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FASHION ACCESSORIES PROGRAM
ADVERTISING AND PROMOTION AGREEMENT
This Advertising and Promotion Agreement (this "Agreement") is entered into as of August 11, 1999 (the "Effective Date") between Yahoo! Inc., a Delaware corporation with offices at 3420 Central Expressway, Santa Clara, CA 95051 ("Yahoo") and Ashford.com, Inc., a Delaware corporation with offices at 3800 Buffalo Speedway, Suite 400, Houston, Texas 77098 ("Ashford").
In consideration of the mutual promises contained in this Agreement, Yahoo and Ashford hereby agree as follows:
1. DEFINITIONS.
The following terms are used in this Agreement with the respective meanings set forth below:
"Ashford Banner" shall mean the advertising promotions Ashford provides to Yahoo hereunder and reasonably approved by Yahoo that: (a) promotes the on-line sale of Fashion Accessories Products, (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 12K, and (f) will permit users to navigate directly to a Page on the Ashford Site relating to the Ashford Banner content. Yahoo may modify these specifications (except clause (f)) at its reasonable discretion, provided that any such modification does not have a material adverse impact on the value of the Ashford Banner, as would be reasonably determined by a similarly situated independent third party merchant.
"Ashford Banner Category Pages" shall mean those Pages within the Ashford Banner Categories identified on Exhibit A.
"Ashford Banner Keywords" shall mean those keywords identified as such on Exhibit A; provided that, Yahoo may substitute any such keyword for a comparable keyword in its reasonable discretion with consent from Ashford, which shall not be unreasonably withheld or delayed.
"Ashford Banner Pages" shall mean the Ashford Banner Category Pages and Ashford Banner Search Results Pages.
"Ashford Banner Search Results Pages" shall mean those Pages displayed upon a user's searching the Yahoo Main Site for an Ashford Banner Keyword.
"Ashford Brand Features" shall mean all trademarks, service marks, logos and other distinctive brand features of Ashford that are used in or relate to its business.
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"Ashford Button" shall mean a link substantially similar in form as that set forth on Exhibit B that: (a) contains an Ashford logo and has dimensions no larger than 88 pixels wide by 31 pixels high, (b) does not contain animation, (c) has a file size of no greater than 2K, (d) contains alt text of no more than ten (10) characters (including spaces), (e) and will permit users to navigate directly to a Page on the Ashford Site reasonably relating to the Page on which such Ashford Button appears. Yahoo may modify these specifications (except clause (e)) at its reasonable discretion, provided that any such modification does not have a material adverse impact on the value of the Ashford Button, as would be reasonably determined by a similarly situated independent third party merchant.
"Ashford Button Category Pages" shall mean those Pages within the Ashford Button Categories identified on Exhibit A.
"Ashford Button Keywords" shall mean those keywords identified as such on Exhibit A; provided that, Yahoo may substitute any such keyword for a comparable keyword in its reasonable discretion with consent from Ashford, which shall not be unreasonably withheld or delayed.
"Ashford Button Pages" shall mean the Ashford Button Category Pages and Ashford Button Search Results Pages.
"Ashford Button Pages Area" shall mean the area on the Ashford Button Pages on which the Ashford Button appears (together with other merchant or Yahoo buttons).
"Ashford Button Search Results Pages" shall mean those Pages displayed upon a user's searching the Yahoo Main Site for an Ashford Button Keyword
"Ashford Competitors" shall mean those merchants listed on Exhibit G; provided that, any such entity shall not be considered to be an Ashford Competitor to the extent it [*]. The parties agree that during the Term, Ashford may [*] (an "Ashford Competitor Update Request"). Notwithstanding the forgoing, if Yahoo has already entered into a contractual relationship with any such third party prior to its receipt of an Ashford Competitor Update Request, such third party will not be added to such list [*].
"Ashford E-Mail" shall mean an e-mail message promoting Fashion Accessories Products that: (a) is a single HTML mail message; (b) contains an image in JPEG or GIF format under 5K in file size; (c) has a total page weight of no more than 30K, (d) contains no animation longer than 6 seconds (with no "looping") (e) contains no Java, JavaScript, frames, ActiveX, dynamic HTML, background body image or background color, (f) contains up to four lines of text as provided by Ashford and reasonably approved by Yahoo, with no more than 40 characters (including spaces) on each line. Yahoo may modify these specifications at its reasonable discretion, provided that any such modification does not have a material adverse impact on the value of the Ashford E-Mail, as would be reasonably determined by a similarly situated independent third party merchant.
"Ashford Front Page Promotion" shall mean a promotion substantially similar in form as that set forth on Exhibit B which will appear on the home page of the Yahoo Main Site, that will in all cases comply with Yahoo's current front-page promotion guidelines attached as Exhibit D, which may be modified by Yahoo at its sole discretion; provided that, in the event that any such
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modification has a material adverse impact on the value of the Ashford Front Page Promotion as would be reasonably determined by a similarly situated independent third-party merchant, Ashford shall be permitted to substitute any undelivered Ashford Front Page Promotion inventory for alternative promotions in the Yahoo Main Site mutually agreed upon by the parties ("Substitue Front Page Inventory"). Any substitutions shall be made based on the ratio of Yahoo's then-current ratecard prices for the Substitute Front Page Inventory and the then current value of the Ashford Front Page Promotion inventory to be substituted (i.e., if at the time of substitution, the Substitute Front Page Inventory is valued at a [*] cpm on Yahoo's then current ratecard, and the then current value of the Ashford Front Page Promotion in the then current rate card is [*], then Ashford shall get [*] the number of remaining impressions of the Ashford Front Page Promotions when converted to the new inventory).
"Ashford Link" shall mean any link placed by Yahoo under this Agreement, including, without limitation, the Ashford Banner, Ashford Button, and Ashford E-Mail.
"Ashford Site" shall mean the web site owned by Ashford currently located at http://www.ashford.com.
"Fashion Accessories Merchant" shall mean any company or other entity that derives fifty percent (50%) or more of its revenue through the on-line sale of Fashion Accessories Products.
"Fashion Accessories Merchant Program" shall mean Yahoo's program consisting of certain marketing, advertising and promotional activities with Fashion Accessories Merchants.
"Fashion Accessories Products" shall mean jewelry, certain leather goods (e.g., handbags and wallets), pens, eyewear and similar fashion accessories (e.g., watches).
"February 1999 Agreement" shall mean that Advertising and Promotion Agreement, between Ashford and Yahoo, dated February 26, 1999.
"Launch Date" shall mean the date of first public availability of the Ashford Links on the Yahoo Properties.
"Merchant Button" shall mean a link to a third party merchant's World Wide Web site that substantially conforms to the specifications of Yahoo's then current merchant promotional buttons.
"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.
"Term" shall mean the period beginning on the Effective Date and continuing for a period of twelve (12) months following the Launch Date.
"Treasure Hunt Click-Throughs" shall mean a user's "pressing" or "clicking" on a Treasure Hunt Promotion "Win It" icon, as measured by Yahoo's advertiser reporting system.
"Treasure Hunt Promotion" shall mean a multi-sponsor promotion on the Yahoo Properties, conforming to the specifications set forth in Exhibit E (which may be modified at
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Yahoo's reasonable discretion, provided that any such modification does not have a material adverse impact on the value of the Treasure Hunt Promotion), in which users view sponsors' pages and answer demographic questions in exchange for entries towards a drawing for prizes.
"Yahoo Brand Features" shall mean all trademarks, service marks, logos and other distinctive brand features of Yahoo that are used in or relate to its business.
"Yahoo Main Site" shall mean Yahoo's principal U.S. based directory to the World Wide Web currently located at http://www.yahoo.com.
"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 Sports" shall mean Yahoo's sports related property currently located at http://sports.yahoo.com.
ASHFORD BANNER, FRONT PAGE PROMOTION AND SPORTS PROMOTION.
2.1 During the Term, Yahoo shall provide the Ashford Banner, on a
rotating basis until its Page View obligations under Section 7 are
met, on the Ashford Banner Pages. Yahoo agrees to use commercially
reasonable efforts to ensure that the Ashford Banners are served
on the Ashford Banner Pages during each month of the Term, unless
otherwise mutually agreed upon by the parties.
2.2 During the Term, Yahoo shall provide the Ashford Front Page
Promotion, on a rotating basis until its Page View obligations
under Section 7 are met, on the home page of the Yahoo Main Site.
Yahoo agrees to use commercially reasonable efforts to ensure that
the Ashford Front Page Promotions are served on the home page of
the Yahoo Main Site on the dates specified on Exhibit A or,
subject to availability, other dates mutually agreed upon by the
parties.
2.3 During the Term, Yahoo shall provide Ashford with an advertising
promotion valued at [*], calculated at a [*] discount off of
Yahoo's then current standard rate card prices, in Yahoo Sports.
The form of such advertisement shall be mutually agreed upon by
the parties but consistent with applicable standard forms of
advertising appearing in Yahoo Sports.
ASHFORD BUTTONS.
3.1 Yahoo shall provide the Ashford Button on the Ashford Button Pages
throughout the Term. The Ashford Button's placement on the Ashford
Button Pages shall rotate equally with any other buttons appearing
in the Ashford Button Pages Area (consistent with the limited
exclusivity provision of Section 6.1). Yahoo shall provide up to
three (3) text links to accompany the Ashford Button on the
Ashford Button Pages. In no case shall any Ashford Button text
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link exceed sixteen (16) characters (including spaces). Further,
each Ashford Button text link shall promote Fashion Accessories
Products and permit users to navigate via a link directly to a
Page on the Ashford Site relating to the Fashion Accessories
Products relevant to the Ashford Button Page on which such text
link appears.
ASHFORD E-MAILS AND TREASURE HUNT PROMOTION.
4.1 Yahoo shall deliver (i) [*] Ashford E-Mails to unique registered
users of its U.S. based email service through the Yahoo! Delivers
program (the "Yahoo Delivers Program"); and (ii) [*] Ashford
E-Mails to unique registered users of its U.S. based email service
through the Yahoo! Welcome and/or Birthday Club program (the
"Yahoo Welcome Program"). In addition, Yahoo shall deliver [*]
Treasure Hunt Click-Throughs. In all cases, Ashford E-Mails shall
be delivered only (x) to those registered users of Yahoo's U.S.
based e-mail service that have indicated during the registration
process for such service a willingness to receive promotional
solicitations via Yahoo Mail; and (y) in accordance with Yahoo's
privacy policy. The text of the Ashford E-Mail and materials
necessary for Ashford's participation in the aforementioned
programs shall be provided by Ashford and shall be subject to
Yahoo's reasonable approval and consistent with Yahoo's generally
applicable policies and guidelines for such messages and programs.
Yahoo shall use commercially reasonable efforts to target the
Ashford E-Mails delivery to its users based on gender and age
characteristics mutually agreed upon by the parties.
IMPLEMENTATION.
5.1 Yahoo will be solely responsible for the user interface and
placement of the Ashford Links and Ashford shall be solely
responsible for and shall provide Yahoo with all artwork and
design elements of the Ashford Links.
5.2 Ashford shall promptly provide Yahoo all URLs, URL formats (as
applicable), content, and other materials necessary for Yahoo to
provide the Ashford Links. All content and material contained in
the Ashford Links is subject to Yahoo's reasonable approval 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.
5.3 During the Term, Ashford hereby grants to Yahoo a non-exclusive,
worldwide, fully paid license to use, reproduce and display the
Ashford Brand Features (i) to indicate the location of the Ashford
Links as set forth herein and (ii) in connection with the
marketing and promotion of Ashford in the Yahoo Properties. In
association with the forgoing license, Yahoo agrees to comply with
the reasonable quality control guidelines provided by Ashford to
Yahoo
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from time to time. Yahoo agrees that all uses of the Ashford Brand
Features shall be on behalf of Ashford and the goodwill associated
therewith shall inure to the sole benefit of Ashford.
5.4 In no event shall the first Page on the Ashford Site to which
users click-through directly from any Ashford Link contain graphic
or textual hyperlinks, banner advertisements or promotions of the
following third parties: [*]. The parties agree that during the
Term, Yahoo may request in writing that other third parties are
added to the forgoing list (a "Section 5.4 Request"), provided
that such party is primarily involved in providing users [*].
Notwithstanding the forgoing, if Ashford has already entered into
a contractual relationship with any such third party prior to its
receipt of a Section 5.4 Request, such third party will not be
added to such list until the recited contractual obligations in
conflict with the above provisions have been satisfied.
5.5 Ashford shall place a Yahoo graphic link on the first Page of the
Ashford Site to which users directly click-through from any
Ashford Link. Such Yahoo graphic link shall be substantially
similar in form as that set forth on Exhibit B, unless the parties
mutually agree to an alternative placement; and (b) directly link
the user back to a Page on the Yahoo Properties either to the page
from which the user click-through from or to the Yahoo Main Site
home page.
5.6 During the Term, Yahoo hereby grants to Ashford a non-exclusive,
worldwide, fully paid license to use, reproduce and display the
Yahoo name and logo to indicate the location of the Yahoo graphic
links as set forth herein. In association with the forgoing
license, Ashford agrees to comply with the Trademark Usage
Guidelines attached as Exhibit H. Ashford agrees that all uses of
the Yahoos name and logo shall be on behalf Yahoo and the goodwill
associated therewith shall inure to the sole benefit of Yahoo.
5.7 The Ashford Site shall comply with the scale, speed and
performance requirements mutually agreed upon by the parties, but
in no event shall the scale, speed and performance of the Ashford
Site be materially less capable in such regard to comparable
similarly situated Yahoo merchants.
LIMITED EXCLUSIVITY; RIGHT OF FIRST PRESENTATION.
6.1 Yahoo shall display no more than one (1) Merchant Button of any
Ashford Competitor on the Ashford Button Pages. Further, in the
event that Yahoo elects to display seven (7) or more Merchant
Buttons on the Ashford Button Pages, Yahoo shall: (i) increase its
total Page View obligation set forth in Section 7.1 from [*] Page
Views to [*] Page Views; and (ii) increase the number of Page
Views referenced in Section 7.2 relating to the Ashford Button
from [*] to [*].
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6.2 For clarity, Ashford acknowledges that the foregoing limited
exclusivity provision of Section 6.1 shall not preclude Yahoo
from, among other things: (i) promoting or placing banners,
Merchant Buttons or any other advertising of any entity (including
Ashford Competitors) on any Yahoo Property other than the Ashford
Button Pages; (ii) subject to Section 6.1, promoting or placing
banners, Merchant Buttons or any other advertising of any entity
except Ashford Competitors on the Ashford Button Pages; or (iii)
promoting or placing banners or any other advertising except
Merchant Buttons of any entity (including Ashford Competitors) on
the Ashford Button Pages, provided that if Yahoo incorporates a
non-banner promotion which is larger than the Ashford Buttons on
the Ashford Button Pages, Ashford shall have the right to and
Yahoo will agree to exchange the relevant and affected Ashford
Button Page Views with [*].
6.3 Within thirty (30) days prior to the expiration of the Term, Yahoo
will provide written notice to Ashford in the event that Yahoo, at
its sole discretion, elects to extend the availability of the
Fashion Accessories Merchant Program described in this Agreement.
Yahoo shall describe Yahoo's reasonable business requirements for
such Fashion Accessories Merchant Program in its written notice to
Ashford. The parties will [*] with respect to such Fashion
Accessories Merchant Program [*]. If Ashford declines [*] with
Yahoo within ten (10) days after receiving such written notice
from Yahoo, or if the parties fail to [*] within ten (10) business
days following [*] (or such later date as is agreed by the
parties), Yahoo may offer the opportunity to any third party. The
parties acknowledge that the promotional opportunities and terms
offered in any Fashion Accessories Merchant Program may differ
substantially from those contained in this Agreement. Further,
under no circumstances shall the foregoing right of presentation
be deemed to restrict Yahoo's ability to extend merchant positions
in any subsequent Fashion Accessories Merchant Program to any
third parties, provided that Yahoo complies with the terms of this
Section 6.3.
6.4 Yahoo will provide written notice to Ashford in the event that
Yahoo, at its sole discretion, elects to create, during the Term,
a new promotional opportunity substantially similar in scope and
nature to this Fashion Accessories Merchant Program on the Yahoo
Main Site. Yahoo shall describe Yahoo's reasonable business
requirements for the new promotional opportunity in its written
notice to Ashford. If Ashford declines [*] with Yahoo within ten
(10) days after receiving such written notice from Yahoo, or if
the parties fail to [*] within ten (10) business days following
[*] (or such later date as is agreed by the parties), Yahoo may
offer the opportunity to any third party. For clarity, the parties
acknowledge that advertising and promotional opportunities that
are in the normal course of Yahoo's business including, but not
limited to,
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banner ads on category pages and keyword search results pages,
shall not be considered new promotional opportunities for the
purposes of this Section 6.4.
PAGE VIEWS.
7.1 With respect to the Ashford Button, Ashford Banner, and Ashford
Front Page Promotion, Yahoo shall deliver a minimum of [*] Page
Views.
7.2 Yahoo shall use reasonable commercial efforts to deliver such Page
Views as follows ...
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