CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
EXHIBIT 10.23
ADFORCE-TM- Service GeoCities Agreement
-------------------------------------------------------------------------------
This service agreement for the AdForce service (the "Agreement") is entered
into between IMGIS, Inc., a California corporation ("IMGIS"), with offices at
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and GEOCITIES, a
California corporation ("GEOCITIES") with offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
1. ADFORCE SERVICE DEFINITION. The AdForce service is an Internet
advertising administration system that will allow GEOCITIES to manage
advertising on its Web site and/or similar on-line service. As part of
the AdForce service, IMGIS will provide GEOCITIES with the AdForce
"client" software application ("Application Software"), with which
GEOCITIES will be able to (a) generate ad tags, (b) schedule advertising
to run in the online environments in which GEOCITIES places those ad
tags and (c) generate reports on such advertising. IMGIS will maintain
an AdForce server complex from which IMGIS will electronically deliver
advertising scheduled by GEOCITIES to the online environments containing
the ad tags placed by GEOCITIES. IMGIS will complete development of, and
will make available to GEOCITIES by August 1, 1998, a "Hybrid Service"
which will allow GEOCITIES to direct Impressions (defined below) to be
delivered from the AdForce server complex ("Central Delivery") or IMGIS
servers located on GEOCITIES' site ("Local Delivery"). As part of the
Hybrid Service, IMGIS will provide GEOCITIES with the client and server
software needed to use the Hybrid Service ("Hybrid Service Software,"
collectively the "Hybrid Service Software" and the "Application Software"
are referred to herein as the "Licensed Software"). The "Hybrid Service"
is part of the AdForce Service as defined in this Section 1 and referred
to in this Agreement. In addition, the Hybrid Service will be capable of
instantaneously providing Local Delivery of ads to all ad tags in the
event that the AdForce server complex becomes disabled, inoperative, or
otherwise inaccessible to GEOCITIES. GEOCITIES recognizes that certain
functions available as part of the Central Delivery service will not be
available in the Local Delivery service. IMGIS acknowledges and agrees
that its failure to make the Hybrid Service available to GEOCITIES by
August 1, 1998 will significantly reduce the benefits GEOCITIES' expects
to receive under this Agreement. Because it would be impracticable and
extremely difficult to determine the exact amount of GEOCITIES' damages
in such event, IMGIS and GEOCITIES agree that, as compensation to
GEOCITIES for any such loss of the benefit of its bargain hereunder,
rather than as a penalty to IMGIS, the fees of the AdForce service
(Local Delivery and Central Delivery) set forth in Schedule A shall be
reduced [*] for each day, up to a maximum of [*] days or [*] total
reduction, after August 1, 1998 that IMGIS fails to make available to
GEOCITIES the Hybrid Service in the form described in this Section 1.
Fees will return to the amounts specified in Schedule A as soon as
the Hybrid Service is made available to GEOCITIES. Additionally,
if IMGIS fails to make the Hybrid Service available by September 1,
1998, GEOCITIES may terminate this Agreement and GEOCITIES shall be
entitled to recover from IMGIS all damages that GEOCITIES incurs, due
to such failure, provided that IMGIS' liability for such damages shall
not exceed the amount in aggregate paid by GEOCITIES for the AdForce
service during the thirty (30) days of prior to termination. The
foregoing reduction AdForce Service fees and early termination
privilege shall be GEOCITIES' sole remedy for failure by IMGIS to make
the Hybrid Service available by August 1, 1998 and September 1, 1998,
respectively. The delivery of "Impressions," defined as the transmission
of advertisements from the AdForce server complex or an IMGIS server
located on GEOCITIES' site to an AdForce ad tag, will be verified by
monthly third-party audits of the AdForce service, conducted by the
Audit Bureau of Verification Services, Inc. or another independent third
party chosen by IMGIS. This audit is included in all levels of the
AdForce service and, upon completion of an audit, IMGIS will provide
GEOCITIES with the results of the audit. Central Delivery includes
targeting features as listed in Exhibit B. Central Delivery includes the
capability of generating a suite of standard reports listed in Exhibit
B, but do not include custom reports that may be requested by GEOCITIES.
Local Delivery service includes targeting features as listed in Exhibit
D. Local Delivery service includes the capability of generating a suite
of standard reports listed in Exhibit D, but do not include custom
reports that may be requested by GEOCITIES. New features of the AdForce
service will, at the sole discretion of IMGIS, either be incorporated
into the then-current level of the AdForce service provided to GEOCITIES
hereunder, or will be offered to GEOCITIES as an additional service
subject to additional fees. IMGIS will notify GEOCITIES of new AdForce
service features. IMGIS will implement and make available to GEOCITIES,
within one hundred eighty (180) days following the Effective Date, the
AdForce+ service. AdForce+ will enable GEOCITIES to target advertising
to specific end users based upon end-user demographic characteristics,
as further described in Exhibit C, which is incorporated herein by this
reference. The terms and conditions of the AdForce+ service will be set
forth in a separate written agreement to be entered into by the parties.
2. LEVEL OF ADFORCE SERVICE. IMGIS will provide the functionality for the
AdForce service as described in section 1 and Exhibits B and C, as well
as live telephone customer support from the hours of 6am to 6pm Pacific
Time, Monday-Friday, excluding major holidays and 7-day-a-week,
24-hour-a-day access to IMGIS technical support via pager.
2.1 LEVELS OF MAINTENANCE AND SUPPORT. IMGIS will exercise its
reasonable efforts, but not less than the level of effort that
IMGIS uses for other customers receiving the AdForce Service
without payments of additional consideration specifically for
purposes of such maintenance and support, to correct errors in the
Application Software, other software used to operate the AdForce
server complex or the IMGIS servers located on GEOCITIES' site or
hardware provided or used by IMGIS to provide the Adforce service,
at the following Response Times: (i) Support Call (Level 1);
response time 15 minutes, patch or work-around next day, fixed or
documented in next major product release; (ii) Support Call (Level
2) response time six (6) hours, patch or work-around within five
days, fixed or documented in next major product release; (iii)
Support Call (Level 3); one (1)
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
Page 1 of 9
ADFORCE-TM- Service GeoCities Agreement
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business day, problem documented and input for consideration in
next major product release. For purposes of this Agreement,
"RESPONSE TIME" means the elapsed time between the receipt of a
service call and the time when IMGIS begins work on a fix or
workaround for the error.
2.2 SERVICE LEVEL WARRANTY.
(i) INABILITY TO ACCESS THE ADFORCE SERVICE (DOWNTIME). In the
event (i) of a material failure of the AdForce service (either
Local Delivery or Central Delivery) to deliver images to ad
requests within the GEOCITIES Website for more than thirty
(30) consecutive minutes in a calendar month or (ii) the
elapsed time from receipt of an ad request to delivery of an
image by the AdForce service (via either Local Delivery or
Central Delivery) in response to such ad request is greater
than twenty (20) seconds, taken as an average over any two (2)
consecutive hour period, (a "Failure") and GEOCITIES notifies
IMGIS of such Failure and IMGIS determines in its reasonable
judgment that such Failure was caused by IMGIS' inability to
provide the AdForce service for reasons within IMGIS'
reasonable control and not as a result of any actions or
inactions of GEOCITIES or any third parties (including
GEOCITIES' equipment and third party equipment), IMGIS will
not charge GEOCITIES, and GEOCITIES shall have no obligation
to pay any AdForce service fees during the twenty-four (24)
hour period immediately following resumption of the AdForce
service. Notwithstanding the foregoing, the occurrence of a
Failure over a twenty-four (24) hour period for (a) five (5) or
more consecutive days or (b) eight (8) days during any thirty
(30) day period shall be deemed a material breach of this
Agreement and, in such event, GEOCITIES may terminate this
Agreement pursuant to Section 9 below. Notwithstanding the
foregoing, if IMGIS provides GEOCITIES with not less than thirty
(30) days notice of a proposed cessation of the AdForce service
for the purpose of making specified improvements thereto (a
"Cessation") and GEOCITIES consents in writing to such proposed
Cessation, then such Cessation shall not be deemed to constitute
a Failure, provided that (1) the Cessation does not exceed two
(2) hours in duration and (2) no more than one (1) Cessation
occurs in any sixty (60) day period.
(ii) DEGRADATION OF CENTRAL DELIVERY: In the event that the elapsed
time from initial access of the AdForce server complex to
accurate selection of an advertisement for Central Delivery
("Access Time") is greater than one (1) second, taken as an
average over any two (2) consecutive day period ("Degraded
Service"), then IMGIS shall not charge GEOCITIES, and
GEOCITIES shall have no obligation to pay, any AdForce service
fees for such two (2) day period. Access Time shall be
monitored by a designated IMGIS server configured to model the
AdForce Service's access and transmission of advertisements to
IMGIS' Internet service provider ("Designated Server"). The
results of such monitoring shall be provided to GEOCITIES as
part of the AdForce reporting service. Additionally, if the
elapsed time from initial access of the AdForce server complex
to accurate selection of an advertisement for Central Delivery
is greater then two (2) seconds, taken as an average over any
two (2) consecutive hour period ("Degraded Service"), IMGIS
shall not charge GEOCITIES, and GEOCITIES shall have no
obligation to pay, any Adforce service fees for a period of
six (6) consecutive hours beginning with such two (2) hour
period. If the elapsed time from the accurate selection of an
advertisement, based upon a test 10 kilobyte advertisement,
from the AdForce server complex to the Designated Server is
greater then two (2) seconds, taken as an average over a two
(2) consecutive hour period ("Degraded Service"), IMGIS shall
not charge GEOCITIES, and GEOCITIES shall have no obligation to
pay, any AdForce service fees for a period of six (6)
consecutive hours beginning with such two (2) hour period.
Notwithstanding the foregoing, the occurrence of Degraded
Service over a twenty-four (24) hour period for (a) seven (7)
or more consecutive days or (b) ten (10) days during any
thirty (30) day period shall be deemed a material breach of
this Agreement and, in such event, GEOCITIES may terminate
this Agreement pursuant to Section 9 below.
(iii) TIME TO DISCOVER FAILURE OF ADFORCE SERVICES; NOTIFICATION OF
GEOCITIES. Within one (1) hour of discovering the existence of
a Failure of the AdForce service, IMGIS will use reasonable
efforts to determine whether the source of the Failure is
limited to GEOCITIES' equipment ("GEOCITIES Specific
Failure"). If the failure is not a GEOCITIES Specific Failure,
IMGIS will use reasonable efforts to determine the source of
the failure within two (2) hours after determining that it is
not a GEOCITIES Specific Failure. In any event, IMGIS will use
reasonable efforts to notify GEOCITIES of the source of the
Failure within thirty (30) minutes after first identifying
the source.
(iv) RESOLUTION OF FAILURE. IMGIS will use reasonable efforts to
remedy GEOCITIES Specific Failures within two (2) hours of
determining the source of the GEOCITIES Specific Failure
provided that GEOCITIES provides reasonable cooperation and
access to equipment and software located on GEOCITIES site.
IMGIS will use reasonable efforts to remedy failures caused
within the IMGIS server complex or the IMGIS servers on
GEOCITIES' site or other IMGIS hardware or software ("IMGIS
Specific Failure") within one (1) hour of determining the
source of the failure provided that GEOCITIES provides
reasonable cooperation and access to equipment and software
located on GEOCITIES site. IMGIS will use reasonable efforts
to notify GEOCITIES if the Failure is caused by other than an
IMGIS Specific Failure
Page 2 of 9
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-------------------------------------------------------------------------------
and IMGIS will use commercially reasonable efforts to notify
the party(ies) responsible for the source of the Failure and
will cooperate with it (them) to resolve the Failure as soon
as possible.
(v) FAILURE TO DETERMINE SOURCE AND/OR RESOLVE FAILURE: IMGIS will
credit GEOCITIES' account for every one (1) hour after the
time periods described above that it takes IMGIS to provide a
remedy for an IMGIS Specific Failure. The amount of credit
shall be the aggregate average AdForce service fee incurred by
GEOCITIES per day during the preceding month.
3. OBLIGATIONS OF GEOCITIES. GEOCITIES agrees to implement the ad tags as
described in the AdForce User Guide and Help documentation provided to
GEOCITIES. GEOCITIES also agrees to schedule all advertising for
GEOCITIES' Web sites or on-line properties using the IMGIS-provided
"Application Software." If Geocities chooses to have IMGIS execute
insertion and change orders on behalf of GEOCITIES, GEOCITIES agrees to
supply IMGIS with the information necessary to schedule GEOCITIES' ▇▇
▇▇▇▇▇▇▇▇▇ at least [*] in advance of campaign initiation or
modification. Should the average file size of GEOCITIES' Central
Delivery advertisements exceed [*], as determined by IMGIS on
a monthly basis, GEOCITIES agrees to pay the incremental fee listed in
Exhibit A to compensate for higher bandwidth costs. GEOCITIES agrees to
provide IMGIS with non-binding, [*] volume forecasts of the number
of Impressions anticipated by GEOCITIES to be delivered using the
AdForce service on a rolling monthly basis. GEOCITIES agrees to provide
IMGIS with reasonable access to GEOCITIES' facilities for purposes of
implementing and supporting the Hybrid Service. GEOCITIES shall not
export or re-export, or allow the export or re-export of the Licensed
Software, without complying with all applicable export laws,
restrictions, national security controls and regulations of the United
States and all applicable foreign agencies and authorities.
4. OWNERSHIP/LIMITATIONS ON USE. Subject to the terms and conditions of
this Agreement, IMGIS hereby grants to GEOCITIES, contingent on timely
payment of monies due to IMGIS hereunder, a non-exclusive,
non-transferable (except as expressly permitted under section 10)
license for the term of this Agreement to use the Licensed Software in
connection with the AdForce service. IMGIS shall have the sole and
exclusive ownership of all right, title and interest in and to the
Licensed Software and the AdForce service, any enhancements thereto and
in any materials and data provided to GEOCITIES by IMGIS. GEOCITIES may
not sublicense the AdForce service. GEOCITIES may not copy (other than
copying into RAM), modify, alter, sell, distribute or sublicense the
Licensed Software or reverse assemble, reverse compile or otherwise
attempt by any other method to create or derive the source programs of
the AdForce service or the Licensed Software, nor authorize or contract
with third parties to do the same. During the course of providing the
AdForce Service, IMGIS will collect and maintain general statistical
information, including but not limited to information pertaining to the
number of advertisements delivered, response times, user's IP address,
cookie, browser type and operating system, as well as the time, date and
ad tag of a request, but excluding information revealing the identity
of individual users, individual credit card, debit card, bank account,
electronic currency or similar information and other transaction or user
specific data ("User Information"). IMGIS may include User Information
in IMGIS' logs and databases and use such User Information, as
aggregated with other data and information collected by IMGIS and
maintained in such logs or databases, for its internal business purposes
only. IMGIS will provide GEOCITIES with raw data of the User
Information, upon GEOCITIES' request, and will provide GEOCITIES with
reports, included with GEOCITIES' selected level of service, of the User
Information. Notwithstanding anything to the contrary contained
elsewhere in this Agreement, IMGIS agrees that it shall not, either
during the term of this Agreement, or thereafter; disclose to third
parties or otherwise disseminate, publish, reproduce, or use or permit
the dissemination, publication, reproduction or use of any of the User
Information in a manner that is in any respect inconsistent with the
terms and conditions pursuant to which GEOCITIES obtained the User
Information, as such terms and conditions may be set forth in GEOCITIES'
privacy statement (as it exists from time to time) or elsewhere.
5. CONFIDENTIALITY. It is agreed that all GEOCITIES' passwords used in
connection with AdForce user guides, the Licensed Software, and the
AdForce "help" documentation, whether on-line or in printed form, are
the confidential information of IMGIS. It is also agreed that any
account information relating to GEOCITIES' business, customers,
products, technology and information and data input into the AdForce
service by GEOCITIES, including, without limitation, advertiser contact
and billing information, and any and all confidential or proprietary
information disclosed to or learned by IMGIS while IMGIS employees or
implementation of the Hybrid Service is confidential information of
GEOCITIES. Each party shall not use, disclose or reproduce any
confidential information of the other party without the consent of the
party providing said information, except for any information, data or
material which: (a) at the time of disclosure to the receiving party was
known or is in the possession of the receiving party without
restriction; (b) is independently developed by the receiving party; (c)
is generally available to the public without any breach of this Agreement
by the receiving party. GEOCITIES acknowledges and agrees that
disclosure of the terms of this Agreement to anyone outside of GEOCITIES
(except attorneys and accountants of GEOCITIES) may create substantial
business damage to IMGIS and hereby agrees to keep the terms of this
Agreement strictly confidential.
6. INDEMNIFICATION. (a) Subject to subsection (b), GEOCITIES shall defend,
indemnify and hold harmless IMGIS from any and all third party claims
and liability and damages and costs (including reasonable court costs
and attorney's fees) arising out of or relating to advertising placed by
GEOCITIES using the AdForce service; including, without limitation,
libel, invasion of privacy, and rights of publicity claims arising from
the content of such advertising, provided that: (i) IMGIS promptly
notifies GEOCITIES of such claims;
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
Page 3 of 9
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(ii) GEOCITIES has sole control of the defense and settlement of such
claims and is not responsible for any settlement that it does not
approve in writing; and (iii) IMGIS renders all reasonable assistance
required at GEOCITIES' expense; (b) IMGIS shall defend, indemnify and
hold harmless GEOCITIES from any and all third party claims and
liabilities and damages and costs (including reasonable court costs and
attorneys fees) for infringement of third party intellectual property
rights arising out of or relating to GEOCITIES' use of the Licensed
Software and/or the AdForce service pursuant to this Agreement, provided
that: (i) GEOCITIES promptly notifies IMGIS of such claims; (ii) IMGIS
has sole control of the defense and settlement of such claims and is not
responsible for any settlement that it does not approve in writing; and
(iii) GEOCITIES renders all reasonable assistance required at IMGIS'
expenses. If an injunction is entered against GEOCITIES' use of the
Licensed Software or the AdForce service or GEOCITIES' use of the
Licensed Software or the AdForce service is likely to be enjoined,
IMGIS will, at its opinion and sole expense, (A) obtain a license
permitting such use, (B) modify the Licensed Software or the AdForce
service to avoid the infringement but maintaining equivalent
performance, functionality and compatability, or (C) if it cannot
reasonably do either of the foregoing, terminate GEOCITIES' licensing to
the Licensed Software and promptly refund fees paid by GEOCITIES for the
last thirty days of service, but not to exceed that cost in aggregate
incurred by GEOCITIES in obtaining replacement ad delivery services from
another provider.
7. WARRANTY. GEOCITIES warrants that GEOCITIES is free to enter into this
Agreement and that this Agreement constitutes the valid and binding
obligation of GEOCITIES, enforceable in accordance with its terms. IMGIS
represents and warrants that IMGIS is free to enter into and perform
this Agreement and, except for events beyond IMGIS' control including
but not limited to Internet access outages and other events of force
majeure; (a) the AdForce service (excluding components of the GEOCITIES
network and third party hardware and software profiled by IMGIS) will
materially conform to the functionality described in section 1 except to
the extent that the performance of the AdForce service is materially
affected by components of the GEOCITIES network and third party
hardware and software not provided to IMGIS; (b) IMGIS either owns, has,
or will otherwise acquire the right (and will, during the term hereof
maintain such right) to use all hardware and software components of the
AdForce service and the Licensed Software and will not infringe on any
right or interest (intellectual property or otherwise) or any third party.
EXCEPT AS SPECIFIED IN THIS SECTION 7, IMGIS HEREBY DISCLAIMS ALL
WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY AND
ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT, IN CONNECTION WITH THIS AGREEMENT.
8. LIABILITY. NEITHER PARTY WILL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL,
SPECIAL OR EXEMPLARY DAMAGES, EVEN IF IT HAS BEEN WARNED OF THE
POSSIBILITY OF SUCH DAMAGES.
9. TERMINATION. GEOCITIES shall select the term and level of service for
this Agreement in Section 12. Either party may terminate the Agreement
if the other party fails to perform any of its obligations in any
material respect, and such failure continues uncured for a period of
thirty (30) days (except in the event of a breach of section 5, in which
case termination shall be effective immediately) after receipt by the
breaching party of written notice from the non-breaching party
specifying such default. Either party may terminate this Agreement in
the event that the other party ceases to do business, undergoes a
bankruptcy or insolvency proceeding, or an assignment for the benefit of
creditors. Upon the expiration or termination of the Agreement for any
reason, the parties will immediately return all Confidential Information
of the other party in their possession. All accrued payment obligations
of GEOCITIES shall survive expiration or termination of the Agreement,
as shall the parties' rights and obligations under Section 4 through 9,
as well as sections 11 through 13.
10. ASSIGNMENT. This Agreement is not assignable or transferable by either
party without prior written consent of the other party, except that a
party may assign the Agreement (a) by operation of law or (b) to any
entity acquiring all or substantially all of assignor's assets, stock or
business without the other party's consent.
11. PAYMENT TERMS. GEOCITIES shall pay to IMGIS the dollar amounts determined
from the pricing schedule set forth in Exhibit A, within [*]
days from date of GEOCITIES' receipt of invoice. All payments to IMGIS
shall be remitted in U.S. Dollars. Fees for the AdForce service are
subject to change at the expiration of the initial term and upon
renewal of this Agreement. IMGIS shall provide GEOCITIES, not less than
ninety (90) days prior to expiration of the initial term or any renewal
term, written notice of any change in the fees for the AdForce service.
12. TERM. The term shall commence on the Effective Date indicated below and
shall continue for a period of two (2) years, except that GEOCITIES may
terminate the Agreement with or without cause during the thirty (30) day
period following the first anniversary of the Effective Date upon
receipt by IMGIS of written notice of GEOCITIES' intent to terminate. In
addition, if: (i) IMGIS fails within thirty (30) days following the
Effective Date to enter into a written agreement with America Online,
Inc. ("AOL") pursuant to which IMGIS receives demographic data pertaining
to AOL's current end users or (ii) IMGIS fails to make AdForce+ available
to GEOCITIES within one hundred eighty (180) days following the
Effective Date, GEOCITIES, any as its sole remedy, elect to
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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terminate this Agreement upon written notice to IMGIS. GEOCITIES agrees
to pay IMGIS for all Impressions delivered through the AdForce service,
according to the pricing schedule in Exhibit A, subject to change upon
renewal of this Agreement.
13 GENERAL. This agreement is the complete and exclusive statement of the
mutual understanding of the parties and supersedes and cancels all
previous written and oral agreements and communications relating to the
subject matter of this Agreement. No failure or delay in exercising any
right hereunder will operate as a waiver thereof, nor will any partial
exercise of any right or power hereunder preclude further exercise. Any
waivers or amendments shall be effective only if made in writing. All
notices shall be in writing and effective upon receipt when personally
delivered, delivered by a major commercial rapid delivery courier
service or mailed by certified or registered mail (postage prepaid, return
receipt requested) to a party at its address set forth above or amended
by notice. If not received sooner, notice by mail shall be deemed
received five (5) days' after deposit in the U.S. mails. If any
provision of this Agreement shall be adjudged by any court of competent
jurisdiction to be unenforceable or invalid, that provision shall be
limited or eliminated to the minimum extent necessary so that this
Agreement shall otherwise remain in full force and effect and
enforceable. This Agreement shall be governed by the law of the State of
California without regard to the conflicts of law provisions thereof.
The prevailing party in any action to enforce this Agreement will be
entitled to recover its attorney's fees and costs in connection with
such action. Nothing contained herein shall be construed as
establishing a partnership, joint venture, employment or other business
relationship between the parties hereto other than that of independent
contractors. This Agreement may be executed in counterparts.
IN WITNESS WHEREOF the parties have executed this Agreement as of: 5/4/98
(Effective Date). -------------
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Accepted: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------ --------------------------
Print Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------ --------------------------
Title CFO/CAO Title EVP/Founder
------------------------ --------------------------
GEOCITIES: (GEOCITIES) IMGIS, Inc. (IMGIS)
-------------- -------------------
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SCHEDULE A
FEES
Following IMGIS' release and GEOCITIES' acceptance of the Hybrid Service,
pricing for the AdForce service will be as shown below:
Local Delivery Central Delivery
-------------------- -------------------------
[*] [*]
- There will be [*] for ads served locally until IMGIS makes the
Hybrid Service available to GEOCITIES, anticipated to occur by August 1,
1998. Prior to IMGIS' release and GEOCITIES' acceptance of the Hybrid
Service, pricing of the AdForce service prior to July 1, 1998 will be [*]
for Central Delivery and [*] CPM for Central Delivery during the
period commencing on July 1, 1998 and ending on August 1, 1998. GEOCITIES
agrees to continue to operate the StarPoint servers under the terms of the
Agreement between StarPoint and GEOCITIES dated 5/4/99 until the Hybrid
Service is available, including, but not limited to, paying monthly support
costs when due.
- AdForce+ pricing and fees for processing and using GEOCITIES data for
targeted advertising will be covered in a separate Data Agreement.
- Incremental fee for Centrally Delivered ads only, of [*] for every
[*] increase in average file size above an average of [*]
- If GEOCITIES elects to have IMGIS manually insert of modify campaigns,
GEOCITIES will pay IMGIS [*] for each insertion or modification.
IN THE EVENT OF A MATERIAL FAILURE OF LOCAL DELIVERY SERVICE CAUSED BY A
FAILURE WITHIN THE DIRECT CONTROL OF IMGIS, THE FEE FOR LOCAL DELIVERY
SERVICE SHALL APPLY, UNTIL LOCAL DELIVERY AGAIN BECOMES AVAILABLE TO
GEOCITIES, TO THE PERCENTAGE OF ADS SERVED BY CENTRAL DELIVERY BASED UPON THE
AVERAGE PERCENTAGE OF ADS SERVED BY THE LOCAL DELIVERY SERVICE DURING THE
IMMEDIATELY PRECEDING TWENTY-FOUR (24) HOUR PERIOD.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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EXHIBIT B
ADFORCE TARGETING
Adforce Central Delivery service includes targeting on the following
parameters, when AdForce databases allow the parameter to be resolved:
BROWSER TYPE--Different campaigns can be delivered to visitors with different
browsers.
OPERATING SYSTEM--Different campaigns can be delivered to visitors with
different operating systems
DOMAIN TYPE--Different campaigns can be delivered to visitors from different
domains (i.e. .com or .edu)
SERVICE PROVIDER--Different campaigns can be delivered to visitors with
different Internet service providers.
TELEPHONE AREA CODE--Different campaigns can be delivered to visitors in
different area codes.
SIC CODE--Different campaigns can be delivered to visitors working for
companies with different SIC codes.
COUNTRY--Different campaigns can be delivered to visitors from different
countries.
FREQUENCY--An advertisement can be shown no more than a specified number of
times to each visitor.
SEQUENCE--A series of advertisements can be shown in sequence to a visitor.
KEYWORDS--Advertisements can be targeted on the basis of a word or phrase
typed by a visitor.
SITE DATA--Ads can be targeted on the basis of data in a site's database
(i.e. with registered users)
DATE/DATE/TIME OF DAY--Ads can be scheduled to run during specific times and
on specific days.
CONTENT AREA--Ads can be targeted to a specific area of a site.
(AREA CODE DERIVED) DMA--Ads can be targeted to a specific DMA (Area Code
Derived). (Feature will be available in AdForce Version 3.0)
There may be additional charges for additional targeting parameters added in
the future, as well as for customization of the targeting algorithms for
keywords and site data.
ADFORCE REPORTING
The following reports are currently available with the AdForce Central
Delivery service:
NETWORK REPORTS WEBSITE REPORTS ADVERTISER REPORTS
----------------------------------------------------------------------------------------------------------
Daily Campaign Details Activity by Advertiser Campaign On-line Summary
Daily Campaign Summary Activity by Area Code Summary by Area Code
Monthly Billing Report Activity by Browser Summary by Banner
Summary by Advertiser Activity by Content Unit Summary by Browser
Summary by Area Code Activity by Country Summary by Category
Summary by Browser Activity by Date Summary by Country
Summary by Category Activity by Domain Summary by Date
Summary by Country Activity by Keyword Summary by Domain
Summary by Date Activity by Hour Summary by Hour
Summary by Domain Activity by Operating System Summary by Operating System
Summary by Hour Activity by Pay Type Summary by Service Provider
Summary by Operating System Activity by Service Provider Summary by SIC Code
Summary by Payment Type Activity by Summary by Website
SIC Code
Summary by Service Provider Website Revenue Campaign Summary
Summary by SIC Code Activity by DMA Monthly Billing Report
Summary by Website Summary by DMA
Summary by DMA
Website Revenue
There will be additional charges for reports customized or designed to
GEOCITIES' specifications. There may also be additional charges for reports
added in the future.
Page 7 of 9
ADFORCE-TM- Service GeoCities Agreement
-------------------------------------------------------------------------------
EXHIBIT C
ADFORCE+
AdForce+ is IMGIS' proprietary database targeting service, designed to
provide one-to-one addressable on-line advertising. IMGIS has secured
multi-year, exclusive data agreements with both Marketing Information
Technologies, a leader in targeted print advertising, and Metromail, a $400
million, consumer demographic data compiler. These relationships position
IMGIS to exclusively leverage the unique, one-to-one marketing capabilities
of the Internet. Traditional consumer databases alone, however, do not
provide the key to unlock the demographic information on the Internet because
there is no mapping from terrestrial world data to the Internet. AdForce+
provides this map by linking on-line registration files and ISP login
information to IMGIS' 3rd party demographic databases.
Page 8 of 9
ADFORCE-TM- Service GeoCities Agreement
-------------------------------------------------------------------------------
EXHIBIT D
ADFORCE TARGETING
AdForce Local Delivery service include targeting on the following parameters,
when AdForce databases allow the parameter to be resolved:
BROWSER TYPE--Different campaigns can be delivered to visitors with different
browsers.
OPERATING SYSTEM--Different campaigns can be delivered to visitors with
different operating systems.
DOMAIN TYPE--Different campaigns can be delivered to visitors from different
domains (i.e. .com or .edu)
COUNTRY--Different campaigns can be delivered to visitors from different
countries.
DATE/DATE/TIME OF DAY--Ads can be scheduled to run during specific times and
on specific days.
CONTENT AREA--Ads can be targeted to a specific area of a site.
There may be additional charges for additional targeting parameters added in
the future, as well as for customization of the targeting algorithms for
keywords and site data.
ADFORCE REPORTING
The following reports are currently available with the AdForce Local
Delivery service:
NETWORK REPORTS WEBSITE REPORTS ADVERTISER REPORTS
----------------------------------------------------------------------------------------------------------
Daily Campaign Details Activity by Advertiser Campaign On-line Summary
Daily Campaign Summary Activity by Browser Summary by Banner
Monthly Billing Report Activity by Content Unit Summary by Browser
Summary by Advertiser Activity by Country Summary by Category
Summary by Browser Activity by Date Summary by Country
Summary by Category Activity by Domain Summary by Date
Summary by Country Activity by Hour Summary by Domain
Summary by Date Activity by Operating System Summary by Hour
Summary by Domain Activity by Pay Type Summary by Operating System
Summary by Hour Website Revenue Summary by Website
Summary by Operating System Campaign Summary
Summary by Payment Type Monthly Billing Report
Summary by Website
Website Revenue
There will be additional charges for reports customized or designed to
GEOCITIES' specifications. There may also be additional charges for reports
added in the future.
Page 9 of 9
ADFORCE-TM- Service GeoCities Agreement
-------------------------------------------------------------------------------
Schedule A Amendment
Fees
This Amendment for the AdForce service (the "Agreement") is entered into
between AdForce, Inc., a California corporation ("ADFORCE"), with offices at
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and GeoCities,
("GeoCities") with offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇.
----------------------------------------------------------------
Cost for Ad Delivery LEVEL OF SERVICE
----------------------------------------------------------------
[*] for Ad Delivery / / AdForce Basic
--------
(Initial)
[*] for Ad Container
Delivery*
----------------------------------------------------------------
* Ad Container delivery not to exceed 50% of overall ads delivered during a
month.
- AdForce pricing and fees for processing and delivering targeted advertising
will be covered in a separate agreement.
- If GeoCities instructs AdForce to manually insert or modify campaigns,
GeoCities will pay AdForce [*] for each insertion or modification.
This Amendment shall cover the period beginning August 1, 1998. GeoCities
agrees to pay ADFORCE, Inc. for all impressions delivered through the
AdForce service, according to the pricing schedule in the Schedule A
Amendment, subject to change upon renewal of the Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of 10/9/98
(Effective Date). --------
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Accepted: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------ --------------------------
Print Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------ --------------------------
Title: Chief Financial Officer Title: Director, Sales and
Marketing Strategy
------------------------ --------------------------
Company: Company: GeoCities
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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