices shall

be deemed to have been duly given on: (a) the date of receipt (or if delivery

is refused, the date of such refusal) if delivered personally, by electronic

mail, facsimile or by courier; or (b) three (3) days after the date of posting

if transmitted by mail. Either party may change its address for notice purposes

hereof on not less than three (3) days prior notice to the other party. Notice

hereunder shall be directed to a Party at the address for such Party which is

set forth in the introduction to this Agreement, attention "President".

 

10.6 ENTIRE AGREEMENT. This Agreement and the LLC Agreement represent the

entire agreement of the parties with respect to the subject matter hereof and

supersedes all

 

 

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prior and/or contemporaneous agreements and understandings, written or oral

between the parties with respect to the subject matter hereof (including the

letter agreement between Yahoo and Visa dated March 27, 1996). No party has

relied upon any promises, inducements, representations made by any other Party

or expectations of further business dealings except as expressly provided in

this Agreement.

 

10.7 WAIVER. Any of the provisions of this Agreement may be waived by the

Party entitled to the benefit thereof. No Party shall be deemed, by any act or

omission, to have waived any of its rights or remedies hereunder unless such

waiver is in writing and signed by the waiving Party, and then only to the

extent specifically set forth in such writing. A waiver with reference to one

event shall not be construed as continuing or as a bar to or waiver of any right

or remedy as to a subsequent event.

 

10.8 WAIVER OF JURY TRIAL. EACH OF YAHOO, VISA AND THE COMPANY DO HEREBY

KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVE SUCH RIGHT ANY PARTY

MAY HAVE TO A JURY TRIAL IN EVERY JURISDICTION IN ANY ACTION, PROCEEDING OR

COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST ANY OTHER PARTY

HERETO OR THEIR RESPECTIVE AFFILIATES, SUCCESSORS OR ASSIGNS IN RESPECT OF ANY

MATTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER DOCUMENT

EXECUTED AND DELIVERED BY ANY PARTY IN CONNECTION THEREWITH (INCLUDING, WITHOUT

LIMITATION, ANY ACTION TO RESCIND OR CANCEL THIS AGREEMENT, AND ANY CLAIMS OR

DEFENSES ASSERTING THAT THIS AGREEMENT WAS FRAUDULENTLY INDUCED OR OTHERWISE

VOID OR VOIDABLE).

 

10.9 NO THIRD PARTY BENEFICIARIES. Nothing express or implied in this

Agreement is intended to confer, nor shall anything herein confer, upon any

person (including any Member of the Company) other than the Parties and the

respective successors or assigns of the Parties, any rights, remedies,

obligations or liabilities whatsoever.

 

10.10 FEES AND EXPENSES. Each Party shall be responsible for the

payment of its own costs and expenses, including attorneys' fees and expenses,

in connection with the negotiation and execution of this Agreement.

 

10.11 RECOVERY OF COSTS AND EXPENSES. If any Party to this Agreement

brings an action against any other Party to enforce its rights under this

Agreement, the prevailing Party shall be entitled to recover all reasonable

costs and expenses, including attorneys' fees and costs incurred in connection

with such action, including any appeal of such action.

 

10.12 SEVERABILITY. If the application of any provision or provisions

of this Agreement to any particular facts of circumstances shall be held to be

invalid or unenforceable by any court of competent jurisdiction, then: (i) the

validity and

 

 

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enforceability of such provision or provisions as applied to any other

particular facts or circumstances and the validity of other provisions of this

Agreement shall not in any way be affected or impaired thereby; and (ii) such

provision or provisions shall be reformed without further action by the Parties

hereto and only to the extent necessary to make such provision or provisions

valid and enforceable when applied to such particular facts and circumstances.

 

10.13 INCONSISTENT AGREEMENTS. No Party shall agree to any contractual

provision or term in any agreement with any third party which contains a

provision or term which would cause such Party to be in breach of this

Agreement.

 

10.14 COUNTERPARTS; FACSIMILES. This Agreement may be executed in any

number of counterparts, each of which when so executed and delivered shall be

deemed an original, and such counterparts together shall constitute one and the

same instrument. Each Party shall receive a duplicate original of the

counterpart copy or copies executed by it. For purposes hereof, a facsimile

copy of this Agreement, including the signature pages hereto, shall be deemed to

be an original. Notwithstanding the foregoing, the Parties shall each deliver

original execution copies of this Agreement to one another as soon as

practicable following execution thereof.

 

The Parties to this Agreement by their duly authorized representatives have

executed this Agreement as of the date first above written.

 

 

Yahoo! Inc., a Visa International Service Association, a

California corporation Delaware corporation

 

 

By: /s/ Timothy Koogle By: /s/Bennet R. Katz

--------------------------- --------------------------------------

Title: President and CEO Title: /s/ Group Executive Vice President

----------------------- and General Counsel

----------------------------------

 

Yahoo! MarketPlace, L.L.C., a

Delaware limited liability company

 

 

By: /s/ Scott Randall

---------------------------

Title: President

-----------------------