EXHIBIT 10.18
ADVERTISING AGREEMENT
This Agreement, dated as of April 22, 1999, is made and entered into by and between Amazon.com. Inc. ("Amazon.com"), and Pets.com. Inc. ("Company"), Amazon.com and Company sometimes are referred to collectively as the "Parties" and individually as a "Party." Amazon.com and Company agree as follows:
SECTION 1. DEFINITIONS
"ADVERTISING PLACEMENT" means, [*] or other [*] provided for in Section 2 or Section 3.
"AFFILIATE" means, with respect to either Party, any individual or entity that directly or indirectly controls, is controlled by or is under common control with that Party, or which Party beneficially owns at least [*] of the equity interests therein.
"AMAZON.COM SITE" means the Web Site identified by the URL www.amazon.com (and any successors or replacements).
"COMPANY SITE" means the Web Site identified by the URL www.Pets.com (and any successors or replacements).
"CONFIDENTIAL INFORMATION" means non-public information and know-how of the Disclosing Party which, by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary and/or confidential, or which has been or is designated as proprietary and/or confidential, including without limitation any information exchanged between the Parties under Sections 5.2 and 5.3 of this Agreement. Confidential Information does not include information that the Receiving Party can show: (a) was known by the Receiving Party prior to disclosure thereof by the Disclosing Party; (b) was in or entered the public domain through no fault of the Receiving Party; (c) is disclosed to the Receiving Party by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality; or (d) is independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party.
"DISCLOSING PARTY" means a Party that discloses Confidential Information to the other Party in connection with this Agreement.
"HOME PAGE" means, with respect to a Web Site, the Web page designated by the operator of the Web Site as the initial and primary end user interface for the Web Site.
"INTELLECTUAL PROPERTY RIGHT" means any patent, copyright, trademark, trade dress, trade name or trade secret right and any other intellectual property or proprietary right.
"JUMP PAGE" means the Web page maintained on the Amazon.com Site, by or for Amazon.com. in accordance with Section 2.1.1.
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SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. "NEW COMPANY CUSTOMER" means any individual or entity that accesses the Company site via a hypertext link embedded in any Advertisement Placement on the Amazon.com Site and that either (a) [*] from Company or any or its Affiliates before leaving the Company Site by any means, or (b) places at least one product or service [*] or on a shopping list (or similar data construct) or otherwise identifies, selects or takes other affirmative steps [*] in a manner that is recorded and maintained on the Company Site, then [*] by any means, and subsequently [*] and purchases any such identified product or service.
"NEW AMAZON.COM CUSTOMER" means any individual or entity that accesses the Amazon.com Site via a hypertext link embedded in any Advertising Placement on the Company Site and that either (a) [*] from Amazon.com or any of its Affiliates before leaving the Amazon.com Site by any means, or (b) places at least one product or service [*] or on a shopping list (or similar data construct) or otherwise identifies, selects or takes other affirmative steps to order a product or service in a manner that is recorded and maintained on the Company Site, then leaves [*] by any means, and subsequently returns to [*] such identified product or service.
"RECEIVING PARTY" means a Party that receives Confidential Information from the other Party in connection with this Agreement.
"TERM" means the term of this Agreement as defined in Section 9.
"WEB SITE" means any point of presence maintained on the Internet or on any other public data network. With respect to any Web Site maintained on the World Wide Web or any successor public data network, such Web Site includes all HTML pages (or similar unit of information presented in any relevant data protocol) that either (a) are identified by the same second-level domain (such as http://www.amazon.com) or by the same equivalent level identifier in any relevant address scheme, or (b) contain branding, graphics, navigation or other characteristics such that a user reasonably would conclude that the pages are part of an integrated information or service offering.
SECTION 2. [*]
2.1 [*]
2.1.1 During the Term, Amazon.com will create and maintain a Web page within the Amazon.com Site that contains (a) [*] Amazon.com users [*], and (b) a hypertext link that [*] Amazon.com [*] to the [*] of the [*]. The content, [*] and the [*]-related text and/or graphics contained in the Jump Page will be solely determined by Amazon.com after [*], subject to the implementation process outlined in Section 4 and the requirements of Section 6.3.
2.1.2 During the Term, Amazon.com [*] on the Amazon.com Site [*] from [*] of the [*] to the
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Jump Page, in accordance with and subject to the terms and conditions of this Agreement. The [*] links will be determined by Amazon.com after [*], subject to the implementation process outlined in Section 4, and will be limited by, among other things, the impact on user experience, availability of space and other business considerations. Notwithstanding anything to the contrary contained in this Agreement, [*] to place a [*] on the Home Page of the Amazon.com Site.
2.1.3 Subject to Amazon.com's specific approval, and by way of example only, [*] (a) certain order confirmation and (b) relevant [*].
2.1.4 If, during the Term, Amazon.com creates and maintains an area within the Amazon.com Site that [*] for the Web Sites [*]. Amazon.com will include a [*] in such area of the Amazon.com Site. The [*] will be determined by Amazon.com in [*].
2.2 LAUNCH-RELATED PROMOTIONS
2.2.1 Promptly after the execution of this Agreement, Amazon.com and Company will (a) prepare and distribute a press release announcing the transaction, and (b) [*]. If mutually agreed, [*]. The contents and timing of the release (or releases) [*], if any, will be mutually agreed by the Parties. Neither Party will [*], make any other disclosures regarding this Agreement or its terms [*] without the other Party's prior written consent.
2.2.2 For a period of [*] following the date of this Agreement, Amazon.com will [*] to Company (as established by the Parties based on their reasonable determination as to [*] and subject to Amazon.com's [*]) to assist Company in the [*] of the [*] contemplated herein and the Company Site.
SECTION 3. OBLIGATIONS OF COMPANY
During the Term, Company will place and maintain [*] of the Company Site such [*] as Amazon.com may [*] to Company, in accordance with and subject to the implementation process outlined in Section 4 and the other terms and conditions of this Agreement. The [*] will include a [*] on the Amazon.com Site as is [*]. The placement and size [*] will be determined by Company [*], subject to the implementation process outlined in Section 4, and will be
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
limited by, among other things, the impact on user experience, availability of space and other business considerations.
SECTION 4. IMPLEMENTATION
4.1 ACCOUNT MANAGERS. Each Party will assign an account manager (which manager shall be subject to change from time to time by the assigning Party upon written notice to the other Party) to facilitate coordination of the Parties' performance of their obligations hereunder (including, without limitation, in the creation and monitoring of the Advertising Placements).
4.2 COOPERATION. During the Term, the Parties will cooperate in good faith and use commercially reasonable efforts to (a) establish and implement procedures and processes for [*] under this Agreement, and (b) [*] in accordance with such procedures and processes and the terms and conditions of this Agreement.
4.3 APPROVAL. [*] placed on a [*] will be subject to such [*] prior to the time the same go live [*]. No such approval will be unreasonably withheld or delayed.
SECTION 5. [*]
5.1 GENERAL. Except as expressly provided for elsewhere in this Agreement, each Party will be responsible for all [*] by such Party in [*] under this Agreement, and the [*] under this Agreement will be provided and undertaken by ...
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