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Extension No.2 To Yahoo! Remote Merchant Integration (rmi) Agreement

This is an actual contract between Provide Commerce and Yahoo!.

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Sectors: Services, Computer+Software+and+Services, Media
Governing Law: California , View California State Laws
Effective Date: September 17, 2002
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CONFIDENTIAL EXECUTION


Exhibit 10.27


EXTENSION NO. 2 TO YAHOO! REMOTE MERCHANT INTEGRATION (RMI) AGREEMENT


THIS EXTENSION NO. 2 (this "Second Extension") is entered into as of September 17, 2002 (the "Second Extension Effective Date") by and between Yahoo! Inc. ("Yahoo!"), a Delaware corporation, and Proflowers, Inc. ("Merchant"), a Delaware corporation, and amends the Yahoo! Remote Merchant Integration (RMI) Agreement between Yahoo! and Merchant entered into as of August 23, 2000 (the "Agreement"), as amended by Extension No. 1 between Yahoo! and Merchant entered into as of December 19, 2001 (the "First Extension").


For good and valuable consideration, the receipt of which is hereby acknowledged, Yahoo! and Merchant amend the Agreement as follows:

1. Definitions . Capitalized terms not defined herein have the meanings set forth in the Agreement.

2. Term .

2.1 Effective as of September 17, 2002, the first sentence of Section 11 of the Agreement, as amended by the First Extension, is deleted in its entirety and replaced with the following:


"This Agreement will become effective as of the Effective Date and will, unless sooner terminated as provided herein or as otherwise agreed, remain effective at least until September 16, 2003 (the "Initial Term")." 3. Payments .

3.1 Effective as of September 17, 2002, the table in Section 10 of the Agreement, as amended by the First Extension, is deleted in its entirety and replaced with the following:


NUMBER OF SERVICE ORDERS [*] SERVICE ORDER

[*] [*]

3.2 Merchant acknowledges [*]

4. Service Orders, and Yahoo! Wallet . Effective as of September 17, 2002, the following two sub-sections shall be added to Section 5 of the Agreement: * Material has been omitted pursuant to a request for confidential treatment.


"(c) Unique Tracking URL Service Orders . In addition to Service Orders defined in Section 10, Service Orders shall also include [*] Yahoo! Search and Directory in direct response to a user's search on the keywords, [*] during the Term, which [*] Yahoo! Search and Directory means Yahoo!'s principal, U.S.-targeted directory to the World

1

CONFIDENTIAL EXECUTION


Wide Web, which is comprised of (a) a search functionality that currently resolves either to search.Yahoo.com or to google.Yahoo.com; and (b) a browse tree that currently resolves to dir.Yahoo.com.


(d) Yahoo! Wallet . Merchant will present users on the Merchant Pages with the opportunity to use or register for Yahoo! Wallet (Yahoo!'s U.S. targeted personal wallet property, which is currently located at http://wallet.Yahoo.com and enables users to store personal information and preferences for the purpose of conducting transactions on an Internet Site) by presenting users with the opportunity to use and register for Yahoo! Wallet as part of the check-out process on the Merchant Pages. Yahoo! Wallet will be presented in a manner as least as prominent as any other third party express check-out process. [*] All methods and requirements for implementing Yahoo! Wallet technology that directly affect the Merchant Pages or the Merchant Site, including but not limited to those that in any way impact the performance of the Merchant Pages or the Merchant Site, and any use of Merchant's user and/or order data, will be mutually agreed upon. Such approval will not be unreasonably withheld."

5. Effect of Amendment . Except as amended by this Second Extension, the Agreement, as amended by the First Extension, will remain in full force and effect in accordance with its terms. In the event of any conflict between the terms of the Agreement, as amended by the First Extension, and the terms of this Second Extension, the terms of this Second Extension shall govern and control. 6. Counterparts . This Second Extension may be executed in any number of counterparts, each which will be deemed an original, and all of which together shall constitute one instrument.


[signature page follows] * Material has been omitted pursuant to a request for confidential treatment.


2

CONFIDENTIAL EXECUTION


This Second Extension has been executed by the duly authorized representatives of the parties as of the Second Extension Effective Date.


YAHOO! INC.

By:

/s/ William Rowley

Name:

William Rowley

Title:

Director, Bus. Dev.

Date:

9/30/02

PROFLOWERS, INC.

By:

/s/ Mark S. Irace

Name:

Mark S. Irace

Title:

VP Marketing

Date:

9/19/02


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Standard Terms and Conditions for Yahoo! Advertising Insertion Order No. [*]

The following terms and conditions (the "Standard Terms") shall be deemed to be incorporated into the attached insertion order (the "Insertion Order"):


1. Terms of Payment. Advertiser must submit completed credit application to determine terms of payment. If no credit application is submitted or the request for credit is denied by Yahoo! Inc. ("Yahoo") in its sole discretion, the Insertion Order must be paid in advance of the advertisement start date. Major credit cards (VISA, M/C and American Express) are accepted. If Yahoo approves credit, Advertiser will be invoiced on the first day of the contract period set forth on the Insertion Order and payment shall be made to Yahoo within [*] from the date of invoice ("Due Date"). Amounts paid after the Due Date shall bear interest at the rate of [*] per month (or the highest rate permitted by law, if less). In the event Advertiser fails to make timely payment, Advertiser will be responsible for all reasonable expenses (including attorneys' fees) incurred by Yahoo in collecting such amounts. Yahoo reserves the right to suspend performance of its obligations hereunder (or under any other agreement with Advertiser) in the event Advertiser fails to make timely payment hereunder or under any other agreement with Yahoo.

2. Positioning. Except as otherwise provided in the Insertion Order or these Standard Terms, positioning of advertisements within the Yahoo properties or on any page is at the sole discretion of Yahoo (subject to the remedies set forth in Section 6). Yahoo may, at its reasonable discretion, remove from the Insertion Order (and substitute with similar inventory) any keyword or category page that it believes to be a trademark, trade name, company name, product name or brand name belonging to or claimed by a third party.

3. Usage Statistics. Unless specified in the Insertion Order or these Standard Terms and except for the remedies set forth in Section 6, Yahoo makes no guarantees with respect to usage statistics or levels of impressions for any advertisement. Advertiser acknowledges that delivery statistics provided by Yahoo are the official, definitive measurements of Yahoo's performance on any delivery obligations provided in the Insertion Order. The processes and technology used to generate such statistics have been certified and audited by an independent agency. No other measurements or usage statistics (including those of Advertiser or a third party ad server) shall be accepted by Yahoo or have bearing on the Insertion Order.


4. Renewal. Except as expressly set forth in the Insertion Order, any renewal of the Insertion Order and acceptance of any additional advertising order shall be at Yahoo's sole discretion. Pricing for any renewal period is subject to change by Yahoo from time to time.


5. No Assignment or Resale of Ad Space. Advertiser may not resell, assign or transfer any of its rights hereunder without prior written consent from Yahoo, and any attempt to resell, assign or transfer such rights shall result in immediate termination of this contract, without liability to Yahoo. Notwithstanding the previous sentence and subject to the following sentences of this Section 5, either party (the "Assigning Party") may assign or transfer any of its rights, in whole or in part (whether by operation of law or otherwise), without the prior written consent of the other party (the "Non-Assigning Party") in the event of a merger, sale of substantially all of the stock or assets or other corporate reorganization of the Assigning Party in which more than fifty percent (50%) of the voting securities of the Assigning Party are transferred (each an "Acquisition"), as long as the successor agrees in writing to be bound by the terms of the Standard Terms and the Insertion Order. Advertiser shall provide Yahoo notice of an Acquisition ("Acquisition Notice") no later than the date of the Acquisition. Upon receipt of the Acquisition Notice, Yahoo shall have a right to terminate the Standard Terms and the Insertion Order by notifying successor of its intent to terminate the Standard Terms and the Insertion Order ("Termination Notice") within twenty-five (25) calendar days after Yahoo's receipt of the Acquisition Notice (the "Evaluation Period"), which termination will become effective five (5) calendar days after receipt of the Termination Notice by successor. During the Evaluation Period and, to the extent that Yahoo elects to terminate the Standard Terms and the Insertion Order hereunder, for the period until termination becomes effective, Advertiser will promote within its advertisements only those products and services offered by Advertiser prior to the Acquisition, and those products and services will be branded solely by Advertiser. Additionally, no amounts prepaid by Advertiser under the Standard Terms and the Insertion Order shall be refunded to Advertiser or successor upon termination pursuant to a Termination Notice.


6. Limitation of Liability. In the event (i) Yahoo fails to publish an advertisement in accordance with the schedule provided in the Insertion Order, (ii) Yahoo fails to deliver the number of total page views specified in the Insertion Order (if any) by the end of the specified period (except for any page view levels for Yahoo! Shopping or Yahoo! Marketplace), or (iii) of any other failure, technical or otherwise, of such advertisement to appear as provided in the Insertion Order, the sole liability of Yahoo to Advertiser shall be limited to, at Yahoo's sole reasonable discretion, a

* Material has been omitted pursuant to a request for confidential treatment.

pro rata refund of the advertising fee representing undelivered
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