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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-Q/A
AMENDMENT NO. 2 TO THE QUARTERLY REPORT
(Mark One)
[X] Quarterly Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934. For the quarterly period
ended SEPTEMBER 30, 1999.
or
[_] Transition Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934. For the transition period
from _______to _______.
Commission File Number 0-16611
GLOBAL SPORTS, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 04-2958132
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
1075 FIRST AVENUE, KING OF PRUSSIA, PA 19406
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(Address of principal executive offices) (Zip Code)
610-265-3229
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(Registrant's telephone number,
including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [_]
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of November 12, 1999:
Common Stock, $.01 par value 18,445,813
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(Title of each class) (Number of Shares)
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PURPOSE OF AMENDMENT
The Registrant previously filed certain of its material contracts as
exhibits to its Quarterly Report on Form 10-Q for the nine-month period ended
September 30, 1999. The Registrant requested confidential treatment as to
certain portions of certain of the contracts. The Registrant hereby amends Item
6 of its Quarterly Report on Form 10-Q for the quarterly period ended September
30, 1999, as set forth in the pages attached hereto.
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
(A) EXHIBITS
Exhibit No. Description
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10.1*(1) Employment Agreement dated August 9, 1999 by and
between the Registrant and Arthur Miller.
10.2+ Omnibus Services Agreement dated April 1, 1999 by and
between the Registrant and Organic, Inc. ("Organic")
10.3+ Amendment No. 1 to the Omnibus Services Agreement dated
April 1, 1999 by and between the Registrant and Organic
10.4(1) Independent Contractor Services Agreement dated June
29, 1999 by and between the Registrant and Foundry,
Inc.
10.5(1) Addendum No. 1 to the Independent Contractor Services
Agreement dated June 29, 1999 by and between the
Registrant and Foundry, Inc.
10.6(1) Agreement of Sale dated July 27, 1999 by and between
the Registrant and IL First Avenue Associates L.P. for
acquisition of property at 1075 First Avenue, King of
Prussia, PA.
10.7+ Advertising and Promotion Agreement dated October 3,
1999 by and between the Registrant and Yahoo! Inc.
10.8(1) Transaction Management Services Agreement dated June
10, 1999 by and between the Registrant and Priority
Fulfillment Services, Inc.
27.1(1) Financial data schedule for the nine-month period ended
September 30, 1999 (electronic filing only).
* Management contract or compensatory plan or arrangement.
(1) Previously filed
+ Confidential treatment has been requested as to certain portions of
this exhibit. The omitted portions have been separately filed with the
Securities and Exchange Commission.
(B) REPORTS ON FORM 8-K
None.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this Amendment to be signed on its behalf by the
undersigned, hereunto duly authorized.
GLOBAL SPORTS, INC.
DATE: April 21, 2000 By: /s/ Michael G. Rubin
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Michael G. Rubin
Chairman of the Board & Chief
Executive Officer
DATE: April 21, 2000 By: /s/ Jordan M. Copland
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Jordan M. Copland
Vice President & Chief Financial
Officer
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EXHIBIT 10.2
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.
OMNIBUS SERVICES AGREEMENT
This Omnibus Services Agreement ("Agreement") is entered into as of April
1, 1999 ("Effective Date") by and between Organic, Inc., with principal offices
located at 510 Third Street, Suite 540, San Francisco, CA 94107 ("ORGANIC") and
Global Sports Interactive, Inc., with principal offices located at 555 South
Henderson Road, King of Prussia, PA 19054 ("CUSTOMER").
Whereas, ORGANIC provides assistance to companies in developing interactive
software and content for use on the Internet public computer network or an
intranet network; and
Whereas, CUSTOMER desires to retain ORGANIC to provide such assistance to
CUSTOMER in accordance with the terms and conditions set forth in this
Agreement.
Now, Therefore, intending to be legally bound, the parties set forth above
hereby agree as follows:
1. DEFINITIONS.
1.1 "Customer Content" shall mean marketing collateral, data, text, audio
files, video files, graphics and other materials: (i) provided by CUSTOMER;
(ii) developed by or on behalf of ORGANIC for use with the Web Site pursuant to
the mutually-agreed specifications set forth in any Authoring Services Statement
of Work (as defined in Section 1.10.1); or (iii) any other such material used or
posted by CUSTOMER on, or otherwise incorporated in, the Web Site. Customer
Content expressly does not include Organic Pre-existing Software, Customer
Software, or Other Organic Material.
1.2 "Deliverable" shall mean elements of the Web Site to be delivered by
ORGANIC to CUSTOMER hereunder as specified in any Authoring Services Statement
of Work.
1.3 "Functional Specifications" shall mean the mutually agreed upon
specifications for functionality of the Web Site as set forth in any Authoring
Services Statement of Work.
1.4 "HTML Files" shall mean files in Hyper Text Markup Language which
contain Customer Content.
1.5 "Launch Date" shall mean the date the Web Site becomes accessible to
CUSTOMER's end-users.
1.
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1.6 "Organic Pre-existing Software" shall mean the object code form of the
computer software programs previously developed and as modified and provided by
ORGANIC pursuant to this Agreement, which will be listed in Schedule D. Organic
Pre-existing Software expressly does not include any Third Party Software or
HTML Files.
1.6.1 "Customer Software" shall mean the object code and source code form
of the computer software programs to be developed by ORGANIC specifically for
CUSTOMER. Customer Software expressly does not include any Third Party
Software, Organic Pre-existing Software, or HTML Files.
1.7 "Other Organic Material" shall mean material (other than the Organic
Pre-existing Software, Customer Software, and Customer Content) developed by
ORGANIC and supplied to CUSTOMER hereunder in order to support the Organic Pre-
existing Software, Customer Software, or other ORGANIC products and service
offerings (e.g., http configurations), which will be listed in Schedule F.
1.8 "Production Specifications" shall mean the specification of the
digitized format in which Customer Content is to be delivered to or formatted by
ORGANIC, as applicable, as set forth in any Authoring Services Statement of
Work.
1.9 "Server Usage Data" shall mean server usage data and statistics related
to the Web Site generated by the Organic Pre-existing Software and Customer
Software in form and substance to be mutually-agreed upon by the parties.
1.10 "Services" shall mean the services to be provided by ORGANIC pursuant
to this Agreement as set forth in Schedule A.
1.10.1 "Authoring Services" shall mean design, authoring, programming
and set up services as necessary to: (i) modify existing proprietary ORGANIC
technology, trade secrets and know-how to produce the Organic Pre-existing
Software and Customer Software; and (ii) create Deliverables as set forth in
Schedule A-1 or any other document in substantially the same format which is
attached hereto upon the written mutual agreement of the parties (each, an
"Authoring Services Statement of Work").
1.11 "Third Party Content" shall mean any data, text, audio files, video
files, graphics or other materials posted to or incorporated into the Web Site
other than by CUSTOMER or ORGANIC.
1.12 "Third Party Software" shall mean the object code form of computer
software programs proprietary to third parties (other than CUSTOMER or ORGANIC)
which may be used in conjunction with the Organic Pre-existing Software and
Customer Software to achieve the desired functionality of the Web Site.
1.13 "Web Site" shall mean the site on the World Wide Web identified in
Schedule C.
2. SERVICES.
2.
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2.1 Authoring Services.
2.1.1 Schedule for Provision of Authoring Services. ORGANIC shall
provide Authoring Services and Deliverables in accordance with the schedule(s)
set forth in the Authoring Services Statement(s) of Work. In connection with
Authoring Services, CUSTOMER shall deliver to ORGANIC all Customer Content
selected by CUSTOMER for incorporation into the Web Site on or before the dates
specified in the Authoring Services Statement(s) of Work. In the event CUSTOMER
fails to deliver such Customer Content in accordance with the schedule, or to
timely take any material action required of CUSTOMER by any Authoring Services
Statement of Work, the parties shall negotiate in good faith a new delivery and
fee schedule for provision of the corresponding Authoring Services by ORGANIC.
2.1.2 Formatting of Customer Content. Customer shall use reasonable
commercial efforts to deliver the Customer Content to ORGANIC in accordance with
the Production Specifications. In the event CUSTOMER does not deliver to ORGANIC
Customer Content that complies with the Production Specifications on or before
the applicable delivery date, ORGANIC shall notify CUSTOMER that the Customer
Content is non-complying and shall convert the non-complying Customer Content to
comply with the Production Specifications at a price to be agreed upon.
2.1.3 Acceptance of Deliverables. ORGANIC shall notify CUSTOMER when a
Deliverable has been completed and sent to CUSTOMER for acceptance. Notification
by e-mail shall constitute sufficient notice for this Section 2.1.3. Within
fifteen (15) days from the receipt by CUSTOMER of any Deliverable pursuant to
any Authoring Services Statement of Work, CUSTOMER shall provide ORGANIC with
written notice of any failure of such Deliverable to conform to the
specifications applicable to such Deliverable. ORGANIC and CUSTOMER shall review
the objections, and ORGANIC will use commercially reasonable efforts to correct
any non-conformities with the specifications and provide CUSTOMER with a revised
Deliverable within fifteen (15) days. CUSTOMER shall be deemed to have accepted
a Deliverable if ORGANIC does not receive written notice of CUSTOMER's
objections within fifteen (15) days of CUSTOMER's receipt of such Deliverable.
2.2 Change Orders. In the event that CUSTOMER wishes to request a material
change to any of the Services set forth in Schedule A, CUSTOMER shall submit a
"Change Order" to ORGANIC substantially in the form set forth in Schedule B.
Within five (5) business days of receipt of the Change Order, ORGANIC will
submit to CUSTOMER the revised fees, delivery schedules and other information
reflecting the impact of the additional or different Services ("Change Order
Response"); provided, however, if the requested change in Services is so
substantial that, in the reasonable judgment of ORGANIC, a complete Change Order
Response is impossible to formulate within five (5) business days, ORGANIC will
provide to Customer a schedule for formulating the Change Order Response.
Customer shall accept or reject the Change Order Response within five (5)
business days of receipt, and shall be deemed to have rejected the Change Order
Response unless CUSTOMER notifies ORGANIC of acceptance of the Change Order
Response within such five (5) business day period. ORGANIC will continue work
pursuant to the existing Schedule A, and will not be bound by any Change Order,
until the
3.
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applicable Change Order is accepted in accordance with this Section 2.2. ORGANIC
will use commercially reasonable efforts to meet rush orders outside the
original scope of work and delivery schedules in Schedule A, but such rush
orders shall be billed at higher rates than ORGANIC's standard hourly rates,
which higher rates will be indicated in the Change Order Response.
3. PROPRIETARY RIGHTS; LICENSE GRANTS.
3.1 License to Customer. ORGANIC hereby grants CUSTOMER a non-exclusive,
perpetual, royalty free, fully paid, non-transferable (except in accordance with
this Agreement) license throughout the universe to use, copy, modify, adapt,
translate, create derivative works based upon the licensed materials, reproduce,
distribute, publicly perform, publicly display, and digitally perform the
Organic Pre-existing Software and Other Organic Material solely in connection
with the normal operation of the Web Site (including, without limitation, the
display of Customer Content).
3.2 License to Organic. CUSTOMER grants to ORGANIC a perpetual, non-
exclusive, royalty free, fully paid license throughout the universe to use,
copy, modify, adapt, translate, sub-license through multiple tiers, create
derivative works based upon the licensed materials, reproduce, distribute,
publicly perform, publicly display, and digitally perform the Customer Software
that is specifically developed for CUSTOMER by ORGANIC. ORGANIC may not use such
Customer Software source code obtained through this license on competitive
businesses of CUSTOMER. A competitive business of CUSTOMER, for the sole purpose
of limiting the scope of the license granted hereunder, is defined as a business
that derives more than fifty (50%) percent of its revenues from the sale of
sporting goods, athletic footwear, or athletic apparel.
3.3 Property Rights and Ownership. The Web Site shall consist of, and shall
operate in conjunction with, multiple elements, all of which are subject to
certain intellectual property rights. The parties' respective rights with
respect to such elements shall be as set forth below. For purposes of this
Agreement, the term "ownership" shall refer to ownership of all right including,
without limitation, "Intellectual Property Rights" (defined below), title and
interest in and to the respective elements, including, but not limited to, all
patent, copyright, trade secret, trademark and any other similar intellectual
property rights therein, as applicable. "Intellectual Property Rights" shall
mean all intellectual property rights and industrial property rights (throughout
the universe, in all media, now existing or created in the future, for all
versions and elements, in all languages, and for the entire duration of such
rights) arising under statutory or common law, contract, or otherwise, and
whether or not perfected, including without limitation, all (a) patents,
reissues of and reexamined patents, and patent applications, whenever filed and
wherever issued, including without limitation, continuations, continuations-in-
part, substitutes, and divisions of such applications and all priority rights
resulting from such applications; (b) rights associated with works of authorship
including without limitation copyrights, moral rights, copyright applications,
copyright registrations, synchronization rights, mask work rights, mask work
applications, mask work registrations; (c) rights associated with trademarks,
service marks, trade names, logos, trade dress, and the applications for
registration and registrations thereof; (d) rights relating to the protection of
trade secrets and confidential information; (e) rights analogous
4.
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to those set forth in this Section 3.3 and any and all other proprietary rights
relating to intangible property; and (f) divisions, continuations, renewals,
reissues and extensions of the foregoing (as and to the extent applicable) now
existing, hereafter filed, issued, or acquired.
<TABLE>
<CAPTION>
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Elements Ownership/Rights
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<S> <C>
Customer Content unmodified by ORGANIC. [*] has [*] ownership.
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Customer Content created for CUSTOMER by ORGANIC and [*] has [*] ownership.
paid for by CUSTOMER.
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Modifications to Customer Content by ORGANIC, or by [*] has [*] ownership.
CUSTOMER using self-authoring tools ("Modified
Content").
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Domain name for Web Site. [*] has [*] ownership and shall be the sole contact
for all purposes for the registration of the domain
name.
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HTML Files. [*] has [*] ownership
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Commissioned artwork or musical pieces authored or As between ORGANIC and CUSTOMER, [*] have ownership.
composed by third parties. ORGANIC's incorporation of third party artwork and
musical pieces into any Deliverable shall be subject
to CUSTOMER's approval, and [*] shall be responsible
for obtaining any necessary licenses for such
materials at its own expense.
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Third Party Software. As between ORGANIC and CUSTOMER, [*] have ownership.
ORGANIC's incorporation of Third Party Software into
any Deliverable shall be subject to CUSTOMER's
approval, and [*] shall be responsible for obtaining
any necessary licenses to such materials at its own
expense.
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</TABLE>
5.
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<TABLE>
<CAPTION>
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Elements Ownership/Rights
- ----------------------------------------------------------------------------------------------------------------
<S> <C>
Organic Pre-existing Software. [*] has [*] ownership. CUSTOMER is granted a license
to the Organic Pre-existing Software as set forth in
Section 3.1 of this Agreement.
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Server Usage Data. [*] has [*] ownership.
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Other Organic Material. [*] has [*] ownership of such developed material.
CUSTOMER is granted a license to the Other Organic
Material as set forth in Section 3.1 of this
Agreement.
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Customer Software. CUSTOMER has sole ownership of Customer Software.
ORGANIC is granted a license to Customer Software as
set forth in Section 3.2 of this Agreement.
- ----------------------------------------------------------------------------------------------------------------
</TABLE>
3.3.1 Assignment of Intellectual Property Rights. To the extent that some
or all rights, including without limitation, Intellectual Property Rights,
title, and interest in and to an element do not lie, upon creation, exclusively
with respective party, the other party irrevocably sells, assigns, transfers,
and sets over exclusively to the respective party all rights, including without
limitation, Intellectual Property Rights, title, and interest in and to the
element or any component of the element, whether completed or not, and the other
party reserves no rights in such element. If the other party has any such
rights that cannot be assigned to the respective party, the other party waives
the enforcement of such rights, and if the other party has any rights that
cannot be assigned or waived, the other party hereby grants to the respective
party an exclusive, royalty-free, perpetual, irrevocable, transferable
(including without limitation, sublicensing), unlimited, license, throughout the
universe, in all media, now existing or created in the future, for all versions
and elements, and in all languages, to use, copy, distribute, create derivative
works of, publicly perform, publicly display, digitally perform, make, have
made, offer for sale and import, and sell, such rights for the entire duration
of such rights.
3.4 Supporting Documents. Each party agrees to execute any additional
documents reasonably necessary to effect and evidence the other party's rights
(at such other party's request and sole expense) with respect to the elements
set forth above.
3.5 Proprietary Notices. All copies of the Organic Pre-existing Software
and Other Organic Materials made by CUSTOMER shall contain copyright and other
proprietary notices in the same manner in which ORGANIC incorporates such
notices in the Organic Pre-existing Software and Other Organic Material or in
any other manner reasonably requested by ORGANIC for the purpose of preserving
ORGANIC's proprietary rights. CUSTOMER agrees not to
6.
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remove, cover or obliterate any copyright notice, trademark or other proprietary
rights notices placed by ORGANIC on or in the Organic Pre-existing Software or
the Other Organic Material.
4. PAYMENT.
4.1 Services. CUSTOMER shall pay to ORGANIC the amounts set forth in the
applicable provisions of Schedule A at the times set forth therein.
4.1.1 Authoring Services. Except for the Common Engine Development and
Retailer Front End Statements of Work described below, all future Authoring
Services will be provided on a time and materials basis or as otherwise agreed
to between the parties and specified in the applicable Authoring Services
Statement of Work. ORGANIC's current standard hourly rates are shown on Schedule
E. ORGANIC's standard hourly rates are revised annually, effective January 1 of
each year; provided, however, that any increase in such rates shall only apply
to CUSTOMER to the extent that ORGANIC has provided CUSTOMER with at least
thirty (30) days prior written notice of such increase. In any event, the new
rates will not apply to any Statement of Work which has already been signed or
performance of which has already begun. CUSTOMER acknowledges and agrees that
the Projected Cost is simply an estimate based on the facts and circumstances
known to CUSTOMER and ORGANIC at the time the estimate is made. Certain factors,
including without limitation, changes in functionality and delivery schedules,
delays in obtaining materials from CUSTOMER, delays in obtaining approvals from
CUSTOMER, or delivery by CUSTOMER of materials that do not meet the Production
Specifications, may result in the Projected Cost being exceeded; provided,
however, that ORGANIC will notify CUSTOMER as soon as reasonably practicable
when ORGANIC expects that the Projected Cost will be exceeded. However, ORGANIC
shall have no obligation to deliver the final Deliverable or launch the Web Site
prior to full payment of all outstanding invoices.
For the GSI Common Engine Development and Retailer Front End Initiative,
ORGANIC will invoice CUSTOMER a total fixed monthly fee of [*] on the first of
each month from May 1, 1999 through September 1, 1999. All payments are due [*]
days from the invoice date except for the final Common Engine Development
payment, which is due [*] after [*]. The monthly fixed fee will be broken down
into 7 separate monthly invoices; one for the Common Engine Development, and 6
for each Retailer Front End, as follows:
GSI Common Engine Development [*]/month.
6 Retailer Front Ends ([*]/per x 6) [*]/month.
4.2 Taxes. In addition to the fees due as specified above, CUSTOMER shall
pay any and all federal, state and local sales, use, value added, excise, duty
and any other taxes which may be incurred in connection with performance of this
Agreement, except that taxes on ORGANIC's income shall be the sole
responsibility of ORGANIC.
4.3 Payments. Amounts are due [*] after receipt of invoice. CUSTOMER will
be notified if a payment has not been received within thirty (30) days of
invoice date and
7.
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CUSTOMER will then have a cure period of ten (10) business days to remit
payment. Payments not received within the cure period will bear interest at one
and one-half percent (1.5%) per month or the maximum rate permitted by law,
whichever is less. All payments made pursuant to this Agreement shall be made in
U.S. dollars.
5. LIMITED WARRANTY.
5.1 Software Warranty. ORGANIC represents and warrants to CUSTOMER that the
Organic Pre-existing Software and Customer Software furnished hereunder, when
properly installed, properly used and unmodified by CUSTOMER, will perform
substantially in accordance with the Functional Specifications. ORGANIC's
warranty shall extend for a period of [*] from the Launch Date ("Warranty
Period"). ORGANIC's sole obligation, and CUSTOMER's sole remedy, for a breach of
the warranty set forth in this Section 5.1 shall be for ORGANIC, at its own
expense, to use commercially reasonable efforts to [*] which fail to perform in
accordance with the Functional Specifications as a result of the Organic Pre-
existing Software's or Customer Software's failure to comply with this warranty.
All warranty claims shall be made in writing to ORGANIC within the Warranty
Period. CUSTOMER agrees to reimburse ORGANIC for the expense of investigating
any warranty claim made by CUSTOMER whereby the investigation reveals that the
cause of the non-performance is not covered under this Section 5.1 warranty
provision. ORGANIC's warranty obligations are solely for the benefit of
CUSTOMER, who has no authority to extend or transfer this warranty to any other
person or entity.
5.2 Disclaimer of Other Warranties. THE EXPRESS WARRANTY SET FORTH IN
SECTION 5.1 IS THE SOLE AND EXCLUSIVE WARRANTY MADE BY ORGANIC TO CUSTOMER
PURSUANT TO THIS AGREEMENT, AND ORGANIC EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES
OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
5.3 Encryption and Security. Unless expressly incorporated in the
Functional Specifications, ORGANIC makes no warranties and shall have no
liability in connection with the effectiveness of any encryption or security
system used by or for the Web Site.
5.4 Discontinuance or Regulation of the Internet. CUSTOMER acknowledges and
agrees that the Internet (including without limitation the World Wide Web) is a
network of private and public networks, that ORGANIC has no control over the
Internet, and that ORGANIC is therefore not liable for the discontinuance of
operation of any portion of the Internet or possible regulation of the Internet
which might restrict or prohibit the operation of the Web Site.
6. INTELLECTUAL PROPERTY INDEMNIFICATION.
6.1 Organic.
8.
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6.1.1 Except as provided in Section 6.1.2, ORGANIC, at its own cost
and expense, shall defend, indemnify and hold harmless CUSTOMER and any of its
officers, directors, employees or agents, from and against all damages,
expenses, liabilities and other costs (including reasonable attorneys' fees)
arising from or relating to a claim that the Organic Pre-existing Software or
Customer Software, as delivered to CUSTOMER by ORGANIC, [*]; or to a claim that
use or publication of the Organic Pre-existing Software or Customer Software [*]
(whether such right is statutory, contractual or common law); provided that: (i)
CUSTOMER notifies ORGANIC promptly in writing of any such claim; (ii) ORGANIC
has the sole control of the defense and all related settlement negotiations; and
(iii) CUSTOMER provides ORGANIC with all reasonably requested assistance,
information, and authority to perform the foregoing at ORGANIC's expense.
6.1.2 ORGANIC shall have no liability for any claim of infringement
based on (i) [*] if the infringement would have been avoided by [*]; (ii) [*];
(iii) the [*] if such infringement would have been avoided by [*]; or (iv) [*].
In the event the Organic Pre-existing Software or Customer Software is held to,
or ORGANIC believes is likely to be held to, infringe the intellectual property
rights of a third party, ORGANIC shall have the right at its sole option and
expense to: (i) [*] so that it is non-infringing and qualitatively and
functionally equivalent to the Organic Pre-existing Software and Customer
Software; (ii) [*]; or (iii) if (i) is not within Organic's capability and (ii)
is not commercially reasonable, Organic shall have the right to do the
following: (a) [*] immediately upon notice to CUSTOMER; (b) if applicable,
notify CUSTOMER pursuant to Section 6.1.3 below that use of the Customer
Software is infringing the intellectual property rights of a third party; and
(c) [*] which will not be available as a result of the loss of the Organic Pre-
existing Software license and the loss of the ability to use the infringing
portions of the Customer Software.
6.1.3 ORGANIC shall NOT indemnify CUSTOMER against any damages, expenses,
liabilities and other costs (including reasonable attorneys' fees) that occur
from use of the Customer Software by CUSTOMER after CUSTOMER has received
written notice from ORGANIC that the Customer Software is infringing a third
party copyright, trademark, or other intellectual property right of any third
party in any jurisdiction, or constitutes defamation or a violation of the
privacy, publicity, or other similar rights of any third party.
This Section 6.1 sets forth CUSTOMER's sole and exclusive remedy for
intellectual property infringement by ORGANIC.
6.2 Customer.
6.2.1 CUSTOMER, at its own cost and expense, shall defend, indemnify
and hold harmless ORGANIC and any of its officers, directors, employees or
agents, from and against all damages, expenses, liabilities and other costs
(including reasonable attorneys' fees) to the extent arising from or relating to
a claim that: (i) the Customer Content, Modified Content or Third Party Content
[*]; (ii) use or publication of the Customer Content, Modified Content or Third
Party Content [*] (whether such right is statutory, contractual or common law);
or (iii) the
9.
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operation of the Web Site [*]; provided that: (i) ORGANIC notifies CUSTOMER
promptly in writing of any such claim; (ii) CUSTOMER has the sole control of the
defense and all related settlement negotiations; and (iii) ORGANIC provides
CUSTOMER with all reasonably requested assistance, information, and authority to
perform the foregoing at CUSTOMER's expense.
7. LIMITATIONS ON LIABILITY.
7.1 Total Damage Limitation. EXCEPT FOR THE INTELLECTUAL PROPERTY
INDEMNIFICATIONS SET FORTH IN SECTIONS 6.1.1 AND 6.2.1 HEREINABOVE, AND THE
CONFIDENTIALITY PROVISIONS IN SECTION 9 BELOW, IN NO EVENT SHALL EITHER PARTY'S
LIABILITY TO THE OTHER ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE
TOTAL AMOUNT PAID BY CUSTOMER TO ORGANIC HEREUNDER DURING THE [*] MONTH PERIOD
IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, REGARDLESS OF THE
FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE.
7.2 No Consequential Damages. EXCEPT FOR THE INTELLECTUAL PROPERTY
INDEMNIFICATIONS SET FORTH IN SECTIONS 6.1.1 AND 6.2.1 HEREINABOVE, AND THE
CONFIDENTIALITY PROVISIONS IN SECTION 9 BELOW, NEITHER PARTY SHALL BE LIABLE FOR
ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES
ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. TERM AND TERMINATION.
8.1 Term. The term of this Agreement shall commence on the Effective Date
and continue until terminated by either party pursuant to this Section 8.
8.2 Termination for Cause. This Agreement may be terminated by either party
in the event of any material breach of any of the terms or conditions of this
Agreement by the other party, which breach continues in effect after the
breaching party has been provided with written notice of breach and thirty (30)
days to cure such breach.
8.3 Termination At Will. This Agreement may be terminated by either party
upon ninety (90) days written notice. Authoring Services which are in progress
at the time of such notice will continue, and CUSTOMER shall make all applicable
payments in accordance with the schedule set forth in any applicable Authoring
Services Statement of Work until the effective date of termination pursuant to
this Section 8.3.
8.4 Effect of Termination. In the event that this Agreement is terminated
either by CUSTOMER under Section 8.3 or by ORGANIC pursuant to Section 8.2,
while ORGANIC is in the course of providing Authoring Services to CUSTOMER,
ORGANIC shall be entitled to retain the Retainer(s) in addition to all fees paid
to ORGANIC in connection with all Services
10.
<PAGE>
performed hereunder, except to the extent that the sum of fees collected and the
Retainer(s) exceed the Projected Cost(s) (as adjusted by mutual written
agreement of the parties previous to the effective date of termination). In the
event that this Agreement is terminated either by CUSTOMER pursuant to Section
8.2 or by ORGANIC under Section 8.3, ORGANIC shall be entitled to a prorated
portion of fees equivalent to the Services performed up until the date of
termination.
8.5 Survival. Sections 3, 5, 6, 7, 8, 9 and 10 shall survive any
termination or expiration of this Agreement; provided, however, that if ORGANIC
terminates this Agreement pursuant to Section 8.2, Section 3.1 will not survive
such termination.
9. CONFIDENTIALITY.
9.1 Confidential Information. Each party acknowledges that, in connection
with the performance of this Agreement, it may receive Confidential Information
of the other party. For the purpose of this Agreement, "Confidential
Information" shall mean information or materials that the party receiving the
information (the "Receiving Party") knows or has reason to know is the
confidential or proprietary information of the party disclosing the information
(the "Disclosing Party"), either because such information is marked or otherwise
identified by the Disclosing Party as confidential or proprietary, has
commercial value, or is not generally known in the Disclosing Party's trade or
industry. Confidential Information shall include, without limitation: (a)
concepts and ideas relating to the development and distribution of content in
any medium; (b) trade secrets, drawings, inventions, know-how, software
programs, and software source documents; (c) information regarding plans for
research, development, new service offerings or products, marketing and selling,
business plans, business forecasts, budgets and unpublished financial
statements, licenses and distribution arrangements, prices and costs, suppliers
and customers; and (d) existence of any business discussions, negotiations or
agreements between the parties.
9.2 Confidentiality. The Receiving Party hereby agrees: (i) to hold and
maintain in strict confidence all Confidential Information of the Disclosing
Party and not to disclose it to any third party; and (ii) not to use any
Confidential Information of the Disclosing Party except as permitted by this
Agreement or as may be necessary for the Receiving Party to perform its
obligations under this Agreement. The obligations and restrictions imposed by
this Section 9 shall terminate two (2) years after the expiration or termination
of this Agreement.
9.3 Exceptions. Notwithstanding the foregoing, the parties agree that
Confidential Information will not include any information that: (i) was in the
public domain at the time it was communicated to the Receiving Party by the
Disclosing Party; (ii) entered the public domain subsequent to the time it was
communicated to the Recipient by the Disclosing Party through no fault of the
Receiving Party; (iii) was in the Receiving Party's possession free of any
obligation of confidence at the time it was communicated to the Receiving Party
by the Disclosing Party; (iv) was rightfully communicated to the Receiving Party
by a third party, free of any obligation of confidence, subsequent to the time
it was communicated to the Receiving Party by the Disclosing Party; or (v) was
developed by employees or agents of the Receiving Party
11.
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independently of and without reference to any information communicated to the
Receiving Party by the Disclosing Party. In addition, the Receiving Party may
disclose the Disclosing Party's Confidential Information in response to a valid
order by a court or other governmental body, as otherwise required by law, or as
necessary to establish the rights of either party under this Agreement;
provided, that the Receiving Party gives reasonable and timely notice to the
Disclosing Party.
10. GENERAL PROVISIONS.
10.1 Force Majeure. In the event that either party is unable to perform
any of its obligations under this Agreement or to enjoy any of its benefits
because of any event beyond the reasonable control of the affected party
including, but not limited to, natural disaster, acts of God, actions or decrees
of governmental bodies or failure of communications lines or networks (a "Force
Majeure Event"), the party who has been so affected shall promptly give written
notice to the other party and shall use its best efforts to resume performance.
Upon receipt of such notice, all obligations under this Agreement shall be
immediately suspended for the duration of such Force Majeure Event.
10.2 Notice. All notices permitted or required under this Agreement shall
be in writing and shall be given by personal delivery, facsimile transmission or
by certified or registered mail, return receipt requested, and shall be deemed
given upon the earlier of actual receipt, five (5) days after deposit in the
mail, or receipt by sender of confirmation of facsimile transmission. Notices
shall be sent to the following addresses (or such other address as either party
may specify in writing):
If to ORGANIC, INC.:
ORGANIC
71 West 23rd Street, 14th Floor
New York, NY 10010
Attention: Jeanette McClennan
Telephone: [*]
Facsimile: [*]
E-mail: [*]
and
510 Third Street, Suite 540
San Francisco, California 94107
Attention: Jeffrey Lazarto
Telephone: [*]
Facsimile: [*]
E-mail: [*]
If to CUSTOMER:
12.
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Global Sports Interactive, Inc.
555 South Henderson Road
King of Prussia, PA 19054
Attention: Michael Golden
Telephone: [*]
Facsimile:
E-mail: [*]
10.3 Waiver. No delay or failure on the part of any party hereto in
exercising any right, power or privilege under this Agreement shall impair any
such right, power or privilege or be construed as a waiver of any default or any
acquiescence therein. No single or partial exercise of any such right, power or
privilege shall preclude the further exercise of such right, power or privilege,
or the exercise of any other right, power or privilege. No waiver shall be valid
against any party hereto unless made in writing and signed by the party against
whom enforcement of such waiver is sought and then only to the extent expressly
specified therein.
10.4 Partial Invalidity. In the event any one or more of the provisions of
this Agreement shall for any reason be held to be invalid, illegal or
unenforceable, the remaining provisions of this Agreement shall be unimpaired
and the invalid, illegal or unenforceable provision shall be construed to be
amended in order to avoid such invalidity, illegality or unenforceability while
preserving as closely as possible the economic intent and effect of the parties.
10.5 Governing Law. This Agreement, the rights and obligations of the
parties hereto, and any claims or disputes thereto, shall be governed by and
construed in accordance with the laws of the State of New York (excluding the
choice of law rules thereof).
10.6 Assignment. Neither party shall have the right to assign this
Agreement or licenses granted under this Agreement without the prior written
consent, which consent shall not be unreasonably withheld, of the other party;
provided, that either party shall have the right to assign this Agreement or
licenses granted under this Agreement to any person or entity that acquires or
succeeds to all or substantially all of such party's business or assets upon
written notice to the other party.
10.7 Publicity. Within a time frame mutually agreed upon by the parties,
the parties shall mutually agree on a joint press release announcing the
existence of this Agreement. Neither party will use the other party's name,
domain name, logo, trademark or service mark in advertising or publicity without
obtaining the other party's prior written consent. CUSTOMER shall allow ORGANIC
to place screen shots and links to the Web Site on ORGANIC's external web site
at www.organic.com (or such alternative URL as ORGANIC may designate from time
to time).
10.8 Entire Agreement; Amendment. This Agreement, together with the
attached schedules hereto and made a part hereof, all of which are incorporated
herein by reference,
13.
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constitute the entire agreement between the parties hereto with respect to the
transactions contemplated herein, and supersede all prior or contemporaneous
oral and written agreements, commitments or understandings with respect to the
matters provided for herein. This Agreement will govern all schedules attached
hereto; provided, however, that in the event of any conflict between the terms
and conditions of this Agreement and any schedule, the terms and conditions of
such schedule shall govern, but only to the extent of such conflict and only in
connection with interpretation of the applicable schedule. No amendment,
modification or discharge of this Agreement shall be valid or binding unless set
forth in writing and duly executed and delivered by the party against whom
enforcement of the amendment, modification, or discharge is sought.
10.9 Headings. Section headings contained in this Agreement are inserted
for convenience or reference only, shall not be deemed to be a part of this
Agreement for any other purpose, and shall not in any way define or affect the
meaning, construction or scope of any of the provisions hereof.
10.10 Execution in Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, and all of which,
when taken together, shall constitute one and the same instrument.
10.11 Independent Contractors. The relationship of the parties hereunder
shall be that of independent contractors. Nothing herein shall be construed to
constitute a partnership between or joint venture of the parties, nor shall
either party be deemed the agent of the other or have the right to bind the
other in any way without the prior written consent of the other.
10.12 Jurisdiction. All disputes arising out of or relating to this
Agreement shall be submitted to the exclusive jurisdiction of the state and
federal courts in the County and State of New York, and each party irrevocably
consents to such personal jurisdiction and waives all objections thereto.
In Witness Whereof, the parties have caused their duly authorized
representatives to enter into this Agreement to be effective on the Effective
Date set forth above.
ORGANIC, INC. GLOBAL SPORTS INTERACTIVE,INC.
By: By:
--------------------------- -----------------------------
Title: Title:
------------------------ --------------------------
Date: Date:
------------------------- ---------------------------
STATEMENT OF WORK 1.1 SCHEDULE A
Global Sports Interactive
Common Engine
July 1, 1999
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ORGANIC Statement of Work
PROJECT OVERVIEW
Selling sporting goods merchandise on the Internet is an untapped market. In
an attempt to leverage retailer brand identity and to offer premiere
development services. CSI will provide an e-commerce solution that enables
traditional sporting goods retailers to quickly enter the Internet market. At
the core of this solution is the Common Engine. a flexible framework which
provides a robust and feature-complete c-commerce tool-set for a sporting-
goods retailer. It can be customized for a wide variety of product
categorization. front-end look and feel. and functionality needs.
The goal of the Common Engine is to produce a flexible framework for an
interface that enables the user to explore, browse. search and purchase
sporting goods online with maximum ease. Additional tools will also give
administrators accurate, immediate information about a site's performance in a
straightforward manner. Organic will develop high-level graphical user
interfaces that allow multiple audiences (merchandisers, webmasters, etc.) to
interact and view relevant statistics of a website with an unparalleled degree
of detail. This will help merchandisers make buying decisions based on users
purchasing. It will let marketers see the immediate results of recently
adjusted promotions and price points. Together, the reporting and
administration tools will close the loop between site performance and customer
conversion rate. The front-end creation of the user-experience will be handled
by teams operating independently of the Common Engine team, necessitating that
comprehensive documentation of the framework will be completed by Organic.
TARGET AUDIENCE
The Common Engine will provide functionality for two target audiences. The
primary audience is the user of the front-end retail websites. Since there
are various primary audiences for each retailer and the range of sporting
goods merchandise is so wide. the user's attributes must be generalized to
account for all possible scenarios of web purchasers. The secondary user is
the administrator of the GSI product information database and of the front-
ends. Depending on the level of involvement. both a GSI merchandiser and
retailer will need access to reporting and content-management tools. It is
expected that neither group will have an extensive knowledge of the web.
preferring a softer user-interface to manage their respective
responsibilities It is required that both audiences have Internet access.
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ORGANIC Statement of Work
Project Specifications
Functional Goals
Create a best-of-breed e-commerce engine designed from the ground-up to
handle a sporting goods product information database.
Create an easy-to-use path for customers to purchase products online.
Create a group of custom-tailored, point and click. high-level graphical user
interfaces for the secondary audience.
- to gauge the performance of one or more sites via reporting and content-
administration.
- to synchronize a retailer's product information database with a
retailer's website's product information database.
- to execute site-wide changes such as promotions
Develop and document a customizable framework for retailer front-ends
including- an area where retailers can host press releases. human resource
information. and other non-e-commerce-related material.
Give retailers the ability to incorporate their individual online brand
within the framework of a 051 website.
Implement a system where retailers can incorporate branded categorization of
their products.
Interactive Design Requirements
Component List
The following is a list of the basic features that are required to achieve the
functional goals. These components will allow the primary user to investigate,
learn about, select, and purchase various sporting goods online through a
variety of retail outlets. These components will also allow for easy
administration and report-viewing by the secondary audience. It is assumed that
Organic will deliver the toolkit necessary to create these components, but will
not deliver the components themselves - this is the responsibility of the front-
end developers.
Homepage
The homepage will be presented as a retailer-specific brand statement. Users
will have the optional ability to 'Sign In', where they will be presented with a
login/password and/or the ability to join. This is the quickest path for users
who want to take advantage of membership benefits (streamlined purchase path.
access to any restricted areas, etc.) The user will have access to company
information (Press Releases. Human Resources. etc.) from the homepage. The
retailer-specific global navigation will be introduced to the user. including a
quick search (keyword only). Featured products will also be displayed on the
homepage.
Product Bundles/Promotions
Featured products and seasonal promotions are products that are displayed with
additional information or with a special markup. For instance, a winter season
promotion may bundle a set of skis. boots and winter apparel for a limited time.
These related products can be bundled and offered to the user as one purchase.
rather than have them navigate through a string- of related product pages.
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ORGANIC Statement of Work
Standard Search
The Standard Search will allow for searching by keyword and/or on a number of
criteria such as Sport, Brand. Style and Price. An intuitive means of combining
these parameters will be provided. Keywords will be tagged to every' product
entered in the database by GSI, to allow for the richest set of search results
and minimize dead-end or zero results. Search help will be supplied.
Search Results
Search will have the option to display a list of results with thumbnails and
small descriptions linked to more in depth product descriptions. There will be
a fixed number of product results per page with a clear method of browsing
large result sets. The initial layout will be alphabetically sorted, but will
allow for user-based sorting. Items not in stock will still be displayed but
with an expected availability date and the option to view similar products that
are in stock. There will be no LPC-specific searching method (i.e. size or
color.)
Browse Category/Sub-Category/Family/Sub-Family
Category hierarchies are determined by retailer-specific indexing. These
hierarchies will be based on a default set of categories developed by
Organic/GSI from merchandiser interviews and analyses of retailer product sets.
All categories have subcategories except for collections - the number of
categories reserved for an arbitrary' grouping of products (seasonal. hot
sales, etc.). These collections are also retailer specific. and allow for a
customized browsing experience. Each category will have its own main page
displaying its respective sub-navigation and featured products relevant to the
chosen category. A user may choose to add a selected feature item to their cart
without viewing more in-depth information. Merchandisers must group newly
entered products into multiple categories and subcategories. providing for
separate browsing paths leading to the same product.
Product Page
The logical ending point for any browse or search, the product page will have
the option of displaying:
Price
Brand
Style
Image of product
Product close-up (larger image)
Size Information if applicable
Large description
Enhanced product presentation (high resolution shots) if applicable
Related Products
A mechanism for adding a product to the shopping cart.
Related information (internal) about the product.
Related Products
To encourage browsing and maximize cross-sell opportunities for GSI and its
partners all product pages will include a set of links to related products. For
example if the use has purchased a hockey mask then hockey pucks hockey sticks,
and hockey jerseys might be displayed. These related product listings will be
defined by GSI merchandisers.
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ORGANIC Statement of Work
Product Comparison
The user will have the ability to compare two products so as to make a better,
more informed purchase decision from a product page. GSI merchandisers will pre-
select products from which to draw comparisons. The compare products
functionality will also include a mechanism for adding products to the shopping
cart.
Shopping Cart
Each product that a user selects will appear as a list item n the shopping cart.
The shopping cart product list may contain the name, size (if applicable),
options. quantity, and price of each item; the user will have the option to
change the quantity and/or delete the product from their shopping cart. The
total price of the items in the cart will be presented at all times within the
cart. Users will have the opportunity to continue shopping or proceed directly
to the checkout portion of the transactional process.
Checkout
This series of transactional pages termed 'checkout' refers to the path that is
initiated once the user chooses to make a purchase from their shopping cart. At
the beginning of the checkout process. users who are not already logged-in will
have the option of logging-in. If the user is a member. they will link straight
to a confirmation page with the option of going back to change any information
(this is essentially one-click ordering). Non-registered users will be
encouraged to register so that their shipping and payment information can be
stored and used to streamline future purchases on the site.
In order to improve a user's understanding of the process. clearly defined steps
will be indicated with the user's current position in the process highlighted.
These include.'
Name and address information
Shipping method
Payment method (with Discount Codes)
Information verification (with tax and shipping and handling costs)
Confirmation
Any personal data captured from registration should pre-fill on forms. By
necessity, an inventory check must be performed before confirmation of the
order, and the results returned to the user. If an item is out of stock, the
system will return the range of time the item is most likely to be in-stock. The
purchase order information will be sent to a fulfillment partner for credit card
verification, order processing, fulfillment, and settlement.
Substitute/Similar Products
In the event that a product is out of stock when the user adds it to the
shopping cart. the system will return a list of similar products that the user
may choose from. It is necessary to make sure that the similar product returned
is in stock, otherwise a user will enter a perpetual loop. This feature depends
entirely on tagging supplied by the GSI merchandiser. Accurate tagging will be
crucial to make this feature relevant to users.
One-Click Ordering
One-Click or Express ordering refers to the ability for registered users to
choose a product and complete a transaction to a pre-defined address and payment
method. One-click ordering must be turned on and users must already be logged-in
to take advantage of this feature.
Email Notification
After an order is completed. a confirmation email will be sent to the user of
the fulfillment partner. This will restate the items bought. the order total and
the confirmation number A URL will be supplied to track a user's order. When
an item has shipped the fulfillment partner will send a shipping confirmation
email. This email will provide delivery details such as why certain products
were shipped separately and the associated shipping and handling costs
Promotional emails (advertising, customer retention etc.) will be handled by a
3rd party.
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ORGANIC Statement of Work
Discount Codes
During the checkout process, users may enter a discount code to affect the cost
of products in their cart (i.e. subtract a percentage of the total order cost).
Users may also enter the site through a referred URL that acts as a discount
code for the entire site. Users with one-click ordering enabled will not be
allowed to enter discount codes.
Order Tracking
Users can enter their confirmation number to receive an itemized listing of
their current orders. Since orders from multiple suppliers are likely to ship at
different times, it is likely that a single "order" will have multiple shipping
information. A link will be supplied to a shipper tracking system for immediate
lookup of shipping details. The fulfillment partner will supply all this
information.
User Login/Registration
Users will be encouraged to sign-up with the site to personalize and streamline
their purchasing experience (targeted specials, one-click ordering, etc.) as
well as the site experience. Some areas of the site. such as "edit user account,
will be restricted to registered users. The design of the site will not mandate
signing-in, but will present the option on the homepage and those areas where
signing-in is beneficial/mandatory; to the user. Logging in requires a password
and a user ID (email). A user cannot share log-in information between different
retailers' sites unless the user has voluntarily signed-on with another specific
retailer. At any time, a use-. may Log Out so that future users of the same host
computer may not use the account holder's information for purchases.
User Profile Management
The User Profile Management area allows users to access their personal
information and specify:
Addresses with associated names (Address Book)
Password
Input confirmation number to view order tracking
Turn One-Click ordering on/off
Privacy and security information will be clearly detailed to allay users'
concerns.
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ORGANIC Statement of Work
Engineering Requirements
PURPOSE
The primary function of the Engineering Requirements is to document 051's
objectives from the technical perspective and establish a baseline of
GSI/Organic understanding. It states the project's goals challenges constraints.
and risks, but it stops short of prescribing solutions except to the extent that
specific solutions are prescribed or constrained by client objectives.
prejudices. or requirements.
This document assumes the reader is familiar with Organic process. The
Engineering Requirements is first in the Organic technical workflow 2.1 series.
For information on specific functionality descriptions please consult the
Interactive Design Requirements document For further information on client-side
(browser) technical information, please consult the Production Specifications
document. Both of these documents are part of the Discovery Documents.
OVERVIEW
- --------
The GSI Common Engine is software that will allow sporting goods retailers to
very quickly develop electronic retailing web sites built on top of the Common
Engine. The Common Engine will provide a framework upon which to build an
electronic retailing web site that allows base electronic retailing
functionality and ties into the systems of a fulfillment partner.
Because the Common Engine will be used by many sporting goods retailers it must
be as flexible as possible. It will be designed to handle the vast amount of
different products sold by the sporting goods retailers. To this end the
products in the GSI Common Engine will be database driven, searchable, and
easily updateable.
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ORGANIC Statement of Work
[Picture]
Component Overview
Browser- The browser is what the GSI customer uses to communicate with the GSI
web site.
Apache Web Server- The web server communicates with the customer's browser. It
does this by using HTTP over a TCP/IP network, and accepts data from the user's
browser and returns HTML pages to the browser that are displayed for the user.
It also communicates with the commerce server through the use of the connection
module embedded in the web server.
Dynamo Application Server- The application server performs the business logic
for the system. The application server will be used to perform all functionality
except for fulfillment functions. The application server will communicate with
fulfillment systems by using an SSL connection. Data returned from the
fulfillment systems will be incorporated into the application server.
Transaction Processing Database- The transaction processing database will be
used to store persistent information
Fulfillment Systems- The fulfillment systems are used to do things such as
processing orders, checking inventory levels tracking orders and verifying user
credit card and address data
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ORGANIC Statement of Work
PRELIMINARY SERVER/NETWORK DIAGRAM
[Picture]
A user connects to the web server over the Internet. Certain parts of this
communication, like the transmission of credit card information, are
encrypted and use the HTTPS protocol.
The web system consists of a web server application server transaction
processing database and data warehouse.
The web system will connect to the fulfillment over the Internet. An
encrypted Virtual Private Network (VPN) should be set up to keep this
information secure.
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ORGANIC Statement of Work
The development environment will be located on Organic's network The staging
and production environments will be located on the hosting facility's network.
The staging system will be a duplicate of the production system. The production
system will only be updated by pushing new functionality from the staging system
to the production system. The development system will be used to program new
functionality for the web site.
EXTERNAL SYSTEMS DETAIL
Fulfillment Systems
GSI has chosen as its fulfillment pannier. PFS. On 5/l5/99, PF5 supplied Organic
with an API specifying how the Common Engine product database communicates with
PFS' inventory checking. shipping, and payment processing- systems.
Manufacturer and Retailer Data Feed
Organic will develop a specification for a manufacturer's data feed and a
retailer's data feed to which each manufacturer and retailer will develop their
data feeds.
(a) DEVELOPMENT ENVIRONMENT
Connectivity will be established between Organic and GSI and between Organic and
the fulfillment partner (PFS) through a virtual private network (VPN).
SOLUTION CONSTRAINTS
Privacy and cookie policies- The GSI engine may use cookies to store state
information. but will not require them. Since HTTP is a stateless protocol,
meaning no past or future information is sent with each communication between
the web browser and web server, cookies are used to identify users so that state
information can be stored on the web server and overcome the limitations of
HTTP.
There are no other specific constraints on the engineering solution.
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ORGANIC Statement of Work
PERFORMANCE REQUIREMENTS
- ------------------------
Pages will return in 8 seconds or less over a TI connection.
RELIABILITY REQUIREMENTS
Target Mean Time Between Failure and Mean Time To Repair- These requirements and
fail-over requirements will be determined during the planning phase. It is
assumed that these will be high and low respectively.
Backup/recovery objectives- Specifics will be determined during the planning
phase At a minimum, backups of data will be performed daily.
INFRASTRUCTURE/OPERATIONAL REQUIREMENTS
- ---------------------------------------
Administrative requirements- Access to the servers can be through a secure,
encrypted login over public networks (like SSH). or through a direct leased line
terminal connection into the server.
Hosting facility requirements- The hosting facility used for the GSI Common
Engine site will be manned and accessible 24 hours a day, 7 days a week.
Database. system, and application administrators will be available via pager.
The facility will have redundant power supplies. The hosting facility's internal
network will be fault tolerant. and the GSI Common Engine web system will have
connections to this internal network. Fault tolerance requirements and GSI
Common Engine hardware will be determined during the planning phase.
Organic will develop a Deployment Plan that will detail how to setup and
maintain the system.
QUALITY ASSURANCE REQUIREMENTS
A test plan for the entire system will be developed in conjunction with
GSI. Quality assurance occurs during the entire development process, and
consists of. but is not limited to. regression testing. load testing, and code
reviews. A Q/A plan will be submitted to GSI outlining the Q/A steps to be taken
during all phases of the engine development process.
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ORGANIC Statement of Work
RULES AND RESPONSIBILITIES
Organic's technical role will be designing and implementing the interfaces and
commerce abilities for the engine. During the planning phases, Organic and GSI
will work together to determine site hosting, ongoing maintenance procedures.
and site operations responsibilities as well as defining functionality with more
granularity. Organic will have authority over the fulfillment partner. GSI will
be responsible for providing correct data feeds from manufacturers and
retailers.
RISKS
The GSI engine will have redundant web servers. application servers. and
database servers.
(i) SECURITY
Since the engine is an electronic commerce web site, security is a primary
concern. A Solaris platform will be used to keep the web site system as secure
as possible. Solaris allows easy removal of non-essential services. Solaris
allows administrative access to the servers to be restricted by' a secure shell
or direct terminal connection. Solaris allows auditing of access to the system.
Solaris allows software that performs a single use password system.
Credit card and other sensitive data will be encrypted before being transmitted.
In addition to securing the individual servers used in the system, a firewall
will be used.
GSI will provide Organic with their security guidelines, which Organic will use
in conjunction with its own security' procedures.
a) THIRD PARTY INTEGRATION ISSUES
Fulfillment- A separate fulfillment RFP was developed for potential fulfillment
partners. PFS has been selected as the fulfillment partner for the Common
Engine. and Organic will customize the data model to comply with PFS' API.
LinkShare- (or equivalent) affiliate program component will be integrated into
the system.
ASSUMPTIONS
1. Data feeds from manufacturers and retailers will be delivered in a
format specified by Organic. most likely the JDA retail format of purchase order
lists. Deviation from this format will result in increased development costs and
time.
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ORGANIC Statement of Work
2 The fulfillment partner will have the capability to do address verification.
shipping and handling cost calculation shipping time calculation inventory
level checking, back-orderability checking, order processing, order
tracking, order returns, and e-mail confirmation messages and have the
ability to communicate this information to Organic and customers. This will
be done in real time, not batched.
3 Any fulfillment related e-mail messages will be sent and administered by the
fulfillment partner. Organic will not be responsible for any e-mail
messaging system.
4 LinkShare (or equivalent) return functionality depends on the ability of the
fulfillment partner to support returns.
5 The fulfillment pannier will be able to set up VPNs into the GSI web Site.
6 Reporting will be covered in the functional specifications developed during
the planning phase.
7 Organic will not be implementing Accounting functionality.
---
8 The Common Engine team will construct frontend functional templates which
the front end teams will reference for construction of front end
implementation.
9 Shipping locations are constrained by the fulfillment partner.
10 Product data and other data will require periodic cleansing. archiving and
overall monitoring, which will be performed by GSI.
11 Off the shelf software costs, production software costs and licensing fees
will be borne by the client.
12 Staging and production hardware, software, bandwidth and rack space will be
borne by the client. Staging and production hardware will be located at the
hosting partner's data center.
13 A privacy policy will be formulated during the planning phase for which GSI
will be responsible.
14 No localized versions of the web site will be performed at this time.
15 Only a mod-ID check will be performed on credit cards.
16 Manufacturers will provide product data in 832 EDI or other standardized
format
17 Products from manufacturers will have UPCs. and these UPCs will be unique.
18 Retailers will be able to identify products by UPCs.
19 The home page will be partially hand coded. with specific components.
Additionally, there will be homepage specific administratable items: like
product display, announcements: and links from those announcements within
the site. (similar to a category page administration).
20 Bundled products will be assigned unique "phantom" SKUs by GSI. A bundle
may be constructed with a collection of UPCs. This means that products with
multiple UPCs due to size and or color variations will not be supported in
terms of being able to select attributes. For different size and colors
within a bundle an individual bundle must be created for each variation (ie.
Large blue bundle, or medium tennis bundle etc., a typical product mix of
which would be a medium gripped tennis raquet with a can of balls, and a
tennis bag.)
26.
<PAGE>
ORGANIC Statement of Work
GSl Deliverables
1. Communication line to fulfillment pannier ordered by 6/15/99
2. Data model received from fulfillment partner by 6/2/99
3. API received from fulfillment partner by 6/2/99
4. Manufacturers and retailers will provide product data samples by 6/7/99
5. Retailers will provide product categorization by 6/7/99
6. Communication to manufacturers and retailers identified by 6/15/99
7. Communication lines to manufacturers and retailers ordered by 7/7/99
8. All 3rd party Partnerships related to the "common engine" development must
be finalized by 6/23/99
9. Production hardware approved by 5/25/99
10. Production hardware ordered by 6/4/99
Post-Launch Support
This will be in the form of debugging of the common engine, and its
baseline functional componentry as related to the various front ends interacting
with the common engine. Also, there will be support for debugging the production
environment.
27.
<PAGE>
ORGANIC Statement of Work
Production Requirements
The following is a summary of the Production Requirements. For a more detailed
explanation, please read the Production Requirements Document attached.
OVERVIEW
- --------
Production Requirements represent an agreement between Global Sports Interactive
(GSI) and Organic regarding:
1. Design Requirements for GSI Common Engine
2. Submission of assets to Organic
Through Design Requirements, we will outline parameters for end-user hardware,
software, networking and presentation that the site will adhere to. Design
Requirements include a list of browsers for which the site will be tested for
quality assurance. The Submission Assets guidelines describe the appropriate
methods for submitting digital and non-digital as sets to Organic.
DESIGN REQUIREMENTS
Here is a summary of the design requirements. For a more detailed explanation
the list, the attached Production Requirements document include definitions of
each and some examples which illustrate our arrival at these values.
Standard Viewable Area: 615 x 500
Monitor Resolution: 800 x 600 and greater
Maximum Page Size: 50k, no page exceeding 80k
Connection Speed. 28.8 Kbps and greater
Graphic Formats: G1F89, GIF89a. JPEG
Interactive Elements: HTML, JavaScript 1.1, Dynamo,
dHTML
Standard Viewable Area
This item specifies the width and height of the "above-the-fold" screenful of
information a user should be presented with when arriving at a given page on the
site. Since vertical scrolling allows the user to frame the page presentation
vertically. the "height" number only specifies an ideal arrival state and
provides a positioning point for important information on the page. The "width"
number specifies a standard page width for the site. This relates to the Monitor
Resolution item below.
28.
<PAGE>
ORGANIC Statement of Work
Our recommendation is based on the broad user-base being targeted. including
those surfing from home We recommend a standard viewable area of 61 5x500
pixels. Horizontally, 6 15 to allow for the gutter and window frame pixels added
by most browsers on the right and left. Vertically, 500 to allow for, for
example, the gutter, buttons, location field, window frame and Windows task bar
pixels at the Lop and bottom. Vertical scrolling will be limited to no more than
two and a half screens.
Strategic Requirements (Attached - Schedule D-1)
Measurement and Analysis
Reporting for the Common Engine. its various retailers, its buyers and members.
both in the aggregate and individually is critical in analyzing the flow of
products through the Common Engine and how revenue is managed and inventory is
maintained, promoted. placed and reordered. Thee are three separate reporting
mechanisms necessary to collect all of the data which will provide GSI with a
robust profile of consumer activity on the various front ends. as well as for
shared product inventory I) Reporting based upon the Common Engine database
product contents and the flow of those products through the various front-ends.
2) Reporting based upon the web log of users browsing the site. page views,
session lengths. IP originations. etc.; and 3) Reporting based on the actual
inventory sold, how it was shipped what credit cards were used. etc.
Organic will be responsible for item number I, above. It will provide an
interface for 051 administrators and number crunchers to retrieve information
based on aggregate and individual product sales. aggregate and individual order
history, category and promotion performance, aggregate and individual user
history data, and basic aggregate user and registered member information.
Organic will also enable the database to be assessed by Accrue Measurement and
Analysis software. Accrue provides its own interface for report results and
report queries.
The fulfillment partner, PFS, will be responsible for providing 051 specific
information based upon inventory depletion and product sales statistics and
information at an absolute level.
Measurement and Analysis will be included in the functionality of the
administration of the Common Engine. Reporting will have a simple, clean
interface. which will enable the administrator to generate several reports based
upon the Common Engine product and user activity.
Consumer Research
GSI will be responsible for all consumer research related to the analysis and
research behind promotional placement and inventory based decisions.
29.
<PAGE>
ORGANIC Statement of Work
Estimated Fees
ORGANIC has estimated for Global Sports Interactive (GSI), that the total
projected cost for the Common Engine project will be $3,104,498.00. This fee has
been discounted l5%, from the actual cost of the project. which is
$3,652,350.00. ORGANIC has entered into a fixed bid agreement with GSI and the
cost will not exceed $3,104,498.00, provided that GSI adheres to all of the
following: i) 051 and any third parties deliver all assets and comments to
ORGANIC per the schedule detailed below; and ii) all assets, such as text and
graphics. are delivered to ORGANIC by GSI and any third parts' in conformance
with the specifications provided by ORGANIC; and iii) the scope of the project.
as detailed under the Project Specifications (above) does not change. Any delays
to the schedule caused by GSI's failure to meet their deadlines will result in
additional schedule and budget costs to be paid by GSI. Please see the attached
Schedule A-I for a breakout of Roles and hours allotted for this project.
*Please note that the above cost does not include Site Hosting Office Space.
Software Licenses. or Maintenance. Separate Statements of Work will be created
to include those items.
Payment Schedule
Organic will invoice GSI five (5) equal payments of $620.899.60. Organic will
commence invoicing on a monthly basis starting May 1 1999 and ending on
September 1, 1999 Payments are due 30 days from the invoice date, except for
payment on the last invoice, which is due 10 days after public launch.
Note: Organic's standard policy is to invoice Customer in advance, at the
- ----
beginning of each month for work to be performed in the upcoming month. Our
standard payment policy is payment is due upon receipt of invoice. If payment is
not received within 30 days of the invoice date, then a 1.5% monthly interest
fee will be assessed.
Estimated Delivery Schedule
Both parties agree to make all commercially reasonable efforts to complete the
project in the most timely fashion possible and to adhere to the schedule
detailed below. GSI acknowledges that ORGANIC's ability to meet its delivery
dates, as described below, is subject to: i) the timely receipt of assets and
comments from GSI and third parties; and ii) any and all other events beyond the
control of ORGANIC.
The schedule attached Schedule C-l indicates ORGANIC'S baseline estimate (used
in the preceding Letter of Intent document) regarding the expected number of
business days for development. and between key project events.
Organic estimates a 126.5 day, development period beginning on Monday April
51999 and ending on Friday. October 1. 1999.
30.
<PAGE>
ORGANIC Statement of Work
Notes:
Any and all changes submitted after these comments, with the exception of
debugging, will be considered Change Orders. Customer agrees that this Statement
of Work constitutes all of Organic's responsibilities and duties for the post
discovery development period of the GSI Common Engine project.
Conclusion/Agreement
By signing this document, the parties agree to the basic project requirements.
Customer also agrees that any changes to the Project Specifications may result
in changes in the Fees and Delivery Schedules. Customer further acknowledges
that ORGANIC has made all commercially reasonable efforts to accurately estimate
the Fees and Delivery Schedules in advance of beginning work on the foregoing
project and that the actual Fees and Delivery Schedules may vary from the
estimates. ORGANIC will notify Customer, in writing. as soon as reasonably
practicable. of variations between our estimated schedules and the actual
schedules, per the existing agreement between the parties.
/s/ Jeannette McClennan /s/ John Moerman
VP, Managing Director VP Finance
ORGANIC, INC Global Sports Interactive
Date: Date: 9/17/99
31.
<PAGE>
ORGANIC Statement of Work
Statement of Work 1.1 Schedule A
Global Sports Interactive
Six (6) Front-ends
July 30, 1999
Project Overview
Global Sports has enlisted Organic Online, Inc. (San Francisco, New York. and
Chicago offices) to architect, design. and implement the front-ends of six (6)
sporting goods retailer sites for an October l,. 1999 launch. The front-end
teams (3 teams) will work closely with the Common Engine team in New' York who
is responsible for engineering the back-end c-commerce systems. to leverage and
integrate the back-end architecture within the front-end functionality.
Each Retail front-end site will be designed within its respective brand identity
(and corporate guidelines if applicable). The Front-end sites will promote the
retailer's brand identity a compelling look-and-feel appropriate for the
particular target audience(s), consistent navigation and a clear purchase path.
This Statement of Work should reflect Global Sports Interactive's and Organic's
mutual understanding of Organic's role in the Discovery', Planning, and
Production phases of the October I. Phase I Retailers' site launch. This
document will serve as our mutual acceptance criteria.
Project Duration
May 1st 1999-October 1st, 1999 (Front-end hand-off to Common Engine is 9/1/99)
Project Cost
Organic will utilize its network of offices to plan. design, produce and test up
to eight Retailer Front-ends for the October 1, 1999 launch. At the present
time, Organic has the expectation of developing six (6) Retailer Front Ends at a
total discounted [*] fixed cost of [*].
For the development of each Retailer Front End, Organic estimates a cost of [*]
to be paid by GSI to Organic. The fee is discounted [*] from the actual cost of
each Retailer Front End which is [*]. At the present time, GSI and Organic
estimate that Organic will need to develop six (6) separate Retailer Front Ends
for the October 1,1999 launch.
Organic will invoice GSI [*] ($[*] X 6) a month for five (5) months. Organic
will commence invoicing on May 1. 1999 and end invoicing on September 1. 1999.
Payments are due 30 days from invoice date:
Separate invoices will be delivered monthly for each Retailer)
Please see attached Schedule A-2 for a break out of Rules and Hours allotted for
a single Front end. Please note that the budget allocation is same for all six
(6) retailer front-ends.
32.
<PAGE>
ORGANIC Statement of Work
Organic Deliverables
- --------------------
Discovery
Client kick-off meeting
Requirements Documents
Interactive Design Requirements
Common Engine Partner Specifications
Production Specifications
Planning
Category Tree
Interactive Design Specifications:
Site Architecture map
Schematics
Engineering Functional Specifications
Design Reviews
Front End Copy
Production Art
Production
Approximately 15-18 HTML/JHTML templates
Homepage
Corporate Information section (1 template several static pages)
Standard Search page
Search results page
Browse Category/Sub-Category
Product Page
Related products page
Product Comparison
Shopping Cart page
Checkout
Discount Code entry page
Similar products page
One-click ordering
Order tracking
User login/registration
User profile management
Preview URL
Beta URL
33.
<PAGE>
ORGANIC Statement of Work
GSI Deliverables
- ----------------
Discovery
All retailer brand collateral (digital format preferred)
Planning
Recommended product categorization, based on the GSI merchandisers' product
selections for the given retailer.
ASSUMPTIONS
The project schedule is a binding agreement between GSI and OO. The schedule
indicates client/retailer asset deliverable dates and client/retailer review
cycles; missed due dates for assets or feedback will result in day-for-day
slip in schedule and budgetary implications.
GSI will reimburse Organic at [*] per retailer storefront regardless of
business viability; payment schedule will be determined by GSI and Common
Engine
GSI Account Managers will act in the role of Organic's Associate Client
Partner; this means they are responsible for account development plans,
coordinating2 client meetings. and distributing client contact reports
GSI is responsible for all product descriptions; Organic may provide editorial
for top-level content pages. navitorial copy and Corporate Information
sections as determined by specific retailer need
Travel costs are not included in this estimate and will be billed as out-of-
pocket expenses as incurred
Licensing fees for use of stock photography, original art, fonts etc. are not
included in this estimate.
Common Engine Assumptions
- -------------------------
Common Engine is responsible for all back-end e-commerce architecture and
retailer admin functionality
Common Engine will deliver functional templates for Organic SF, NY, Chicago
implementation
Common Engine is responsible for all retailer Interactive marketing strategies
Schedule
Both parties agree to make all commercially reasonable efforts to complete the
project in the most timely fashion possible and to adhere to the schedule
detailed below. GSI acknowledges that ORGANIC's ability to meet its delivery
dates, as described below, is subject to. i) the timely receipt of assets and
comments from GSI and third parties; and ii) any and all other events beyond the
control of ORGANIC.
The schedule attached Schedule C-2 indicates ORGANIC'S baseline estimate (used
in the preceding Letter of Intent document) regarding the expected number of
business days for development. and between key project events.
Organic estimates a 126.5 day development period beginning on Monday, April 5,
1999 and ending on Friday. October 1, 1999. The Front-ends must all be delivered
to the "Common Engine" team by September 1, 1999.
34.
<PAGE>
ORGANIC Statement of Work
AUTHORING SERVICES FEES
- -----------------------
All invoices will include out-of-pocket expenses in addition to the Authoring
Services fees. All out-of-pocket expenses over $500.00 must be pre-approved by
GSI. If Organic Online, Inc. is asked to provide additional programming,
production or creative design beyond the scope of this Statement of Work, that
will be dealt with in a Change Order.
All terms in this Agreement shall have the same meaning as set forth in the
Omnibus Agreement. Except as expressly modified in this Amendment all of the
terms of the Omnibus Agreement negotiated during the Global Sports Interactive:
Organic Online. Inc. project shall remain in full force and effect.
AGREED TO AND ACCEPTED:
ORGANIC ONLINE INC GLOBAL SPORTS INC
By: /s/ Jeannette McClennan By: /s/ John Moerman
Title: VP Managing Director Title VP Financial
Date: 9/17/99 Date: 9/17/99
35.
<PAGE>
ORGANIC
Schedule B
Change Order Template
Client:
Job:
Date:
This document amends the original Statement of Work dated _______.
Situation
Project Specifications
Technical Implications
Organic Online will provide account management production. creative development.
and quality assurance for this project
Estimated Fees
ORGANIC has estimated that the total projected cost to __________ for the
_________ project will be $______ ORGANIC reasonably believes that this estimate
is within 15% of the actual Cost for this project provided that Customer adheres
to all of the following: i) Customer and any third parties deliver all assets
and comments to ORGANIC . per the schedule detailed below; and ii) all assets
such as text and graphics are delivered to ORGANIC by Customer and any third
parry in conformance with the specifications provided by ORGANIC; and iii) the
scope of the project as detailed under the Project Specifications (above) does
not chance. Any delays to the schedule caused by Customer's failure to meet
their deadlines will result in additional schedule and budget costs to be paid
by Customer.
36.
<PAGE>
ORGANIC
Estimated Delivery Schedule
Both parties agree to make all commercially reasonable efforts to complete the
project in the most timely fashion possible and to adhere to the schedule
detailed below Customer acknowledges that ORGANIC's ability to meet its delivery
dates as described in the attached production schedule is subject to 1) the
timely receipt of assets and comments from Customer and third parties: and ii)
other events beyond the control of ORGANIC.
Please see the attached production schedule for the updated timetable. The new
estimated Launch Date is ________.
Notes:
Any and all changes submitted after these comments. with the exception of
debugging. will be considered change orders. _________ agrees that this
Change Order. coupled with the original Statement of Work, constitutes
all of the responsibilities and duties of ORGANIC for the ____________
project.
By signing this document. the parties agree to the Basic Project Requirements.
Customer also agrees that any changes to the Project Specifications may result
in chances in the Fees and Deliver", Schedules. Customer further acknowledges
that ORGANIC has made all commercially reasonable efforts to accurately estimate
the Fees and Delivery Schedules in advance of beginning work on the foregoing
project and that the actual Fees and Delivery Schedules may vary from the
estimates. ORGANIC will notify Customer, in writing. as soon as reasonably
practicable. of variations between our estimated schedules and the actual
schedules, per the existing agreement between the parties.
_________________________ ________________________________
Jeannette McClennan Name
Managing Director Title
ORGANIC ONLINE INC. Company
Date: Date:
37.
<PAGE>
ORGANIC
Schedule C
The following is a list of names of the Front End Web sites that Organic will be
developing for GSI.
1. www.theathletesfoot.com
-------------------
2. www.dunhamssports.com
-----------------
3. www.mcsports.com
----------------
4. www.sportchalet.com
-------------------
5. www.sportsandrec.com
--------------------
6. www.sportsauthority.com
-----------------------
38.
<PAGE>
ORGANIC
Schedule D
Organic Pre-Existing Software
Source Code contained in the files. Description
CacheKeyList.java The cache code is used to retrieve
CacheProxy.java data from a database and store it in
CacheConfig.java memory for the application server's
CacheLogger.java use. Data is stored in a hash table
CacheRegistry.java data structure. Any data needed by the
CacheException.java application server will first be
CacheManager.java requested from the cache and if it
CacheablelF.java isn't located there. it will be
CachelF.java retrieved from the database. This code
CacheMessage.java significantly increases overall.
LRL.Cache.java application performance.
CacheKeylF.java
CachePolicy.java
FileLoadedProperty.java Loads configuration properties from a
file that exists in class path.
EnumeratedType.java Java does not have a built in
enumerated type data F type. This
class emulates the behavior of an
enumerated type.
Cal endar.js The calendar is a DHTML object that
Dategenerator.js displays a calendar on an HTML page.
The calendar is a month by month
calendar that can be scrolled through
to go to other months. Specific days
can be selected and passed to other
functions on an HTML page.
SessionldWriter.java These two classes append the session
AppendSessionServlet.java identifier for a user's session to a
block of text.
CreditCardModl0Check.java This class performs a modula 10 check
on a number passed into it and returns
a success or failure
Logger.java These classes write error messages
LogMessage.java from exceptions that occur in code to
a flat file on the file system.
BadParameterFxception.java These classes perform basic
Validator.java authentication on data passed into
them. They will verify that data is
number. alphabetic. alphanumeric. non-
negative non-zero. an integer. or a
floating point number.
39.
<PAGE>
ORGANIC
<TABLE>
<CAPTION>
Schedule E
ORGANIC ONLINE updated: 12198
Standard Billing Rates
January 1999 Standard
Billing
1999 Rate
<S> <C> <C>
CREATIVE
Executive Creative Director, VP $ [*]
Creative Director $ [*]
Associate Creative Director Media $ [*]
Senior Art Director $ [*]
Creative Services Manager $ [*]
Senior Information Architect $ [*]
Information Architect $ [*]
Junior Information Architect $ [*]
Senior Designer $ [*]
Designer $ [*]
Junior Designer $ [*]
Creative Production Manager $ [*]
Senior Interactive Production Artist $ [*]
Interactive Production Artist $ [*]
Senior Editor $ [*]
Writer $ [*]
Copywriter Media $ [*]
CLIENT SERVICES
Client Partner $ [*]
PRODUCTION
Executive Producer $ [*]
Senior Producer $ [*]
Producer $ [*]
Associate Producer $ [*]
ENGINEERING
Vice President of Engineering $ [*]
Director of Engineering $ [*]
CONTENT ENGINEERING
Chief Content Engineer $ [*]
Senior Content Engineer $ [*]
Content Engineer $ [*]
Assistant Content Engineer [*]
SERVER ENGINEERING
Chief Server Engineer [*]
</TABLE>
40.
<PAGE>
ORGANIC
<TABLE>
<S> <C> <C>
Server Engineering Architect $ [*]
Senior Server Engineer $ [*]
Server Engineer $ [*]
Assistant Server Engineer $ [*]
Technical Writer $ [*]
PROJECT ENGINEERING
Chief Project Engineer $ [*]
Senior Project Engineer $ [*]
Project Engineer $ [*]
Assistant Project Engineer $ [*]
WEB OPERATIONS
Chief Hosting Engineer $ [*]
Senior Hosting Engineer $ [*]
Hosting Engineer $ [*]
Assistant Hosting Engineer $ [*]
Statistics Engineer $ [*]
Release Engineer $ [*]
Database Administrator $ [*]
QUALITY ASSURANCE
Quality Manager $ [*]
Quality Engineer $ [*]
Quality Coordinator $ [*]
Quality Tester $ [*]
Technical Proofreader $ [*]
- -----------------------------------------------------------
</TABLE>
41.
<PAGE>
EXHIBIT 10.3
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.
Amendment to Omnibus Services Agreement Between Organic, Inc.
and Global Sports Interactive, Inc.
Organic, Inc. ("ORGANIC") and Global Sports Interactive, Inc. ("CUSTOMER")
hereby mutually agree to amend the Omnibus Services Agreement ("OSA") dated
April 1, 1999, and all attached Statements of Work and Change Orders.
WHEREAS, ORGANIC and CUSTOMER have mutually agreed to cease work on both the GSI
Common Engine Development and the Retailer Front End Initiative effective
September 13, 1999. ORGANIC will deliver to CUSTOMER all work product "as is,"
in its current state of development, including all source code and object code
of Organic Pre-existing Software and Customer Software currently in development.
WHEREAS, CUSTOMER has informed ORGANIC of CUSTOMER's intent to build the GSI
Common Engine internally, and will therefore be taking the work product
developed by ORGANIC "as is" and making extensive modifications to the ORGANIC
work product in order to complete the GSI Common Engine Development.
Additionally, since completion of the Retailer Front End Initiative is
contingent upon the final specifications of the GSI Common Engine, CUSTOMER will
be making extensive modifications to the ORGANIC work product for the Retailer
Front End Initiative as well.
NOW, THEREFORE, ORGANIC and CUSTOMER hereby mutually agree to the following
modifications and amendments to the OSA and all attached Statements of Work and
Change Orders:
Warranties. The parties hereby agree that all GSI Common Engine Development and
Retailer Front End Initiative work product is being provided by ORGANIC to
CUSTOMER "as is" and without any performance warranties of any kind; and that
the warranty provision in Section 5.1 of the OSA is hereby revoked and not
applicable to any and all ORGANIC work product for the GSI Common Engine
Development and the Retailer Front End Initiative.
However, ORGANIC and CUSTOMER hereby mutually agree to add the following
Warranty of Title provision to the OSA, which warranty shall be the only
warranty of any kind, either express or implied, that is applicable to any and
all ORGANIC work product for the GSI Common Engine Development and Retailer
Front End Initiative.
Warranty of Title. ORGANIC hereby represents and warrants to CUSTOMER that the
Organic Pre-existing Software and Customer Software shall be original
developments of ORGANIC, that ORGANIC has the full legal right to grant to
CUSTOMER the ownership rights and licenses granted under this Agreement and to
provide all
<PAGE>
deliverables as required by this Agreement, that the Organic Pre-existing
Software and Customer Software and all deliverables as used by CUSTOMER,
unmodified, and in the form delivered to CUSTOMER by ORGANIC, do not infringe
upon any patent issued as of the Effective Date, trademark, copyright or any
trade secret or any other proprietary right of any person.
Payment. All invoices billed through August 31, 1999 shall remain valid and are
now immediately due. For the month of September 1999, CUSTOMER hereby agrees to
pay ORGANIC as follows:
(i) [*] representing 50% of the compensation for the GSI Common Engine
Development Team for services performed;
(ii) [*] representing payment for the Front End Initiative Team for
services performed; and
(iii) [*] representing unsigned change orders and payment for GSI Common
Engine Team resources that could not be re-assigned to other projects.
Services. ORGANIC hereby agrees to provide the following resources to perform
transition services to CUSTOMER beginning September 16, 1999 and continuing
through October 1, 1999:
(i) a Senior Producer;
(ii) 6 Content Engineers; and
(iii) 6 Interactive Production Artists.
The above resources will work no more than 100 hours each throughout the
duration stated above. If any of these resources are unavailable, the parties
hereby agree to a reduction in the fees stated above, which reduction shall be
based on the hourly rate for each resource according to the rate card. It is
also understood that CUSTOMER may prefer to have some or all of these resources
to be on site at CUSTOMER's facilities. Therefore, if CUSTOMER elects to have
any or all of these resources on site at CUSTOMER's facilities, CUSTOMER hereby
agrees to pay for any and all reasonable expenses associated with relocating
these resources to CUSTOMER's facilities, including, but not limited to, travel,
lodging, and meals.
Any and all other resources or services that are required beyond the end of
September, or that are in addition to those stated above, will be billed on a
time and materials basis upon prior written approval from CUSTOMER.
Termination. The parties hereby mutually agree to amend the termination
provision of the OSA by adding the following sentence to the end of Section 8.3:
Termination at Will. This Agreement may be terminated by mutual agreement
immediately, at any time, with the effective date of termination to be
mutually agreed upon by the parties in writing.
<PAGE>
NOW, THEREFORE, the parties hereby mutually agree to terminate the OSA dated
April 1, 1999, and all attached Statements of Work and Change Orders, as of the
Effective Date of September 13, 1999.
All other provisions of the OSA, Statements of Work, and Change Orders that do
not contradict the above terms of this Amendment shall remain in full force and
effect.
AGREED AND ACCEPTED
ORGANIC, INC. GLOBAL SPORTS INTERACTIVE, INC.
By: ______________________________ By: ________________________________
Title: ___________________________ Title: _____________________________
Date: ____________________________ Date: ______________________________
<PAGE>
EXHIBIT 10.7
EXECUTION COPY CONFIDENTIAL
YAHOO! INC.
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.
"Competitor" shall mean: (i) with respect to Yahoo, those entities
----------
identified in Section 10.6, and (ii) with respect to Global Sports, the Global
Sports Competitors.
"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 Athlete Sponsorship" shall mean an advertising promotion
---------------------------------
conducted in accordance with Yahoo's standard Athlete 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 Charter Shopping Sponsorship" shall mean a multi-faceted
------------------------------------------
promotion comprised of the following three elements, each of which will permit
users to [*] and none of which will [*]: (1) a [*] no larger than [*] pixels
wide by [*] pixels high, with a file size no more than [*] and a [*]; (2) a [*]
no larger than [*] pixels wide by [*] pixels high, with a file size no more than
[*], headline text of up to [*] characters (including spaces), body text of no
more than [*] characters (including spaces) that will [*]; and (3) a [*] no
larger than [*] pixels wide by [*] pixels high with a file size no more than
[*], a [*] and a [*] (e.g., either a [*]). 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 Charter Shopping Sponsorship advertising unit. Further, Global
Sports shall ensure that each of the Global Sports Charter Shopping Sponsorship
advertising units conform to the Yahoo Shopping Style Guide 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 Club 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
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permit users to navigate directly to a Page on the Global Sports Site dedicated
to Sports Merchandise.
"Global Sports Competitors" shall mean the list of entities set forth on
-------------------------
Exhibit K and any successors to such entities.
- ---------
"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 Charter Shopping Sponsorship October 15, 1999; and (ii)
for purposes of all other Global Sports Deliverables, 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 Fantasy 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 Fantasy 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 Front Page Promotion" shall mean a promotion that will include
----------------------------------
the Global Sports Front Page Promotion Banner and in all cases comply with
Yahoo's current front-page promotion guidelines set forth at: [*] (for
promotions hosted by Global Sports) or [*] (for promotions hosted by Yahoo).
"Global Sports Front Page Promotion Banner" shall mean a promotion
-----------------------------------------
substantially similar in form as that set forth on Exhibit B that complies with
---------
Yahoo's current front-page promotion banner specifications as detailed in the
applicable urls set forth in the definition of Global Sports Front Page
Promotion.
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"Global Sports Game Channel 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) a [*] that (i) is [*] pixels in width by [*] pixels in height, (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.
"Global Sports Get Local 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 Merchandising Unit" 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 Message Board 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.
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"Global Sports News 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 Outdoors Sponsorship" shall mean an advertising promotion
----------------------------------
offered in connection with Yahoo! Outdoors 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 Outdoors Sponsorship content.
"Global Sports Sports Event 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 [*] pixels in width by [*] 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 [*] adjacent to the [*] 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.
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"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 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 Charter
Shopping 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.
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"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.
"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, including the Global
---------------------------
Sports Competitors, 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.
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"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.
"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.
---------
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"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 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 Front Page 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 Front Page 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
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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 Charter Shopping Sponsorship and Related Opportunities.
--------------------------------------------------------------------
4.1 Yahoo shall provide the Global Sports Charter Shopping 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.
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 Fantasy Sports Module, Get Local Module, Club Module, Message
---------------------------------------------------------------------------
Board Module and News Module.
----------------------------
6.1 Yahoo will provide the Global Sports Fantasy 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 [*]
(collectively, the [*]).
6.2 Yahoo will provide the Global Sports Get Local Module, on a rotating
basis until its Page View obligations are met, in the East module
position throughout Pages in Yahoo Get Local.
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6.3 Yahoo will provide the Global Sports Club 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 Message Board 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 News Module, on a rotating basis
until its Page View obligations are met, within Yahoo News.
7. Global Sports Merchandising Unit and Global Sports Shopping Banner.
------------------------------------------------------------------
7.1 Yahoo will provide the Global Sports Merchandising Unit, 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 Game Channel Sponsorship, Sports Event Sponsorship,
-----------------------------------------------------------------
Outdoors Sponsorship and Athlete Sponsorship.
--------------------------------------------
8.1 Yahoo shall provide the Global Sports Game Channel Sponsorship
throughout the Term.
8.2 Yahoo shall provide the Global Sports Sports Event 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 Outdoors Sponsorship throughout
the Term.
8.4 During the Term, Yahoo will provide the Global Sports Athlete
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
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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
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
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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 Charter Shopping Sponsorship: The Athletes Foot,
Michigan Sporting Goods Distributors, Inc., Sport Chalet, and The
Sports Authority; and (ii) all of the 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.
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10.6 In no event shall any Page on the Global Sports Site or Global Sports
RMI Site to which users click-through from any Global Sports Link
contain graphic or textual hyperlinks, banner advertisements or
promotions of any of the following [*] and their successors; provided
that, the [*] retailing operations of [*] may be promoted as Global
Sports Retailers in accordance with the terms of this Agreement and
subject to the restrictions set forth in Exhibit F.
---------
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.
11. Limited Exclusivity
-------------------
11.1 During the Term, Yahoo shall not [*] for the benefit of any [*] on
any [*].
11.2 During the Term, Yahoo shall not [*] for the benefit of any [*] on
any Page within (i) [*], (ii) [*], (iii) [*], (iv) the [*], or (v)
any [*]. In addition, Yahoo will include Global Sports in Yahoo
Points.
11.3 During the Term, Yahoo shall not [*] for the benefit of [*] in the
[*]. In addition, Yahoo agrees that [*] for [*] will appear on behalf
of [*] on the [*]; provided that Global Sports acknowledges that [*],
including without limitation, [*].
11.4 Global Sports acknowledges that Yahoo has existing contractual
obligations with the merchants set forth on Exhibit H ("Existing
---------
Obligations") and that notwithstanding anything to the contrary in
this Agreement, Yahoo shall be permitted to fulfill the Existing
Obligations without being considered to be in breach of its
obligations under this Agreement. Further, under no circumstances
shall anything in this Section 11 be deemed to restrict in any manner
Yahoo's ability to (i) integrate any editorial content (other than
branded content that may be provided by Global Sports Competitors) in
any Yahoo Property, or (ii) include links to any entity in any
directory, merchant listing or other shopping service or feature on
any Yahoo Property. To the extent that it is not contractually
obligated to do so, Yahoo agrees that it will not, in a manner
inconsistent with Yahoo's
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obligations under Section 11, (x) extend or renew an Existing
Obligation, or (y) consent to the extension or renewal of an Existing
Obligation if Yahoo may withhold such consent in its sole discretion.
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 Charter Shopping Sponsorship, Global
Sports Outdoors Sponsorship, Global Sports Athlete Sponsorship,
Global Sports Game Channel 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:
. [*] Page Views of the Global Sports Club Module, Global Sports
Message Board Promotion, and/or Global Sports Get Local Module;
provided that, Yahoo agrees to use commercially reasonable efforts
to deliver the Page Views as follows: [*] Page Views of the Global
Sports Club Module, [*] Page Views of the Global Sports Message
Board Promotion, and [*] Page Views of the Global Sports Get Local
Module;
. [*] 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;
. [*] Page Views of the Global Sports Merchandising Unit and/or
Global Sports Sports Event Sponsorship; provided that, Yahoo
agrees to use commercially reasonable efforts to deliver the Page
Views as follows: [*] Page Views of the Global Sports
Merchandising Unit, and [*] Page Views of the Global Sports Sports
Event Sponsorship;
. [*] Page Views of the Global Sports Fantasy Sports Module;
. [*] Page Views of the Global Sports Front Page Promotion Banner;
. [*] Page Views of the Global Sports Category Text Link;
. [*] Page Views of the Global Sports News Module and/or Global
Sports News Banner provided that, Yahoo agrees to use commercially
reasonable efforts to deliver the Page Views as follows: [*] Page
Views of the Global Sports News Module and [*] Page Views of the
Global Sports News Banner; and
. [*] 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: [*]
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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.
For clarity, the parties acknowledge that the exclusivity provisions
of Section 11 shall not extend beyond the Term and that the sole
remedy set forth above shall not apply to a failure by Yahoo to
fulfill its Page View obligations during the Make Good Period.
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.
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
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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 Limited Exclusivity 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 [*] 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 includes: (i) the total
dollar amount of Global Sports Revenue earned during the applicable
period, and (ii) a calculation of the Revenue Share Fee.
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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 five million dollars ($5,000,000) 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
$2,166,666 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.
14. Termination.
-----------
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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 [*] after the Launch Date (i.e.,
Global Sports shall have no right to give a termination notice
pursuant to this Section 14.4 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
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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 Charter Shopping
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) the exclusivity set
forth in Section 11 shall terminate notwithstanding any Global
Sports Retailer's continued participation in Yahoo's Remote
Merchant Integration Program; and (ii) any payments due to Yahoo
under Sections 13.3 or 13.4 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 a description of the reasons for its
conclusion and references to the sources of
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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. The parties will use good-
faith efforts to negotiate and execute a written amendment to this
Agreement to include such opportunity under reasonable terms and
conditions. If Global Sports declines to commence negotiations with
Yahoo regarding an opportunity described in a Presentment Notice
within [*] following its receipt thereof, or if the parties fail to
reach agreement within [*] following the commencement of good faith
negotiations (or such later date as is agreed by the parties), Yahoo
may offer the opportunity to any third party (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 Agreement
or any of its terms must be disclosed under any law, rule or
regulation
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(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, or if Yahoo requests at the specific direction of any user,
that Global Sports
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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,
----------------
defend 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 costs and expenses, including, but not
limited
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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, defend 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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EXHIBIT A
(Global Sports Banner and Button Category Pages and
Global Sports Banner, Button and Shopping Keywords)
Global Sports Banner and Button Category Pages:
- -----------------------------------------------
[*]
Global Sports Banner, Button and Shopping Keywords:
- ---------------------------------------------------
[*]
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EXHIBIT B
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EXHIBIT C
Wire Transfer Instructions
Yahoo's Bank Information:
Institution Name: [*]
Institution Address: [*]
ABA: [*]
Beneficiary Name: [*]
Beneficiary Account Number: [*]
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EXHIBIT D
Mutual Nondisclosure Agreement Terms
1. "Confidential Information" as used in this Agreement shall mean any and
all technical and non-technical information, including patent, trade secret, and
proprietary information, techniques, sketches, drawings, models, inventions,
know-how, processes, apparatus, equipment, algorithms, software programs,
software source documents, and formulae related to the current, future and
proposed products and services of each of the parties, and includes, without
limitation, their respective information concerning product and feature plans,
research, experimental work, development, design details and specifications,
engineering, financial information, procurement requirements, purchasing,
manufacturing, customer lists, business forecasts, sales and merchandising, and
marketing plans and information.
2. If the Confidential Information is disclosed orally or visually, it
shall be identified as such at the time of disclosure and confirmed in a writing
to the recipient within thirty (30) days of such disclosure.
3. Each of the parties agrees that it will not make use of, disseminate, or
in any way disclose any Confidential Information of the other party to any
person, firm or business, except to the extent necessary for negotiations,
discussions, and consultations with personnel or authorized representatives of
the other party and any purpose the other party may hereafter authorize in
writing. Each of the parties agrees that it shall disclose Confidential
Information of the other party only to those of its employees and contractors
who need to know such information and who have previously agreed, either as a
condition to employment or in order to obtain the Confidential Information, to
be bound by terms and conditions substantially similar to those of this
Agreement.
4. There shall be no liability for disclosure or use of Confidential
Information which is: (a) in the public domain through no fault of the receiving
party, (b) rightfully received from a third party without any obligation of
confidentiality, (c) rightfully known to the receiving party without any
limitation on use or disclosure prior to its receipt from the disclosing party,
(d) independently developed by the receiving party, (e) generally made available
to third parties without any restriction on disclosure, or (f) communicated in
response to a valid order by a court or other governmental body, as otherwise
required by law, or as necessary to establish the rights of either party under
this Agreement (provided that the party so disclosing has provided the other
party with a reasonable opportunity to seek protective legal treatment for such
Confidential Information).
5. "Residual Information" shall mean any Confidential Information of the
disclosing party which may be retained in intangible form in the minds of those
individuals of the receiving party who have had proper access to such
Confidential Information and who did not intentionally memorize such information
in order to circumvent these confidentiality terms and conditions.
Notwithstanding anything else in this Agreement, the receiving party shall be
free to use any Residual Information for any
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purpose whatsoever, including, without limitation, the development of its own
products, or business, provided that such Residual Information is not used in
connection with products that are directly competitive to those of the
disclosing party.
6. Each of the parties agrees that it shall treat all Confidential
Information of the other party with the same degree of care as it accords to its
own Confidential Information, and each of the parties represents that it
exercises reasonable care to protect its own Confidential Information.
7. Each of the parties agrees that it will not modify, reverse engineer,
decompile, create other works from, or disassemble any software programs
contained in the Confidential Information of the other party unless specifically
permitted to do so, in writing, by the disclosing party.
8. All materials (including, without limitation, documents, drawings,
models, apparatus, sketches, designs and lists) furnished to one party by the
other, and which are designated in writing to be the property of such party,
shall remain the property of such party and shall be returned to it promptly at
its request, together with any copies thereof.
9. This Exhibit D shall govern all communications between the parties that
are made during the Term of this Agreement, provided, however, that each party's
obligations under Sections 2 and 3 with respect to Confidential Information of
the other party which it has previously received shall continue unless and until
such Confidential Information falls within Sections 4 or 5. Neither party shall
communicate any information to the other in violation of the proprietary rights
of any third party. Neither party acquires any licenses under any intellectual
property rights of the other party under this Agreement.
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EXHIBIT E
Sports Events
[*] approximate dates only pending schedule to be determined by the league
[*] (Dates are not yet known but should run most of the month of [*])
[*] (day after [*] games thru [*])
[*] dates pending schedule to be determined by the league
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EXHIBIT F
Global Sports Retailers
Current Global Sports Retailers
- -------------------------------
The Athletes Foot
Dunhams
Michigan Sporting Goods Distributors, Inc. (also known as "MC Sports")
Sport Chalet
JumboSports, Inc. (also known as "Sports and Recreation" or "Sports and Rec")
The Sports Authority
Pre-Approved (not currently a Global Sports Retailer, but approved by Yahoo)
- ----------------------------------------------------------------------------
[*]
Pre-Approved with restrictions:
- -------------------------------
The following [*] entities shall be pre-approved as Global Sports Retailers only
with respect to such entities' [*] and not with respect to any other operations
or services (e.g., news or other content) and provided that in any event such
entities may only be promoted through [*] (and not within [*]).
[*]
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EXHIBIT G
YAHOO! REMOTE MERCHANT INTEGRATION (RMI)
STANDARD TERMS AND CONDITIONS
YAHOO! REMOTE MERCHANT INTEGRATION (RMI) AGREEMENT
THIS RMI AGREEMENT (the "Agreement") is made as of this third day of October,
1999 (the "Effective Date") between YAHOO! INC. ("Yahoo!"), a Delaware
corporation, and Global Sports Interactive, Inc. ("Merchant"), a Pennsylvania
corporation. This Agreement is being entered into in conjunction with the
Advertising and Promotion Agreement between Yahoo! and Merchant of even date
herewith (the "Advertising and Promotion Agreement"). In consideration of the
mutual promises contained herein, the parties agree as follows:
1. Merchant Product Information. Merchant will provide to Yahoo!, or will
permit Yahoo! to download, information relating to Merchant products in
accordance with Yahoo!'s technical and formatting specifications, which will
be substantially similar to those specifications attached hereto as Exhibit
1. Such information will include without limitation a Merchant identifier,
product name, product description, product price, URL for the web page on
the Merchant Site (as defined below) that contains the product, URL for the
web page on the Merchant Site that contains the product image and, if
applicable any warranty notices or disclaimers, product availability, return
information, sizes, colors, SKU numbers, html pages and graphic files,
including but not limited to graphical brand features (collectively referred
to as "Merchant Product Information"). Merchant agrees to update all
Merchant Product Information in accordance with the aforementioned technical
and formatting specifications no less frequently than [*] per [*]. Yahoo!
will host Merchant Product Information on Yahoo! servers and include
Merchant Product Information in Yahoo!'s U.S. based on-line shopping
property (referred to as "Yahoo! Shopping" or the "Service"). Yahoo! is
solely responsible for the design, layout, posting and maintenance of Yahoo!
Shopping.
2. Merchant Pages. Merchant will permit Yahoo! to download and display, via a
"Proxy Server" or other means, web pages from the web site operated by or on
behalf of Merchant (the "Merchant Site"). Such pages, any portions thereof
and any content therein, as modified and displayed by Yahoo!, are referred
to as "Merchant Pages."
3. Responsibilities and Rights with Respect to Merchant Product Information and
Merchant Pages. In the event that Yahoo! becomes aware of a potential
conflict between any Merchant Product Information or Merchant Pages and any
law or advertising guidelines of Yahoo! (currently available at
http://docs.yahoo.com/docs/advertising/ and subject to change from time to
time), Yahoo! will notify Merchant and may request that Merchant remove,
revise or replace such Merchant Product Information or Merchant Pages. If
the parties cannot resolve the matter within [*] of Yahoo!'s notice to
Merchant, Yahoo! reserves the right to remove or disable such Merchant
Product Information or Merchant Pages, but only to the extent reasonably
necessary to resolve the potential conflict. The foregoing only applies to
Merchant Product Information and Merchant Pages and does not affect
operation of or any material on the Merchant Site.
4. Customer Order Information.
(a) Order Placement and Fulfillment. Users of Yahoo! Shopping may search
for and navigate to Merchant Product Information and Merchant Pages via
Yahoo! Shopping pages designed and hosted by Yahoo!. Users of Yahoo!
Shopping will select items to be purchased from Merchant by using the
Yahoo! Shopping Cart. Check-out for orders will be conducted on
Merchant Pages (the "Check-out Pages"). Information relating to the
purchase of Merchant products via the Service, including product name,
product quantity, amount paid, user's proper name, shipping address,
billing address, email address and credit card information
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("Customer Order Information") will be transmitted to Merchant.
Merchant will notify each user via email within twenty-four (24) hours
after Merchant receives the Customer Order Information whether the
order can or cannot be fulfilled. Merchant will be solely responsible
for all products offered by Merchant on Yahoo! Shopping, including
without limitation billing, shipping and fulfillment of goods, returns
and customer service and for any acts or omissions by Merchant that
occur in connection with such product offerings.
(b) Privacy and Consumer Protection. Merchant agrees to implement adequate
security protections to ensure the privacy of Customer Order
Information. Merchant further agrees (i) to become a licensee of TRUSTe
within [*] of the Effective Date of this Agreement; and (ii) to provide
a hypertext link on all Check-out Pages to Merchant's privacy policy.
If a user initiates a transaction but does not complete said
transaction, Merchant agrees to destroy all personally identifiable
Customer Order Information and agrees that it has no rights to such
personally identifiable Customer Order Information. If a user requests,
or if Yahoo! conveys such request to Merchant at the specific direction
of the user, that Merchant remove personal information relating to any
user from Merchant's database and other records, Merchant agrees to
remove such information promptly from its database or other records.
5. Information Maintained by Yahoo! and Relevant to the Transaction. In the
event that a registered Yahoo! user places an order for a Merchant product
via the Service, Yahoo! already may maintain information about the user in
Yahoo!'s proprietary databases that is relevant to the transaction,
including but not limited to that user's proper name, shipping address,
billing address, email address and credit card information. Merchant
acknowledges that Yahoo! may give registered Yahoo! users the option to have
certain input fields on Check-out Pages that request Customer Order
Information "populated" with applicable information about that registered
Yahoo! user from Yahoo!'s proprietary databases. For clarity, the parties
understand that such "population" by Yahoo! will not affect Merchant's
ownership of Customer Order Information, as set forth in Section 7(c), and
will not transfer, impair or otherwise limit Yahoo!'s rights in the
"populated" information.
6. Registration of Unregistered Yahoo! Users who Purchase from Merchant via the
Service. Merchant agrees that users who are not registered with Yahoo! may
be given the opportunity to register with Yahoo! before completing a
discrete transaction with Merchant via the Service.
7. Merchant Licenses to Yahoo!.
(a) Merchant Product Information. Merchant hereby grants to Yahoo! a
worldwide, non-exclusive, non-transferable license to use, display,
modify, make derivative works from, reproduce and distribute Merchant
Product Information and any portions thereof and any derivative works
therefrom during the Term (as defined below) in connection with the
Service on any Yahoo! branded or co-branded property, including without
limitation the right to incorporate Merchant Product Information into a
database and the right to display in any manner the results of search
queries and comparisons conducted by users of the Service. Yahoo! may
modify and create derivative works from Merchant Product Information
only to the extent reasonably necessary to fit the format of the
Service or to provide features of the Service; provided, however, that
no modification or derivative work will adversely affect the accuracy
of the underlying Merchant Production Information. Merchant also grants
to Yahoo! (i) the right to maintain such Merchant Product Information
on Yahoo! servers during the Term; (ii) the right to authorize the
downloading and printing of Merchant Product Information, or any
portion thereof, by users; and (iii) the right to use Merchant Product
Information for purposes of promoting Merchant products, Yahoo!
Shopping or Yahoo! generally.
(b) Merchant Pages. Merchant grants to Yahoo! a worldwide, non-exclusive,
non-transferable license to use, display, modify, make derivative works
from, reproduce and distribute Merchant Pages during the Term for
purposes of responding to particular queries by users of
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the Service. Yahoo! may modify and create derivative works from
Merchant Pages only to the extent reasonably necessary to fit the
format of the Service or to provide features of the Service; provided,
however, that no modification or derivative work will adversely affect
the accuracy of the underlying content on Merchant Pages. Merchant also
grants to Yahoo! (i) the right to redirect certain hypertext links on
Merchant Pages to pages of the Yahoo! Shopping Cart or, with prior
approval of Merchant, to other pages in the Service and (ii) the right
to designate and display a Yahoo! URL for all Merchant Pages.
(c) Customer Order Information. Merchant owns Customer Order Information
and grants to Yahoo! a perpetual, worldwide, sublicensable, non-
exclusive license to use Customer Order Information in aggregate form,
such that Customer Order Information is not individually identifiable
to Merchant, for research, marketing or other promotional purposes.
(d) Incidental Sublicense Rights. Yahoo! will be entitled to sublicense the
rights set forth in Sections 7(a) and 7(b) to its Affiliates.
"Affiliates" means any company or other entity in which Yahoo! owns at
least a [*] ownership, equity or financial interest (excluding the [*],
as defined in Section 1 of the attached Advertising and Promotion
Agreement between Yahoo! and Global Sports Interactive).
8. Yahoo! Licenses to Merchant. Yahoo! may provide Merchant with access to
certain software owned by Yahoo! (the "Software") in order to, among other
things, facilitate the transmission of Customer Order Information to
Merchant. In the event that Yahoo! provides Merchant with access to
Software, the terms that govern such access to, and use of, said Software
will be mutually agreed upon by the parties.
9. Confidentiality. Each party acknowledges that Confidential Information may
be disclosed to the other party during the Term of this Agreement.
"Confidential Information" means any confidential, proprietary or trade
secret information relating to this Agreement or disclosed by one party to
the other party during the Term of this Agreement, including but not limited
to material terms of this Agreement, information about users (e.g. Customer
Order Information), guidelines and specifications, technical processes and
formulae, source codes, product designs, sales, cost and other unpublished
financial information, product and business plans, projections and marketing
data that is not (a) generally known to the public; (b) disclosed in public
materials or otherwise in the public domain through no fault of the
receiving party; (c) lawfully known to or independently developed by the
receiving party prior to disclosure by the disclosing party; (d) lawfully
obtained from a third party; or (e) required or reasonably advised to be
disclosed by law. Except as otherwise expressly provided in this Agreement,
each party agrees that (i) it will treat all Confidential Information of the
other party with the same degree of care as it accords to its own
Confidential Information and (ii) it will disclose Confidential Information
of the other party only to those of its agents or employees who need to know
such Confidential Information and who have agreed previously, either as a
condition of employment or in order to obtain the Confidential Information,
to be bound by terms substantially similar to those of this Section 9, or to
comply with the law or legal process.
10. Payments to Yahoo!. Merchant will pay to Yahoo! a non-refundable, non-
creditable fee equal to [*] of any Global Sports Revenue (as defined in the
Advertising and Promotion Agreement) earned by Merchant during the Term of
this Agreement (the "Revenue Share Fee"). (It is understood and agreed that
the Revenue Share Fee described in this Agreement is the same as, and is not
in addition to, the Revenue Share Fee described in the Advertising and
Promotion Agreement.) Merchant will pay such Revenue Share Fee [*] within
[*] days after the last day of each [*] of the Term and will accompany each
payment with a written report that includes (a) the total dollar amount of
Global Sports Revenue earned during the applicable period and (b) the
calculation of Revenue Share Fee due to Yahoo!. Merchant will maintain
complete and accurate records in accordance with generally accepted methods
of accounting for all activities relating to the Revenue Share Fee. Merchant
will permit a reputable independent certified public accounting
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firm designated by Yahoo! and reasonably acceptable to Merchant 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 will not be required more often than once every [*] period of the
Term; provided, however, that Yahoo! may audit Merchant within [*] of any
audit in which a discrepancy of [*] or greater is discovered. If such a
discrepancy is discovered, Merchant will 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 10; provided, however,
that Merchant will pay such audit's costs if a discrepancy of [*] or greater
is discovered through any such audit. At Merchant's request, Yahoo! will
require the accounting firm to sign a standard confidentiality agreement
acceptable in form and substance to Merchant, and the results of any such
audit will be considered Confidential Information of both parties, subject
to Section 9. Any portion of Revenue Share Fee that has not been paid to
Yahoo! within the time frame set forth above will 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 Merchant to pay to
Yahoo! any Revenue Share Fee within the time frame set forth herein will
constitute a material breach of this Agreement.
11. Term and Termination. This Agreement will become effective as of the
Effective Date and will, unless sooner terminated as provided herein or as
otherwise agreed, remain effective [*] until terminated by either party with
no less than [*] written notice (the "Term"). No amendment to any provision
of this Agreement will be effective unless in writing and signed by both
parties. Upon termination, Yahoo! reserves the right to delete from its
servers any and all information related to Merchant, including but not
limited to Merchant Product Information. The last sentence of Section 4(b)
and the last sentence of this Section 11, as well as Sections 7(c), 9, 10
and 13 through 15, will survive termination or expiration of this Agreement.
12. Representations and Warranties.
(a) By Merchant. Merchant represents and warrants that it (i) has full
power and authority under all relevant laws and regulations to offer,
sell and distribute the products offered by it, including but not
limited to holding all necessary licenses from all necessary
jurisdictions to engage in the advertising and sale of such products,
and (ii) will not engage in any activities in connection with this
Agreement: (A) that constitute or encourage a violation of any
applicable law or regulation, including but not limited to the sale of
illegal goods or the violation of export control or obscenity laws; (B)
that infringe the rights of any third party, including but not limited
to the intellectual property, business, contractual or fiduciary rights
of others; and (C) that are in any way connected with the transmission
of the unsolicited distribution of email or with any unethical
marketing practices.
(b) By Yahoo!. Yahoo! represents and warrants that it (i) has full power
and authority under all relevant laws and regulations to offer and
provide the Service and (ii) will not engage in any activities in
connection with this Agreement that are in any way connected with the
transmission of the unsolicited distribution of email or with any
unethical marketing practices.
13. Indemnity.
(a) By Merchant. Merchant, at its own expense, will indemnify, defend 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 and
damages incurred by or awarded against Yahoo!) based on, or arising
from, a claim that any trademarks, service marks, logos or other
distinctive Merchant brand features, any material, product or service
produced, distributed, offered or provided by Merchant, or any material
presented on the Merchant Site, or any site that is linked from the
Merchant Site, (i) infringes in any manner any copyright, patent,
trademark, trade secret or any other intellectual property right of any
third party; (ii) is or contains any material or information that is
obscene, defamatory, libelous, slanderous or that violates any law or
regulation; (iii) is subject to any fees, royalties, licenses or any
other payments to any parties; (iv) violates any rights of any
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person or entity, including without limitation the rights of
publicity, privacy or personality; (v) breaches any obligation of
Merchant under this Agreement; or (vi) 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: (A) Yahoo! provides Merchant with prompt notice of any such
claim; (B) Yahoo! permits Merchant to assume and control the defense
of such action upon Merchant's written notice to Yahoo! of its
intention to indemnify; and (C) upon Merchant's written request, and
at no expense to Yahoo!, Yahoo! will provide to Merchant all available
information and assistance necessary for Merchant to defend such
claim. Merchant 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. Merchant
will pay any and all 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 Merchant
elects not to assume and control the defense of such claim, suit or
proceeding at its own expense; if Merchant 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 Merchants' control of
such defense.
(b) By Yahoo!. Yahoo!, at its own expense, will indemnify, defend and hold
harmless Merchant and its employees, representatives, agents and
affiliates against any claim, suit, action or other proceeding brought
by a third party against Merchant or any Global Sports Retailer (as
defined in the Advertising and Promotion Agreement) (and any resulting
liability and damages incurred by or awarded against Merchant or any
Global Sports Retailer) based on, or arising from, a claim that any
trademarks, service marks, logos or other distinctive Yahoo! brand
feature (i) infringes in any manner any copyright, patent, trademark,
trade secret or any other intellectual property right of any third
party; (ii) is or contains any material or information that is
obscene, defamatory, libelous, slanderous or that violates any law or
regulation; (iii) is subject to any fees, royalties, licenses or any
other payments to any parties; (iv) violates any rights of any person
or entity, including without limitation the rights of publicity,
privacy or personality; (v) breaches any obligation of Yahoo! under
this Agreement; or (vi) 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: (A)
Merchant provides Yahoo! with prompt notice of any such claim; (B)
Merchant permits Yahoo! to assume and control the defense of such
action upon Yahoo!'s written notice to Merchant of its intention to
indemnify; and (C) upon Yahoo!'s written request, and at no expense to
Merchant, Merchant 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 Merchant,
without Merchant's prior written consent. Yahoo! will pay any and all
costs and expenses, including, but not limited to, reasonable
attorneys' fees, incurred by Merchant 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, Merchant 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.
14. DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY AND DAMAGES. THE
SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT
WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. NEITHER THIS AGREEMENT NOR ANY DOCUMENTATION FURNISHED UNDER IT IS
INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT THE SERVICES WILL BE
UNINTERRUPTED, TIMELY OR ERROR-FREE.
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EXCEPT WITH RESPECT TO EACH PARTY'S OBLIGATIONS UNDER SECTION 13, UNDER NO
CIRCUMSTANCES WILL MERCHANT 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 POSSIBILITY
OF SUCH DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR
ANTICIPATED PROFITS OR LOST BUSINESS.
15. Miscellaneous. Any and all press releases and other public announcements
relating to this Agreement and/or the underlying transactions between
Yahoo! and Merchant, including the method and timing of such announcements,
must be approved in advance by the parties in writing. Each party reserves
the right to withhold approval of any public announcement in its reasonable
discretion. Any notices or communications will be by electronic mail or in
writing and will be deemed delivered upon receipt to the party to whom such
communication is directed. If to Yahoo!, such notices will be addressed to
3420 Central Expressway, Santa Clara, CA 95051. If to Merchant, such
notices will be addressed to the electronic or mailing address specified on
the signature page of this Agreement. The section headings in this
Agreement are for convenience only and may not be relied upon to construe
or otherwise interpret this Agreement. This Agreement constitutes the
final, complete and exclusive statement of the agreement between the
parties with respect to its subject matter and supersede all previous
proposals. This Agreement and the relationship between Merchant and Yahoo!
will be governed by the laws of the state of California without regard to
its conflict of law provisions. In the event that a lawsuit is initiated by
Merchant against Yahoo!, all actions arising out of or relating to this
Agreement will be heard and determined exclusively by the Superior Court of
the State of California for the County of Santa Clara or the United States
District Court for the Northern District of California. In the event that a
lawsuit is initiated by Yahoo! against Merchant, all actions arising out of
or relating to this Agreement will be heard and determined exclusively by a
court of competent jurisdiction in the state of Pennsylvania. If any
provision of this Agreement is found invalid or unenforceable, that
provision will be enforced to the maximum extent permissible, and the other
provisions of this Agreement will remain in full force. Neither party's
failure to exercise or enforce any right or provision of this Agreement
will constitute a waiver of such right or provision. Both parties agree
that, regardless of any statute or law to the contrary, any claim or cause
of action arising out of or related to use of the Service or this Agreement
must be filed within one (1) year after such claim or cause of action
arose, or be forever barred.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the date first written above.
YAHOO! INC.
By: By:
---------------------- ----------------------
Title: Title:
------------------- -------------------
Address: Address:
----------------- -----------------
----------------- -----------------
Telecopy: Telecopy:
---------------- ----------------
E-mail: E-mail:
------------------ ------------------
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EXHIBIT 1
TECHNICAL AND FORMATTING SPECIFICATIONS
================================================================================
Technical Requirements (for informational purposes only):
================================================================================
This is a draft of the basic technical support required from a merchant in order
to incorporate its shopping site into the Yahoo! RMI program.
First, the Yahoo! production and engineering team needs a technical contact for
possible inquiries about any technical issues that may come up during the
process of integrating the merchant site into Yahoo! Shopping.
Second, the Yahoo! team needs to have a test account or similar mechanism that
can be used either at the merchant's production site or test server(s). This
account needs to contain the necessary information such as registered name,
password, credit card number, etc. so that the Yahoo! team can use it to fully
test the integrated workflow, from simple search/browse to product checkout,
without actually incurring any real expenses.
Third, in order to incorporate the merchant products into the Yahoo! Shopping
search and browse tree, the merchant needs to provide a product feed to Yahoo!.
The feed should be a flat file where each line represents a product item,
containing fields separated by tab (can be other symbols not used in the
fields). The required fields in the feed include the following: unique-id,
product-url, product-name, product-description, price, product-image-url.
There are some optional fields the merchant may supply to help improve search
results and enhance the chance of its products being quickly incorporated into
the Yahoo! Shopping browse tree: [*] (the merchant can fill in the values such
as [*].
Operationally, the preferred mode is the merchant putting the feed file on some
server where it can be downloaded. However, it is possible for the Yahoo! team
to set up an FTP account for the merchant to upload the feed file as well.
Fourth, the Yahoo! team prefers to have access to test server(s) to conduct a
stress test with a large amount of generated testing traffic. This is needed to
measure several key performance metrics to help Yahoo! support the merchant site
under heavy load. Using testing servers helps to avoid or minimize possible
disruption at the merchant's production site.
Finally, if the merchant site employs a certain load balancing package, it must
be configured in such a way that traffic from the Yahoo! RMI program, which is
typically originated from one single server, are handled either by multiple
servers, or a high capacity server that can sustain heavy traffic with good
performance.
================================================================================
Datafeed Spec:
================================================================================
Below you will find the format for the data feed that we need in order for your
products to show up in our Search and Browse. The yahoo-category-path is
optional and exact structure of this field is defined below. Including this
field can help improve search results, especially searches not confined to a
specific category.
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If you omit this field, we do still need the separator (tab) there so that we
can bypass it as an empty field. Operationally, we would prefer that you set up
a server from which we can download the file, instead of you sending the file to
our server.
Data Feed Format:
A [*] where each [*] represents a [*], containing [*] separated by [*] (can be
[*]
[*]
[*] definition:
This field should [*]. You can view our [*] at [*]. The field should be
formatted exactly as on this website, so that you can copy and paste directly
from this site.
i.e. [*]
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EXHIBIT H
Pre-Existing Yahoo Merchants
ADVERTISER END DATE
---------- --------
(not taking into account
any renewals)
[*]
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EXHIBIT I
Global Sports Athlete Sponsorship Specifications
(attached)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------
Page Location Type Time Size
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Yahoo! Sports Front Page East column Text link Text link below chat announcement up [*]
to [*] prior to actual chat event
- --------------------------------------------------------------------------------------------------------
League Pages (MLB, NFL, East column Text link Text link below chat announcement up [*]
NBA, Tennis, Etc.) to [*] prior to actual chat event
- --------------------------------------------------------------------------------------------------------
Event Listings/Athlete West Module Sponsor's ad will appear with [*]
Directory announcement of the upcoming chat.
Duration will be [*]
- --------------------------------------------------------------------------------------------------------
Player's Index North Banner For term within the sponsored [*]
athlete's index Standard
- --------------------------------------------------------------------------------------------------------
Player's Index NorthNorth Masthead For term within the sponsored [*]
athlete's index
- --------------------------------------------------------------------------------------------------------
Official Club North Text link For term within the sponsored [*]
athlete's club
- --------------------------------------------------------------------------------------------------------
Journal North Banner For term within the sponsored [*]
athlete's index
- --------------------------------------------------------------------------------------------------------
Journal NorthNorth Masthead For term within the sponsored [*]
athlete's index same as above
- --------------------------------------------------------------------------------------------------------
Transcripts (archive) North Banner For term within the sponsored [*]
athlete's index
- --------------------------------------------------------------------------------------------------------
Transcripts (archive) NorthNorth Masthead For term within the sponsored [*]
athlete's index same as above
- --------------------------------------------------------------------------------------------------------
Chat (textlinks) Central Text link [*] prior to chat event [*]
- --------------------------------------------------------------------------------------------------------
Chat (Live Chat) North Banner Duration of chat event [*]
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
</TABLE>
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EXHIBIT J
FTC DECISION AND ORDER
9823015
B251544
UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
COMMISSIONERS:
Robert Pitofsky, Chairman
Sheila F. Anthony
Mozelle W. Thompson
Orson Swindle
In the Matter of
GEOCITIES, a corporation.
DOCKET NO. C-3850
DECISION AND ORDER
The Federal Trade Commission having initiated an investigation of certain acts
and practices of the respondent named in the caption hereof, and the respondent
having been furnished thereafter with a copy of a draft of complaint which the
Bureau of Consumer Protection proposed to present to the Commission for its
consideration and which, if issued by the Commission, would charge respondent
with violation of the Federal Trade Commission Act; and
The respondent, its attorneys, and counsel for Federal Trade Commission having
thereafter executed an agreement containing a consent order, an admission by the
respondent of all the jurisdictional facts set forth in the aforesaid draft of
complaint, a statement that the signing of said agreement is for settlement
purposes only and does not constitute an admission by respondent that the law
has been violated as alleged in such complaint, or that the facts as alleged in
such complaint, other than jurisdictional facts, are true and waivers and other
provisions as required by the Commission's Rules; and
The Commission having considered the matter and having determined that it had
reason to believe that the respondent has violated the said Act, and that
complaint should issue stating its charges in that respect, and having thereupon
accepted the executed consent agreement and placed such agreement on the public
record for a period of sixty (60) days, and having duly considered the comments
filed thereafter by interested persons pursuant to (S) 2.34 of its Rules, now in
further conformity with the procedure prescribed in (S) 2.34 of its Rules, the
Commission hereby issues its complaint, makes the following jurisdictional
findings and enters the following order:
1. Respondent GeoCities, is a corporation organized, existing, and doing
business under and by virtue of the laws of the State of California, with its
office or principal place of business located at 1918 Main Street, Suite 300,
Santa Monica, California 90405.
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2. The Federal Trade Commission has jurisdiction of the subject matter of this
proceeding and of the respondent, and the proceeding is in the proceeding is
in the public interest.
ORDER
DEFINITIONS
For purposes of this order, the following definitions shall apply:
1. "Child" or "children" shall mean a person of age twelve (12) or under.
2. "Parents" or "parental" shall mean a legal guardian, including, but not
limited to, a biological or adoptive parent.
3. "Personal identifying information" shall include, but is not limited to,
first and last name, home or other physical address (e.g., school), e-mail
address, telephone number, or any information that identifies a specific
individual, or any information which when tied to the above becomes
identifiable to a specific individual.
4. "Disclosure" or "disclosed to third party(ies)" shall mean (a) the release
of information in personally identifiable form to any other individual, firm,
or organization for any purpose or (b) making publicly available such
information by any means including, but not limited to, public posting on or
through home pages, pen pal services, e-mail services, message boards, or chat
rooms.
5. "Clear(ly) and prominent(ly)" shall mean in a type size and location that
are not obscured by any distracting elements and are sufficiently noticeable
for an ordinary consumer to read and comprehend, and in a typeface that
contrasts with the background against which it appears.
6. "Archived" database shall mean respondent's off-site "back-up" computer
tapes containing member profile information and GeoCities Web site
information.
7. "Electronically verifiable signature" shall mean a digital signature or
other electronic means that ensures a valid consent by requiring: (1)
authentication (guarantee that the message has come from the person who claims
to have sent it); (2) integrity (proof that the message contents have not been
altered, deliberately or accidentally, during transmission); and (3) non-
repudiation (certainty that the sender of the message cannot later deny
sending it).
8. "Express parental consent" shall mean a parent's affirmative agreement that
is obtained by any of the following means: (1) a signed statement transmitted
by postal mail or facsimile; (2) authorizing a charge to a credit card via a
secure server; (3) e-mail accompanied by an electronically verifiable
signature; (4) a procedure that is specifically authorized by statute,
regulation, or guideline issued by the Commission; or (5) such other procedure
that ensures verified parental consent and ensures the identity of the parent,
such as the use of a reliable certifying authority.
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9. Unless otherwise specified, "respondent" shall mean GeoCities, its
successors and assigns and its officers, agents, representatives, and
employees.
10. "Commerce" shall mean as defined in Section 4 of the Federal Trade
Commission Act, 15 U.S.C. (S) 44.
I.
IT IS ORDERED that respondent, directly or through any corporation, subsidiary,
division, or other device, in connection with any online collection of personal
identifying information from consumers, in or affecting commerce, shall not make
any misrepresentation, in any manner, expressly or by implication, about its
collection or use of such information from or about consumers, including, but
not limited to, what information will be disclosed to third parties and how the
information will be used.
II.
IT IS FURTHER ORDERED that respondent, directly or through any corporation,
subsidiary, division, or other device, in connection with any online collection
of personal identifying information from consumers, in or affecting commerce,
shall not misrepresent, in any manner, expressly or by implication, the identity
of the party collecting any such information or the sponsorship of any activity
on its Web site.
III.
IT IS FURTHER ORDERED that respondent, directly or through any corporation,
subsidiary, division, or other device, in connection with the online collection
of personal identifying information from children, in or affecting commerce,
shall not collect personal identifying information from any child if respondent
has actual knowledge that such child does not have his or her parent's
permission to provide the information to respondent. Respondent shall not be
deemed to have actual knowledge if the child has falsely represented that (s)he
is not a child and respondent does not knowingly possess information that such
representation is false.
IV.
IT IS FURTHER ORDERED that respondent, directly or through any corporation,
subsidiary, division, or other device, in connection with the online collection
of personal identifying information, in or affecting commerce, shall provide
clear and prominent notice to consumers, including the parents of children, with
respect to respondent's practices with regard to its collection and use of
personal identifying information. Such notice shall include, but is not limited
to, disclosure of:
A. what information is being collected (e.g., "name," "home address," "e-mail
address," "age," "interests");
B. its intended use(s);
C. the third parties to whom it will be disclosed (e.g., "advertisers of
consumer products," mailing list companies," "the general public");
D. the consumer's ability to obtain access to or directly access such
information and the means by which (s)he may do so;
E. the consumer's ability to remove directly or have the information removed
from respondent's databases and the means by which (s)he may do so; and
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F. the procedures to delete personal identifying information from respondent's
databases and any limitations related to such deletion.
Such notice shall appear on the home page of respondent's Web site(s) and at
each location on the site(s) at which such information is collected.
Provided that, respondent shall not be required to include the notice at the
- -------------
locations at which information is collected if such information is limited to
tracking information and the collection of such information is described in the
notice required by this Part.
Provided further that, for purposes of this Part, compliance with all of the
- ---------------------
following shall be deemed adequate notice: (a) placement of a clear and
prominent hyperlink or button labeled PRIVACY NOTICE on the home page(s), which
directly links to the privacy notice screen(s); (b) placement of the information
required in this Part clearly and prominently on the privacy notice screen(s),
followed on the same screen(s) with a button that must be clicked on to make it
disappear; and (c) at each location on the site at which any personal
identifying information is collected, placement of a clear and prominent
hyperlink on the initial screen on which the collection takes place, which links
directly to the privacy notice and which is accompanied by the following
statement in bold typeface:
NOTICE: We collect personal information on this site. To learn more about how we
use your information click here.
V.
IT IS FURTHER ORDERED that respondent, directly or through any corporation,
subsidiary, division, or other device, in connection with the online collection
of personal identifying information from children, in or affecting commerce,
shall maintain a procedure by which it obtains express parental consent prior to
collecting and using such information.
Provided that, respondent may implement the following screening procedure that
- -------------
shall be deemed to be in compliance with this Part. Respondent shall collect and
retain certain personal identifying information from a child, including birth
date and the child's and parent's e-mail addresses (hereafter "screening
information"), enabling respondent to identify the site visitor as a child and
to block the child's attempt to register with respondent without express
parental consent. If respondent elects to have the child register with it,
respondent shall: (1) give notice to the child to have his/her parent provide
express parental consent to register; and/or (2) send a notice to the parent's
e-mail address for the purpose of obtaining express parental consent. The notice
to the child or parent shall provide instructions for the parent to: (1) go to a
specific URL on the Web site to receive information on respondent's practices
regarding its collection and use of personal identifying information from
children and (2) provide express parental consent for the collection and use of
such information. Respondent's collection of screening information shall be by a
manner that discourages children from providing personal identifying information
in addition to the screening information. All personal identifying information
collected from a child shall be held by respondent in a secure manner and shall
not be used in any manner other than to effectuate the notice to the child or
parent, or to block the child from further attempts to register or otherwise
provide personal identifying information to respondent without express parental
consent. The personal identifying information collected shall not be disclosed
to any third party prior to the receipt of express parental consent. If express
parental consent is not received by twenty
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(20) days after respondent's collection of the information from the child,
respondent shall remove all such personal identifying information from its
databases, except such screening information necessary to block the child from
further attempts to register or otherwise provide personal identifying
information to respondent without express parental consent.
VI.
Nothing in this order shall prohibit respondent from collecting personal
identifying information from children or from using such information, as
specifically permitted in the Children's Online Privacy Protection Act of 1998
(without regard to the effective date of the Act) or as such Act may hereafter
be amended; regulations or guides promulgated by the Commission; or self-
regulatory guidelines approved by the Commission pursuant to the Act.
VII.
IT IS FURTHER ORDERED that respondent GeoCities, and its successors and assigns,
shall provide a reasonable means for consumers, including the parents of
children, to obtain removal of their or their children's personal identifying
information collected and retained by respondent and/or disclosed to third
parties, prior to the date of service of this order, as follows:
A. Respondent shall provide a clear and prominent notice to each consumer over
the age of twelve (12) from whom it collected personal identifying information
and disclosed that information to CMG Information Services, Inc., describing
such consumer's options as stated in Part VI.C and the manner in which (s)he
may exercise them.
B. Respondent shall provide a clear and prominent notice to the parent of each
child from whom it collected personal identifying information prior to May 20,
1998, describing the parent's options as stated in Part VI.C and the manner in
which (s)he may exercise them.
C. Respondent shall provide the notice within thirty (30) days after the date
of service of this order by e-mail, postal mail, or facsimile. Notice to the
parent of a child may be to the e-mail address of the parent and, if not known
by respondent, to the e-mail address of the child. The notice shall include
the following information:
1. the information that was collected (e.g., "name," "home address," "e-
mail address," "age," "interests"); its use(s) and/or intended use(s); and
the third parties to whom it was or will be disclosed (e.g., "advertisers
of consumer products," "mailing list companies," "the general public") and
with respect to children, that the child's personal identifying information
may have been made public through various means, such as by publicly
posting on the child's personal home page or disclosure by the child
through the use of an e-mail account;
2. the consumer's and childs parents right to obtain access to such
information and the means by which (s)he may do so;
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3. the consumer's and childs parent's right to have the information removed
from respondent's or a third party's databases and the means by which (s)he
may do so;
4. a statement that childrens information will not be disclosed to third
parties, including public posting, without express parental consent to the
disclosure or public posting;
5. the means by which express parental consent may be communicated to the
respondent permitting disclosure to third parties of a child's information;
and
6. a statement that the failure of a consumer over the age of twelve (12)
to request removal of the information from respondent's databases will be
deemed as approval to its continued retention and/or disclosure to third
parties by respondent.
D. Respondent shall provide to consumers, including the parents of children, a
reasonable and secure means to request access to or directly access their or
their childrens personal identifying information. Such means may include
direct access through password protected personal profile, return e-mail
bearing an electronically verifiable signature, postal mail, or facsimile.
E. Respondent shall provide to consumers, including the parents of children, a
reasonable means to request removal of their or their childrens personal
identifying information from respondent's and/or the applicable third party's
databases or an assurance that such information has been removed. Such means
may include e-mail, postal mail, or facsimile.
F. The failure of a consumer over the age of twelve (12) to request the
actions specified above within twenty (20) days after his/her receipt of the
notice required in Part VI.A shall be deemed to be consent to the
information's continued retention and use by respondent and any third party.
G. Respondent shall provide to the parent of a child a reasonable means to
communicate express parental consent to the retention and/or disclosure to
third parties of his/her child's personal identifying information. Respondent
shall not use any such information or disclose it to any third party unless
and until it receives express parental consent.
H. If, in response to the notice required in Part VI.A, respondent has
received a request by a consumer over the age of twelve (12) that respondent
should remove from its databases the consumer's personal identifying
information or has not received the express consent of a parent of a child to
the continued retention and/or disclosure to third parties of a child's
personal identifying information by respondent within twenty (20) days after
the parent's receipt of the notice required in Part VI.B, respondent shall
within ten (10) days:
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1. Discontinue its retention and/or disclosure to third parties of such
information, including but not limited to (a) removing from its databases
all such information, (b) removing all personal home pages created by the
child, and (c) terminating all e-mail accounts for the child; and
2. Contact all third parties to whom respondent has disclosed the
information, requesting that they discontinue using or disclosing that
information to other third parties, and remove the information from their
databases.
With respect to any consumer over the age of twelve (12) or any parent of a
child who has consented to respondent's continued retention and use of
personal identifying information pursuant to this Part, such consumer's or
parent's continuing right to obtain access to his/her or a child's personal
identifying information or removal of such information from respondent's
databases shall be as specified in the notice required by Part IV of this
order.
I. Within thirty (30) days after the date of service of this order, respondent
shall obtain from a responsible official of each third party to whom it has
disclosed personal identifying information and from each GeoCities Community
Leader a statement stating that (s)he has been advised of the terms of this
order and of respondent's obligations under this Part, and that (s)he agrees,
upon notification from respondent, to discontinue using or disclosing a
consumer's or child's personal identifying information to other third parties
and to remove any such information from its databases.
J. As may be permitted by law, respondent shall cease to do business with any
third party that fails within thirty (30) days of the date of service of this
order to provide the statement set forth in Part VI.I or whom respondent knows
or has reason to know has failed at any time to (a) discontinue using or
disclosing a child's personal identifying information to other third parties,
or (b) remove any such information from their databases. With respect to any
GeoCities Community Leader, the respondent shall cease the Community Leader
status of any person who fails to provide the statement set forth in Part VI.I
or whom respondent knows or has reason to know has failed at any time to (a)
discontinue using or disclosing a child's personal identifying information to
other third parties, or (b) remove any such information from their databases.
For purposes of this Part: "third party(ies)" shall mean each GeoCities
- --------------------------
Community Leader, CMG Information Services, Inc., Surplus Software, Inc.
(Surplus Direct/Egghead Computer), Sage Enterprises, Inc. (GeoPlanet/Planetall),
Netopia, Inc. (Netopia), and InfoBeat/Mercury Mail (InfoBeat).
VIII.
IT IS FURTHER ORDERED that for the purposes of this order, respondent shall not
be required to remove personal identifying information from its archived
database if such information is retained solely for the purposes of Web site
system maintenance, computer file back-up, to block a child's attempt to
register with or otherwise provide personal
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identifying information to respondent without express parental consent, or to
respond to requests for such information from law enforcement agencies or
pursuant to judicial process. Except as necessary to respond to requests from
law enforcement agencies or pursuant to judicial process, respondent shall not
disclose to any third party any information retained in its archived database.
In any notice required by this order, respondent shall include information,
clearly and prominently, about its policies for retaining information in its
archived database.
IX.
IT IS FURTHER ORDERED that for five (5) years after the date of this order,
respondent GeoCities, and its successors and assigns, shall place a clear and
prominent hyperlink within its privacy statement which states as follows in bold
typeface:
NOTICE: Click here for important information about safe surfing from the Federal
Trade Commission.
The hyperlink shall directly link to a hyperlink/URL to be provided to
respondent by the Commission. The Commission may change the hyperlink/URL upon
thirty (30) days prior written notice to respondent.
X.
IT IS FURTHER ORDERED that respondent GeoCities, and its successors and assigns,
shall maintain and upon request make available to the Federal Trade Commission
for inspection and copying the following:
A. For five (5) years after the last date of dissemination of a notice
required by this order, a print or electronic copy in HTML format of all
documents relating to compliance with Parts IV through VIII of this order,
including, but not limited to, a sample copy of every information collection
form, Web page, screen, or document containing any representation regarding
respondent's information collection and use practices, the notice required by
Parts IV through VI, any communication to third parties required by Part VI,
and every Web page or screen linking to the Federal Trade Commission Web site.
Each Web page copy shall be accompanied by the URL of the Web page where the
material was posted online. Electronic copies shall include all text and
graphics files, audio scripts, and other computer files used in presenting
information on the World Wide Web; and
Provided that, after creation of any Web page or screen in compliance with this
- -------------
order, respondent shall not be required to retain a print or electronic copy of
any amended Web page or screen to the extent that the amendment does not affect
respondent's compliance obligations under this order.
B. For five (5) years after the last collection of personal identifying
information from a child, all materials evidencing the express parental
consent given to respondent.
XI.
IT IS FURTHER ORDERED that respondent GeoCities, and its successors and assigns,
shall deliver a copy of this order to all current and future principals,
officers, directors, and managers, and to all current and future employees,
agents, and representatives having responsibilities with respect to the subject
matter of this order. Respondent shall deliver this order to current personnel
within thirty (30) days after the date of service of this
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order, and to future personnel within thirty (30) days after the person assumes
such position or responsibilities.
XII.
IT IS FURTHER ORDERED that respondent GeoCities, and its successors and assigns,
shall establish an "information practices training program" for any employee or
GeoCities Community Leader engaged in the collection or disclosure to third
parties of consumers' personal identifying information. The program shall
include training about respondent's privacy policies, information security
procedures, and disciplinary procedures for violations of its privacy policies.
Respondent shall provide each such current employee and GeoCities Community
Leader with information practices training materials within thirty (30) days
after the date of service of this order, and each such future employee or
GeoCities Community Leader such materials and training within thirty (30) days
after (s)he assumes his/her position or responsibilities.
XIII.
IT IS FURTHER ORDERED that respondent GeoCities, and its successors and assigns,
shall notify the Commission at least thirty (30) days prior to any change in the
corporation that may affect compliance obligations arising under this order,
including, but not limited to, a dissolution, assignment, sale, merger, or other
action that would result in the emergence of a successor corporation; the
creation or dissolution of a subsidiary, parent, or affiliate that engages in
any acts or practices subject to this order; the proposed filing of a bankruptcy
petition; or a change in the corporate name or address. Provided, however, that,
-----------------
with respect to any proposed change in the corporation about which respondent
learns less than thirty (30) days prior to the date such action is to take
place, respondent shall notify the Commission as soon as is practicable after
obtaining such knowledge. All notices required by this Part shall be sent by
certified mail to the Associate Director, Division of Enforcement, Bureau of
Consumer Protection, Federal Trade Commission, Washington, D.C. 20580.
XIV.
IT IS FURTHER ORDERED that respondent GeoCities, and its successors and assigns,
shall, within sixty (60) days after service of this order, and at such other
times as the Federal Trade Commission may require, file with the Commission a
report, in writing, setting forth in detail the manner and form in which they
have complied with this order.
XV.
This order will terminate on February 5, 2019, or twenty (20) years from the
most recent date that the United States or the Federal Trade Commission files a
complaint (with or without an accompanying consent decree) in federal court
alleging any violation of the order, whichever comes later; provided, however,
-----------------
that the filing of such a complaint will not affect the duration of:
A. Any Part in this order that terminates in less than twenty (20) years;
B. This order's application to any respondent that is not named as a defendant
in such complaint; and
C. This order if such complaint is filed after the order has terminated
pursuant to this Part.
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Provided, further, that if such complaint is dismissed or a federal court rules
- -----------------
that the respondent did not violate any provision of the order, and the
dismissal or ruling is either not appealed or upheld on appeal, then the order
will terminate according to this Part as though the complaint had never been
filed, except that the order will not terminate between the date such complaint
is filed and the later of the deadline for appealing such dismissal or ruling
and the date such dismissal or ruling is upheld on appeal.
By the Commission.
Donald S. Clark
Secretary
ISSUED: February 5, 1999
SEAL
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EXHIBIT K
Global Sports Competitors
-------------------------
[*]
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EXHIBIT L
Barter Media
------------
1. In-Store Promotions (Estimated Media Value: [*]):
------------------------------------------------
(a) As soon as reasonably practicable but no later than [*] days after the
Effective Date, Global Sports shall provide the following promotions in no less
than [*] stores of The Sports Authority (the "Promotion Stores"). Global Sports
shall provide in the entrance of each of the Promotion Stores a fixed [*]
"Leaseline" poster display (the "Yahoo Poster"). Such poster shall: (i) contain
a message similar in form to: [*] (ii) be displayed prominently in the front of
each Promotion Store (e.g., at the cash register, exit, or entrance); (iii) be
displayed continuously until the Combined Traffic of the Promotion Stores equals
or exceeds [*]; and (iv) be approved by Yahoo. "Combined Traffic" shall mean
the combined number of visitors to the Promotion Stores beginning, with respect
to each individual Promotion Store, on the date that such Promotion Store
displays the Yahoo Poster. Global Sports shall provide Yahoo: (x) an advance
written list identifying each of the Promotion Stores and the date such
Promotion Store will begin displaying the Yahoo Poster (updated as necessary),
and (y) satisfactory verification of the calculation of visitors to the
Promotion Stores. No Promotion Store's visitors shall be included as part of
the Combined Traffic unless and until the foregoing information has been
provided to Yahoo.
(b) At Yahoo's option, for [*] of the Term, Global Sports shall ensure that a
"Yahoo Bag Stuffer" is placed in the shopping bag of each Promotion Store
customer that purchases an item and receives a shopping bag. "Yahoo Bag
Stuffer" shall mean an item easily placed in a shopping bag (e.g., a compact
disc or coupon book). Yahoo shall pay the printing costs associated with any
Yahoo Bag Stuffer and provide Global Sports at least sixty (60) days notice
prior to the date on which such Yahoo Bag Stuffer promotion begins.
2. Newspaper Promotions (Estimated Media Value: [*]):
- -----------------------------------------------------
As soon as reasonably practicable but no later than [*], Global Sports Retailers
shall place advertising (the "Newspaper Ads") in certain U.S. newspapers (the
Promotion Newspapers"). The Newspaper Ads shall: (i) include a promotion of
Yahoo which shall take the form of a [*] "starburst or other advertising unit
mutually agreed upon by the parties;" (ii) contain a message similar in form to:
[*] (or such other message mutually agreed upon by the parties);" and (iii) be
included in no less than [*] copies of Promotion Newspapers (or inserts within
such number of Promotion Newspaper copies). Global Sports shall: (x) provide
Yahoo advance notice prior to the running of any Newspaper Ads; (y) receive
Yahoo's prior written approval with respect to the appearance of any Yahoo Brand
Feature in the Newspaper Ads; and (z) provide Yahoo satisfactory verification of
the scope of the Newspaper Ads distribution (e.g., the applicable insertion
orders).
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EXHIBIT M
(form of press release)
DRAFT 10/1/99
Company Contact: Michael R. Conn
Senior Vice President Strategic Development
(610) 878-0900
[email protected]
-------------------------
FOR IMMEDIATE RELEASE
GLOBAL SPORTS AND YAHOO! SIGN MARKETING AGREEMENT
Sporting Goods E-Tailer and Yahoo! team up to Provide Merchandising for the
Sports & Recreation Section of Yahoo! Shopping
Leading Sporting Goods Retailers to be Prominently Promoted Through Unique
Marketing Program
KING OF PRUSSIA, PENNSYLVANIA, OCTOBER XX, 1999 - GLOBAL SPORTS, INC. (NASDAQ:
GSPT), an e-Tail company that operates under exclusive long-term agreements the
Internet businesses of leading sporting goods retailers, including The Sports
Authority, The Athlete's Foot, Sport Chalet, MC Sports, and Sports & Recreation,
announced today a marketing relationship with Yahoo! Inc., a leading global
Internet media company. Under the agreement, Global Sports' partners' Web sites
will be prominently featured throughout the Yahoo! network of properties. The
agreement will allow Yahoo!'s millions of users to easily access Global Sports'
multiple and unique Web sites, providing consumers with a wide variety of
unparalleled shopping experiences and an extensive selection of name-brand
sporting goods merchandise.
In particular, Global Sports and Yahoo! will team up to provide the advertising
and merchandising for the Sports and Recreation section of the Yahoo! Shopping
service. Moreover, every single page of Yahoo! Sports content will provide a
text link directly to the Sports and Recreation area of Yahoo! Shopping.
Through this premier relationship, Global Sports' partners' Web sites will be
prominently promoted in numerous popular sports-related areas of the Yahoo!
network, including fantasy sports, news, celebrity athlete events, sporting
games, sports clubs and through front page promotions and local guides.
Furthermore, Global Sports and Yahoo! will team up to provide sporting goods
affiliate opportunities to Yahoo! Geocities. Through in context merchandising,
Yahoo! users will be able to access targeted merchandise related to the Super
Bowl, NBA Finals, World Series, NCAA Final Four, Wimbledon, and the U.S Open via
links to Global Sports' partners' on-line e-Tail stores.
"This unique marketing alliance takes advantage of the extensive selection of
sporting goods provided by Global Sports' partners' and a variety of integrated
programs throughout the popular Yahoo! network" said Anil Singh, Chief Sales &
Marketing Officer, Yahoo! Inc. "This
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relationship also provides a great opportunity to continue to build the Yahoo!
brand by leveraging the stores and marketing of Global Sports' bricks and mortar
retail partners."
Commenting on the agreement, Michael Rubin, chairman and CEO of Global
Sports, Inc., said, "Yahoo! represents an excellent opportunity for Global
Sports to quickly introduce its multiple Web sites to millions of on-line
consumers through a highly targeted and diverse marketing alliance."
Global Sports, Inc. (http://www.GS-Interactive.com) is an e-Tail company that
-----------------------------
operates under exclusive long-term agreements the Internet businesses of leading
sporting goods retailers, including The Sports Authority, The Athlete's Foot,
Sport Chalet, MC Sports, and Sports and Recreation. On July 26, 1999 SOFTBANK
Capital Partners LP invested $80 million into Global Sports, Inc. Global
Sports, Inc. shares are included in the Russell 2000 index.
Statements about the Company's outlook and all other statements in this release
other than historical facts are forward-looking statements. Since these
statements involve risks and uncertainties, they are subject to change at any
time and the Company's actual results may differ materially from expected
results. The Company derives most of its forward-looking statements from its
operating budgets and forecasts, which are based upon many detailed assumptions.
While the Company believes that its assumptions are reasonable, there are
inherent difficulties in predicting certain important factors, especially the
timing and magnitude of sales and the overall condition of the sporting goods
industry. These factors, as and when applicable, are discussed in the Company's
filings with the SEC, a copy of which may be obtained from the Company without
charge.
# # #
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EXHIBIT N
Yahoo Shopping Style Guide
(attached)
[Pictures]
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EXHIBIT O
Yahoo Delivers Guidelines
(attached)
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Yahoo! Delivers
Program Guidelines
Choose up to three targeted qualifiers.
. Choose from Yahoo! registration demographics and geo-demographic
information.
Promotional offer must be valid for a minimum of [*] from e-mailing date.
. Shorter dates must be approved by Yahoo!
. Yahoo will only track mailings for [*].
. Expiration date needs to be clearly stated in message
Advertiser must submit advertising creative no less than [*] business days ([*]
days with [*] or more creative) prior to mail date to guarantee timely delivery.
No Sweepstakes.
No alcohol or tobacco related Delivers.
Advertiser CANNOT use the Yahoo! logo anywhere in their offer.
Usage of the Yahoo! name must be approved by Yahoo!
Advertiser must provide customer support contact information so we can forward
support calls.
Advertisers must present Yahoo!
Delivers members with an unique offer, not available to the general public.
A maximum of [*] different targeted e-mails sent per day.
Advertiser can only target same user once every [*].
Must have a new offer every [*].
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What are the Specifications?
---------------------------------------------------
HTML message specifications are outlined below:
---------------------------------------------------
HTML Specifications:
- -------------------
Width of message must not exceed [*] pixels.
Total page file size, including images, must be no larger than [*]
each message may have up to [*] images.
Image animation is limited to [*] seconds, no looping.
HTML code must be free of errors and must pass the weblint validation
-------
checker.
No Java, JavaScript, frames, ActiveX, or dynamic HTML.
No body background image or color. (May use colored tables to simulate a
background color).
Subject line Specifications:
- ---------------------------
Subject line must be [*] characters or less. The subject line will be in
the following format: Yahoo! Delivers: [*] characters submitted by client
will be inserted here
Subject line cannot mislead user.
All submissions are subject to Yahoo's! approval.
All specifications are subject to change without notice.
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What are the Specifications?
continued......
---------------------------------------------------
Text message specifications are outlined below:
---------------------------------------------------
Text Specifications:
- --------------------
. Text line length not to exceed [*] characters.
. [*] lines maximum = (about [*] characters total including spaces).
. No more than [*] url's can be embedded in each text message.
. All url's will be reformatted to include redirect coding for tracking
purposes. The encoded url's will appear different in the body of the
message then from the original url submitted to Yahoo!
. Copy must be submitted at the same time as HTML.
. Copy and offer for the text message must be parallel to the content of the
HTML message.
. All submissions are subject to Yahoo's approval.
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