EXHIBIT 10.11
CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF
THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
BANNER EXCHANGE
SERVICES AGREEMENT
This Banner Exchange Services Agreement ("Agreement") is entered into as of
March 30, 1999 (the "Effective Date") by and between SmartAge Corp., a Delaware
corporation, with principal place of business at 0000 Xxxxxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, XX 00000 ("SmartAge") and xxxxxxxx.xxx, inc., a Delaware corporation,
with principal place of business at 00 Xxxx 00/xx/ Xxxxxx, Xxx Xxxx, XX 00000
("Globe").
RECITALS
SmartAge is a provider of Internet related services to small and growing
companies. Through its SmartClicks' banner exchange service, SmartAge provides a
proprietary technology and a network of participating Web sites from which to
display and distribute ad banners for members. SmartAge desires to establish a
banner exchange service for Globe.
Globe desires to have SmartAge establish a banner exchange service for Globe for
the purposes of offering an additional service to users of its Web site and
receiving a share of Available Impressions (as defined below) generated from the
Globe Network (as defined below).
SmartAge and Globe desire to enter into this Agreement for the specific purposes
of SmartAge providing the banner exchange service to users of Globe's Web site
and Globe marketing and promoting the banner exchange service to the existing
and prospective Globe customers.
1. DEFINITIONS.
1.1 "Account" means a device by which a Globe Member Site accrues credits
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which are then used by a Globe Member in displaying an ad banner within the
SmartClicks' Network. Each such Account contains information that identifies the
Globe Member Site, statistics generated from the Globe Member Site, and the
Globe Member's ad banner.
1.2 "Active Globe Account" means any Account whose associated Globe Member
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Site meets each of the following conditions: 1) it has been approved by
SmartAge; 2) it is enabled to show ad banners using the Banner Exchange
Technology; 3) it has submitted its own ad banner which has been approved by
SmartAge to be shown in the SmartClicks' Network; and 4) it has displayed at
least one ad banner served by the Banner Exchange Technology within the previous
thirty (30) calendar days.
1.3 "Available Impressions" means *** percent (***%) of all Impressions
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derived from the Globe Network.
1.4 "Banner Exchange Technology" means SmartAge's proprietary software,
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which is used to: 1) serve ad banners in the SmartClicks' Network, and 2) give
Globe Members the ability to manage their own Accounts.
1.5 "Banner Exchange Service" means that service provided to Globe Members
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using the Banner Exchange Technology.
1.6 "Co-Branded Page" means any Web page on the SmartAge Site or Globe
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Site which displays the name, brand, logo, trademark, service xxxx or other
identifying xxxx of both parties in manner as mutually agreed and as specified
within this Agreement.
***CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
1.7 "Globe Member" means a third party that registered for the Banner
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Exchange Service via the Globe Site and is approved by the parties to have the
right to display its ad banner throughout the SmartClicks' Network using the
Banner Exchange Technology.
1.8 "Globe Member Site" means each Globe Member's World Wide Web site on
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the Internet and all internally linked sub-pages.
1.9 "Globe Network" means a networked collection of Web sites on the World
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Wide Web comprised of all Globe Members participating in the Banner Exchange
Service.
1.10 "Globe Site" means the World Wide Web sites on the Internet containing
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the domain name "theglobe" and all internally linked sub-pages.
1.11 "Home Page Builder" means that Web based authoring tool provided by
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Globe that shall enable a user to build a customized Web site, as part of a
Globe service.
1.12 "Impression" means the delivery of an ad banner to a browser.
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1.13 "Launch Date" means that first date upon which a prospective Globe
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Member can register for the Banner Exchange Service via the Globe Site.
1.14 "Member Data" means registration information specific to a third party
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that shall be obtained electronically by SmartAge as part of the process of such
third party registering for the Banner Exchange Service via the Globe Site.
1.15 "SmartAge Site" means SmartAge's World Wide Web site on the Internet
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located at xxxx://xxx.xxxxxxxx.xxx and all internally linked sub-pages.
1.16 "SmartClicks' Member" means a third party that registered for the
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SmartClicks' banner exchange service via the SmartClicks' Site.
1.17 "SmartClicks' Network" means that networked collection of Web sites on
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the World Wide Web participating in a banner exchange service provided by
SmartAge using the Banner Exchange Technology.
1.18 "SmartClicks' Site" means SmartClicks' World Wide Web site on the
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Internet located at xxxx://xxx.xxxxxxxxxxx.xxx and all internally linked sub-
pages.
1.19 "SmartClicks Terms and Conditions" means the terms, conditions,
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requirements, limitations and restrictions, as may be reasonably modified by
SmartAge from time to time, which are described on the page of the SmartClicks'
Site which has a title which is substantially similar to "SmartClicks Terms and
Conditions" and are currently as attached as Exhibit A, as may be modified from
time to time.
2. SMARTAGE OBLIGATIONS.
2.1 Service Level. SmartAge agrees to provide the Banner Exchange
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Service to Globe Members in a professional and reliable manner consistent with
that manner provided to SmartClicks' Members. SmartAge agrees that for every two
ad banners displayed through the Banner Exchange Service on a Globe Member Site,
the Active Globe Account will be credited to allow one ad banner promoting the
Globe Member Site.
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2.2 SmartClicks' Network. SmartAge agrees to enable Globe Members using
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the Banner Exchange Service to display their ad banners within the SmartClicks'
Network pursuant to: 1) the terms, conditions, requirements, limitations, and
restrictions of the SmartClicks Terms and Conditions, and 2) the prior approval
of SmartAge. SmartAge agrees to provide the Globe written notice prior to
significantly changing the SmartClicks Terms and Conditions. In the event the
Globe determines such change is material in nature, the Globe shall have the
right to terminate the Agreement pursuant to Section 8.2.
2.3 Hosting, Maintaining, and Serving. SmartAge agrees to host, maintain,
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administer and serve all ad banners, registration pages, statistical
information, and description pages related to a Globe Member's use of the Banner
Exchange Service.
2.4 Member Data Collection and Maintenance. SmartAge agrees to collect,
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maintain, and administer all Member Data at a location and on software and
equipment as determined by SmartAge.
2.5 Customer Support. SmartAge agrees to respond to all customer service
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issues and provide all customer service support related to use of the Banner
Exchange Service, in a professional and reliable manner consistent with that
manner provided to SmartClicks' Members. SmartAge agrees to work with Globe
customer care to resolve customer service issues and to respond promptly to
questions by Globe customer service. SmartAge will provide to Globe weekly
status reports regarding customer service, including the number of inquiries and
material complaints, and the resolution of such complaints. Such status reports
shall be provided in a manner and form as mutually agreed.
3. MARKETING AND PROMOTION.
3.1 Naming. Both parties shall display a word, phrase, or logo
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(respectively, "Globe Brand" and "SmartAge Brand") when marketing and promoting
the Banner Exchange Service to existing and prospective Globe Members. The
parties agree that, if approved by Globe's counsel, the Globe Brand shall
include the phrase "Clicks" (e.g., GlobeClicks) and the SmartAge Brand shall be
"Powered by SmartAge" or similar phrase. Both the Globe and SmartAge Brands
shall be in size, form, design and page location as mutually agreed.
3.2 Promotion. Globe agrees to promote the Banner Exchange Service to
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users of the Globe Site by placing a text hyperlink ("Promotional Link") in the
HP Builder Tool Bar under "Promotional Tools/Promotions". In addition, Globe
shall provide rotating Promotional Links as follows: on the home page of the
Globe Site, in the technology and business themed areas, and in other themed
areas at Globe's discretion. Globe agrees to work with SmartAge to select
additional mutually agreeable sections of the Globe Site within which to promote
the Banner Exchange Service. Globe further agrees to promote the Banner Exchange
Service via a press release pursuant to Section 3.5 herein.
3.3 E-Mail Promotion. Before or within ten (10) days after the Launch
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Date, Globe agrees to promote the Banner Exchange Service to its entire database
of existing and prospective members (other than members who have opted out of
receiving such messages) with an email message devoted to the launch of the
Banner Exchange Service. Each calendar quarter thereafter, Globe shall include a
standard text promotion of the Banner Exchange Service as part of the email
newsletter that it sends to its entire database of existing and prospective
members (other than members who have opted out of receiving such messages). Each
such e-mail distribution shall be in a manner, form and include content as
provided by SmartAge, subject to the approval of Globe.
3.4 Integration into Home Page Builder. The Globe and SmartAge will work
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together to integrate registration for the Banner Exchange Service into the Home
Page Builder. As of the Launch Date users who register for the Globe Site for
the *** shall *** for the Banner Exchange Service as
***CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
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a result of *** for the Home Page Builder, unless such user specifically
"***" of *** for the Banner Exchange Service or "***" of having their personal
information disclosed to a party other than Globe. Globe reserves the right to
change the *** so that users who *** for Globe are not *** registered for
the Banner Exchange Service but must "***" if they want to join the Banner
Exchange Service, provided however, that Globe shall provide SmartAge with at
least three (3) business days notice prior to any such change. In the event
that Globe changes the registration process to opt-in, Globe agrees to work
with SmartAge to resolve any issues that led to such *** in *** and to consider
at its option alternative integration processes with the intent of reinstating
the ***. Both parties agree that such integration shall be performed in manner
and with technical specifications as mutually agreed, provided however, that
such integration is completed no later than thirty (30) days after the
Effective Date. Existing members of the Globe Site will be able to register for
the Banner Exchange Service and will not be automatically registered.
3.5 Press Release. Both parties agree to promote the Banner Exchange
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Service via a joint press release that shall contain information as mutually
agreed and shall be issued no later than thirty (30) days after the Effective
Date. Except as stated above, neither party shall make any press release or
other public statement about this Agreement without the prior written consent of
the other party, which shall not be unreasonably withheld.
3.6 Launch of Service. Both parties agree that the Launch Date shall be
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thirty (30) days after the Effective Date of this Agreement, unless otherwise
mutually agreed in writing.
3.7 Exclusivity. SmartAge agrees not serve ad banners within the Globe
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Network of the direct competitors of Globe as specified on Exhibit D attached
hereto. Globe agrees not to serve ad banners on the Globe Site of the direct
competitors of SmartAge as specified on Exhibit E attached hereto. SmartAge and
Globe agree that either party may modify its respective list of direct
competitors upon thirty (30) days prior written notice to the other party.
3.8 Trademarks. Except as expressly set forth herein, no license to
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either party's Brands, trademarks or other such identifying marks ("Marks") is
granted under this Agreement and neither party may use the other party's
identifying marks without prior written consent. Title to and ownership of the
trademark owner's Marks shall remain with the owner. The licensee shall use the
Marks exactly in the form provided and in conformance with any trademark usage
policies. The licensee shall not take any action inconsistent with the owner's
ownership of the Marks and any benefits accruing from the use of such Marks
shall automatically vest in the owner. Promptly following the other party's
reasonable request, each party agrees to submit to the other party's
representative samples of their use of the Marks.
4. WEB PAGE REQUIREMENTS.
4.1 Description Page. Each Promotional Link on the Globe Site shall be
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linked to one or more description pages (each a "Description Page") which each
shall include general information provided by SmartAge explaining the benefits
of the Banner Exchange Service. Each Description Page shall be a Co-Branded Page
and shall display the Globe Brand and the SmartAge Brand with equal prominence.
The Description Page(s) shall be in form and design, and served from a location
as determined by SmartAge, subject to the approval of Globe.
4.2 Registration Page(s). Each Description Page shall include a prominent
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graphical hyperlink, which shall display "JOIN NOW", or other such similar
statement which prompts prospective Globe Members to register for the Banner
Exchange Service. Such prominent graphical hyperlink shall be linked to one or
more registration pages (each a "Registration Page") as mutually agreed by the
parties. Each Registration Page shall be a Co-Branded Page and shall display the
Globe Brand and SmartAge Brand with equal prominence. The Registration Page(s)
shall be in form and design, and shall include a minimum number of fields and
request
***CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
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specific Member Data as determined by SmartAge, subject to reasonable approval
of Globe. The Registration Page(s) shall be served from a location as solely
determined by SmartAge. The registration process shall be as currently specified
on Exhibit B attached hereto.
5. OWNERSHIP. SmartAge and Globe acknowledge and understand that Member Data
shall be collected and maintained by SmartAge, and shall be jointly owned by the
parties such that during the term of this Agreement, the Member Data shall be
treated as Confidential Information (as defined in Section 9) of both parties.
Each party shall each be permitted to use Member Data for marketing and other
purposes without notice or approval of the other party, provided however the
following: (i) neither party shall use any Member Data in a manner that
identifies (or permits the identification of) the origin of the Member Data as
being solely from the other party; (ii) SmartAge shall not permit the targeting
of Globe Members based on their status as Globe Members, and Globe shall not
permit the targeting of SmartAge Members based on their status as SmartAge
Members; and (iii) use of Member Data shall not be used by SmartAge to
specifically target only Globe Members and shall not be used by Globe to
specifically target only SmartAge Members. Each party shall use the Member Data
in accordance with the privacy policy under which it was collected.
6. ALLOCATED IMPRESSIONS.
6.1 Traffic Sharing. SmartAge agrees that the number of Impressions
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allocated to Globe shall be calculated as a percentage of the total Available
Impressions generated by the Globe Network. This percentage shall be based upon
the number of Globe Members participating in the Banner Exchange Service per the
following schedule:
Globe Members % of Available Impressions
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Up to *** members ***%
***-*** members ***%
Over *** members ***%
For example, if there are 10,000 Globe Members in the Globe Network which each
on average generate 50 Impressions per day, then the total number of Available
Impressions per day in the Globe Network is 250,000. Therefore, the total number
of Impressions allocated to Globe, pursuant to this Section 6.1 herein, is ***%
of this amount, which results in *** Impressions per day being allocated to
Globe or *** on a 30-day basis.
6.2 Use of Allocated Impressions. Globe shall be able to use its allocated
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Impressions, as calculated in Section 6.1, to promote Globe or to sell to a
third party, provided the following:
(a) if the allocated Impressions are to be used for the purposes of
promoting Globe, then they may be used on any Web site with available ad banner
inventory within the SmartClicks' Network;
(b) if the allocated Impressions are to be used for reselling to a
third party, then they may be used on any Web site with available ad banner
inventory within the Globe Network;
(c) allocated Impressions shall be used in a continuous and automatic
manner as mutually agreed such that any ad banners provided by Globe to SmartAge
for purposes of using such allocated Impressions shall be continuously displayed
within the SmartClicks' Network on Web sites with available ad banner inventory
unless otherwise mutually agreed.
***CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
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(d) usage of such allocated Impressions is subject to the Banner
Exchange Technology and the specific terms, conditions, requirements,
limitations, and restrictions of the SmartClicks Terms and Conditions as
currently specified on Exhibit A attached hereto.
6.3 Adjustments to Allocated Impressions. Globe acknowledges and
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understands that SmartAge may need to adjust the number of allocated Impressions
from time to time to compensate for variations that may occur due to the unique
aspects of the scheduling and targeting of excess ad banner inventory within the
SmartClicks' Network. In the event that any such adjustment is both material in
nature and results in a reduction in the number of Impressions allocated to
Globe in any calendar quarter, SmartAge agrees to make good such reduction by
increasing the allocation of Impressions to Globe in the following calendar
quarter by the amount of any such reduction.
6.4 Activity Reporting. SmartAge agrees to provide Globe with access to
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real-time reports specifying the total number of Active Globe Accounts, ad
banners shown within the Globe Network, Impressions allocated to Globe during
any prior day, the current balance of such unused Impressions, the total number
of Globe Member Sites and the URL's for each such site that were not approved by
SmartAge pursuant to Section 7.2, and any other information as mutually agreed.
Such summary report shall be accessed by Globe using a unique password via an
Internet address or in any other manner as both parties may mutually agree.
Globe shall have the right to inspect the relevant records of SmartAge for the
specific purposes of reasonably verifying such reports, provided however, that
the Globe will provide SmartAge with at least fourteen (14) business days prior
written notice before any such inspection and further provided, that Globe
agrees to limit any such inspections to no more than one (1) occasion per
calendar quarter unless it has material evidence that such records are
maintained in an unreliable or fraudulent manner. Any such inspection shall be
conducted during normal business hours and in a manner that does not
unreasonably interfere with SmartAge's business. Such activity reports shall be
substantially similar to Exhibit C attached hereto.
7. POLICIES & PROCEDURES.
7.1 Policies & Procedures. All of SmartAge's normal rules, requirements,
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operating policies, and procedures regarding the Banner Exchange Technology and
the Banner Exchange Service shall apply to Globe Members and the Globe Network
pursuant to the terms and conditions of this Agreement. SmartAge reserves the
right to reject any Globe Member or Globe Member Site that does not comply with
such policies and procedures. The parties agree to discuss and consider
proposals with respect to SmartAge's policies and procedures and adult
advertising opportunities on the Globe Network.
7.2 Approval of Member Sites and Ad Banners. Each Globe Member Site and
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its ad banners must be approved before submitting ad banners to the Globe
Network and prior to being served using the Banner Exchange Technology. Such
approval will be based upon the specific terms, conditions, requirements,
limitations, and restrictions of the SmartClicks Terms and Conditions. SmartAge
shall take necessary precautions and make a commercially reasonable effort not
to serve any ad banners promoting or referencing illegal products or services.
7.3 Removal of Ad Banners. At Globe's request, SmartAge shall make
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commercially reasonable efforts to remove from the Globe Network within forty-
eight (48) hours on a normal basis any ads that Globe does not want to appear on
the Globe Network.
7.4. Additional Restrictions. Globe may notify SmartAge of additional
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restrictions for banner ads to the Globe Network. SmartAge shall implement such
restrictions provided that they are technically feasible and further provided
that such restrictions are consistent with the then-current SmartClicks Terms
and Conditions.
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8. TERM & TERMINATION.
8.1 Term. This Agreement shall become effective on the Effective Date and
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shall continue in effect for an initial term of one (1) year, subject to earlier
termination pursuant to Sections 8.2 and 8.3 as described herein. Thereafter,
the Agreement shall renew for successive one (1) year periods unless either
party provides written notice to the other party of its intent not to renew at
least sixty (60) days prior to the termination of the then-current term.
8.2 Default. In the event either party defaults in the performance of any
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material obligation required to be performed hereunder, and such default is not
cured within thirty (30) calendar days after written notice thereof by the other
party, then the non-defaulting party, at its option, may, in addition to any
other remedies it may have, immediately terminate the Agreement by giving
written notice of termination to the defaulting party. For purposes of this
Section 8.2, any violation of Sections 2.2, 3.7, 7.3, or 7.4 shall be
considered a material default.
8.3 Insolvency. The Agreement may be terminated by either party,
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immediately on notice, (a) if the other party becomes insolvent, (b) upon the
institution by the other party of insolvency, receivership or bankruptcy
proceedings or any other proceedings for the settlement of its debts, (c) upon
the institution of such proceedings against the other party, which are not
dismissed or otherwise resolved in such other party's favor within forty-five
(45) days thereafter, (d) upon the other party's making a general assignment for
the benefit of creditors, or (e) upon the other party's dissolution or ceasing
to conduct business in the normal course.
8.4 No Liability for Damages. Neither party will be liable for damages
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of any kind as a result of exercising its right to terminate this Agreement
according to its terms, and termination will not affect any other right or
remedy at law or in equity of either party.
8.5 Effect of Termination. Upon termination or expiration of the
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Agreement, each party shall cease to perform all services for the other party as
described in this Agreement. Each party shall also immediately discontinue any
use of the other party's tradename and trademarks and all promotional activities
related to the other party's products or services. Each party further agrees to
immediately return all materials in its possession belonging to the other party.
8.6 Survival. Except as otherwise set forth herein, all rights and
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obligations of the parties pursuant to the following Sections shall survive any
termination of this Agreement: Sections 3.8, 5, 8.4, 8.5, 8.6, 9, 10.1, 11, 12,
and 13.
9. CONFIDENTIALITY.
(a) Each party to this Agreement acknowledges that it may receive
confidential information ("Confidential Information") of the other party. For
purposes of this Agreement, Confidential Information shall mean any trade
secret, information, process, technique, algorithm, computer program (source and
object codes), design, drawing, formula, test data, business development and
marketing plans and concepts, records and files, financial data and budgetary
information, income or sales data or projections, customer lists, information
regarding customers, facilities, suppliers, plans, or market analysis.
(b) Each party covenants and agrees that: (1) it will not, at any time,
reveal, divulge, or make known to any person, firm, corporation, or other entity
any Confidential Information of the other party; (2) it will not publish,
communicate, divulge, disclose or use such information for any purpose not
authorized by the other party, nor make copies or disclose in any manner
Confidential Information to any third party without prior written consent of the
other party; (3) it will not use the Confidential Information of the other party
for any purpose except to
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the extent required to accomplish the intent of this Agreement; and (4) it will
return to the other party any documents (including copies, if any) containing
Confidential Information of the other party after the need for such information
has expired, or upon the request of the other party, and, in any event, upon
completion or termination of this Agreement.
(c) Each party shall take reasonable security precautions, at least as
great as the precautions it takes to protect its own trade secrets, with respect
to the Confidential Information which it receives and shall disclose
Confidential Information on a need to know basis only to its subsidiary, agent
or subcontractor who is obligated to treat the Confidential Information in a
manner consistent with all the obligations of this Agreement.
(d) The term Confidential Information does not include information which
the receiving party can demonstrate by competent written proof: (1) is now, or
hereafter becomes, through no act or failure to act on the part of the receiving
party, generally known or available; (2) is known to the receiving party at the
time of receiving such information as evidenced by its records; (3) is hereafter
furnished to the receiving party by a third party, as a matter of right and
without restriction on disclosure; (4) is the subject of written permission to
disclose provided by the other party; or (5) is required to be disclosed by law.
(e) Each party agrees that any breach of obligations under this Section 9
shall be a material breach of this Agreement and result in irreparable harm to
the non-disclosing party for which damages would be an inadequate remedy and, in
addition to the rights and remedies otherwise available at law, the non-
disclosing party shall be entitled to equitable relief, including injunction, in
the event of such breach.
10. LIMITATION OF LIABILITY.
10.1 Aggregate Liability. In no event shall either party be liable for
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special, punitive, or consequential damages (including, but not limited to,
damages for loss of business profits, business interruption, loss of programs or
information, and the like), or any other damages arising in any way out of this
Agreement.
10.2 Service Interruptions. SmartAge and Globe will endeavor to keep their
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respective Web sites and services operational at all times, but certain
technical difficulties may, from time to time, result in temporary service
interruptions. Neither party shall be liable to the other for any consequences
of such services interruptions.
11. WARRANTIES. NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY
KIND, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING IMPLIED WARRANTIES OR
MERCHANTABILITY, SUITABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
12. INDEMNIFICATION.
12.1 SmartAge Indemnification. SmartAge shall indemnify, defend and hold
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harmless Globe and its officers, directors, employees and agents (the "SmartAge
Indemnified Parties") from and against any and all claims, demands, liabilities,
damages, actions, causes of action, costs or expenses of any kind or nature,
including reasonable attorney's fees and costs (together "Claims") arising out
of any allegation, suit or claim made or threatened by any third party against
SmartAge Indemnified Parties relating to (a) the Banner Exchange Technology and
the Banner Exchange Service, including the banner ads, and (b) acts, omissions,
or misrepresentations to the extent that SmartAge is deemed a principal of
Globe.
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12.2 Globe Indemnification. Globe shall indemnify, defend and hold
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harmless SmartAge and its officers, directors, employees and agents (the "Globe
Indemnified Parties") from and against any and all claims, demands, liabilities,
damages, actions, causes or action, costs or expenses of any kind or nature,
including reasonable attorney's fees and costs (together, "Claims") arising out
of any allegation, suit or claim made or threatened by any third party against
Globe Indemnified Parties relating to (a) the content of the Globe Site
specifically excluding Globe Member-generated or controlled content, the Banner
Exchange Technology and Banner Exchange Service, including the banner ads, and
(b) acts, omissions, or misrepresentations to the extent that Globe is deemed a
principal of SmartAge.
12.3 Provision of Indemnity. Any party entitled to indemnify under
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Sections 12.1 or 12.2 herein (the "Indemnified Party") shall promptly notify the
other party (the "Indemnifying Party") of any Claim for which the Indemnified
Party seeks indemnification, and shall permit the Indemnifying Party to control
the defense of any such Claim with counsel of Indemnifying Party's choice. The
Indemnified Party shall reasonably cooperate in the defense of any Claim, and
may, at its own cost and expense, participate in any defense with counsel of its
choice. In the event the Indemnifying Party fails after written notice to
perform its obligations under this Section 12, the Indemnified Party may at its
election take any action, including the settlement of any Claim, without further
notice to the Indemnifying Party, and without waiving any rights or Claims
against the Indemnifying Party it may have under this Agreement, at law or in
equity. The Indemnifying Party shall not settle any Claim without the prior
written consent of the Indemnified Party, which consent shall not be
unreasonably withheld.
13. MISCELLANEOUS.
13.1 Assignment. Neither party may assign this Agreement or transfer any
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of the rights, duties or obligations herein to any party (except to an
affiliated company) without the prior written consent of the other party and any
purported attempt to do so shall be null and void.
13.2 Relationship of Parties. SmartAge and Globe are independent
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contractors and nothing in this Agreement is intended or will create any form of
partnership, joint venture, agency, franchise, sales representative or
employment relationship between the parties. Neither party has the authority,
without the other party's prior written approval, to bind or commit the other
party in any way.
13.3 Waiver. No waiver of any provision of the Agreement shall be
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effective unless made in writing. No waiver of any breach of any provision of
the Agreement shall constitute a waiver of any subsequent breach of the same or
any other provision of the Agreement.
13.4 Governing Law and Dispute Resolution. Any dispute regarding the
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interpretation or validity hereof shall be governed by the laws of the State of
New York, exclusive of that body of law relating to choice of law. Both
parties submit to jurisdiction in New York and agree that any cause of action
arising under this Agreement shall be brought in a court in New York, New York.
13.5 Severability. The provisions of this Agreement are severable. If
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any one or more such provisions are judicially determined to be illegal or
otherwise unenforceable, in whole or in part, the remaining provisions or
portions of the Agreement shall be binding on and enforceable by and between the
parties hereto.
13.6 Notices. All notices required or permitted under this Agreement will
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be in writing, will reference this Agreement and will be deemed given: (a) when
actually delivered; (b) when sent by confirmed facsimile; or (c) the next
business day after deposit with a commercial overnight carrier specifying next-
day delivery, with written verification of receipt. All communications will be
sent to the address set forth below or to such other address as may be
designated by a party by giving written notice to the other party pursuant to
this Section 13.6:
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SmartAge
0000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: VP of Business Development
Globe
00 Xxxx 00/xx/ Xxxxxx, 0/xx/ xxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
13.7 Counterparts. This Agreement may be executed in two (2) counterparts,
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each of which shall be deemed an original and both of which together shall
constitute one instrument.
13.8 Entire Agreement. This Agreement constitutes the entire agreement
----------------
between the parties and supersedes all prior agreements and understandings
between them relating to the subject matter hereunder. No modifications of the
Agreement shall be binding on either party unless it is in writing and signed by
the party to be charged.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
themselves or by their duly authorized representatives on the dates set forth
below to be effective as of the Effective Date.
SmartAge Globe
BY: /s/ BY:/s/
---------------------------------- -----------------------------
NAME: Xxxxxxxxxxx X. Xxxx NAME: Xxxxxxx X. Xxxxxxxxx
------------------------------ -------------------------
TITLE: V.P. of Bus. Dev. TITLE: Director of Sales
----------------------------- -------------------------
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EXHIBIT A
By joining the SmartClicks ad network, members have indicated agreement to the
following terms and conditions. Compliance with the terms and conditions ensures
that only appropriate sites become SmartClicks members and that all network
advertising meets SmartClicks standards.
Any account or member violating these terms will be immediately removed from the
SmartClicks ad network.
1. SmartClicks reserves the right to refuse to continue membership to any Web
site in the SmartClicks network that contains or has links to nudity, sexual
situations, pornography, hate groups, illegal activities, offensive material or
for any other reason.
2. SmartClicks reserves the right to refuse to continue membership to any Web
site deemed to be competition, including, but not limited to, other banner
exchange services.
3. SmartClicks reserves the right to reject any banner that contains nudity,
profanity, offensive material or for any other reason.
4. Members agree to insert the provided SmartClicks HTML code for displaying
banners on their Web site. The SmartClicks HTML code may not be modified in any
way without written permission from SmartClicks.
5. Only one (1) SmartClicks banner may be placed on a page. A page is what is
displayed on one screen, so members who use frames must count all individual
pages in the frame as one page for banner placement purposes.
6. SmartClicks ad network banners must be displayed on the page such that the
banner is easily visible. Banners may not be "hidden" so that a visitor has no
way to view the banner.
7. SmartClicks banners must remain static on the member's Web site, and may not
be rotated with those of any other banner exchange service.
8. A member may not artificially inflate traffic counts to his/her site using
any device, program, robot or other means. A banner may not be placed on a page
that reloads automatically. Banners loaded via the SmartClicks HTML may not be
placed in newsgroups, e-mail, chat rooms or guestbooks, unless permission is
granted from SmartClicks. Any member whose account is terminated for
artificially inflated traffic counts may offer a defense to have the account re-
instated. SmartClicks' logs and/or judgments in these matters will prevail.
9. A member may not display the SmartClicks HTML on sites other than the one to
which the account is addressed to click through to, unless written permission is
granted from SmartClicks. A member may display the SmartClicks HTML on any of
the pages on the site, as long as there is a path of links from the page that
the banner clicks through to, to the page on which the banner is displayed.
10. A banner that appears on a member site may at any time be a banner for
another member, for a sponsor or partner, for SmartClicks or for other SmartAge
services. Ratings restrictions apply.
11. SmartClicks reserves the right not to accept any advertisements from
entities whose product or advertisement are deemed by SmartClicks to be
inappropriate, or for any other reason.
12. Members may cancel their accounts with the SmartClicks ad network at any
time by sending a request for
11
cancellation, containing the account number and password of the account in
question, via e-mail to xxxxxxxx@xxxxxxxxxxx.xxx, and removing the SmartClicks
HTML code from the Web site. Cancellations take place immediately.
13. The SmartClicks name, logo, software, databases, reports, Web site and
information are proprietary and cannot be used without permission from
SmartClicks. Exception: each member has the right to use information compiled by
SmartClicks for the member's site or in the promotion of the member's site.
14. Members agree that their Web site information (name, URL, traffic counts,
etc.) may be used by SmartClicks.
15. The information members provide to SmartClicks will be kept confidential and
will not be distributed, except in aggregate, to any outside agency, without the
permission of the member.
16. SmartClicks, its administrators, partners and sponsors cannot be held liable
for any damage or loss of information that may occur from the use of
SmartClicks' services.
17. Members agree to use SmartClicks at their own risk.
18. SmartClicks makes every effort to verify and maintain a high standard of
service quality, but SmartClicks does not make any guarantees regarding the
dependability or accuracy of SmartClicks' services.
19. SmartClicks will attempt to correct inconsistencies in credits due any
member based on the member's proof of inconsistency.
20. SmartClicks reserves the right to modify or change these Terms and
Conditions at any time, as it deems necessary. It is the member's responsibility
to keep current with changes in the Terms and Conditions, since changes are
effective for all members, regardless of when the member joined. Updates will be
evident by the date modified on the home page.
12
EXHIBIT B
[GRAPH APPEARS HERE]
[GRAPH APPEARS HERE]
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[GRAPH APPEARS HERE]
14
EXHIBIT C
X-Clicks Management Center
[GRAPH APPEARS HERE]
Program Activity
15
[GRAPH APPEARS HERE]
16
Monthly Summary - graphics to be added this week
[GRAPH APPEARS HERE]
Help
[GRAPH APPEARS HERE]
17
Daily Breakdown
[GRAPH APPEARS HERE]
Account Breakdown
[GRAPH APPEARS HERE]
18
Account Breakdown
Daily Breakdown
19
Transfer Credits
[GRAPH APPEARS HERE]
Creative Submission
[GRAPH APPEARS HERE]
20
Creative Submission
[GRAPH APPEARS HERE]
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EXHIBIT D
Portals and related services:
AOL
Excite
Yahoo!
Lycos-Tripod, Whowhere, Wired Properties, Angelfire
InfoSeek-WBS
Go Network
Altavista
Infospace
Snap!
Looksmart-Hypermart
MSN-Hotmail, web page building
Go2net
Email and related services:
Bigfoot
Xxxx.xxx
XXX.XXX
Prontomail
Juno
Communities and related services:
Xoom
Fortune City
Geocities
Talkcity
DejaNews
Nettaxi
Bianca
Hotcommunity
Hyperbanner
Xxxx.xxx
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EXHIBIT E
Link Exchange
Digital Work
Hyperbanner
Banner swap
EuroBanner
LogicLink
At Web
Xxxxxxxxxxx.xxx
Weborder
Inc.Magazine
123 Banners
WomenBanner
Banner Ad
Ad Exchange International
The Next Link
Ad Cycle
CyberLink
ICE
Trafficx
Free banners
BeFree
LinkShare
Hyper Exchange
Ad Xxxxxx
Trade Banners
GSA Xxx.xxx
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