(v) Web Advertising Sales Agreement between Electronic Business Network, Inc.and
Flycast Communications Corporation dated June 13,1999.
Company Name ("Affiliate") Xxxxxxxx.xxx
Primary Site(s) URL(s) xxx.xxxxxxxx.xxx
Contact Person(s) Name Xxxxxxx Xxxxxxxx
Phone 000-000-0000
E-mail Xxxxxxx@xxxxxxx.xxx
FLYCAST NETWORK
Web Advertising Sales Agreement
This Agreement, dated June 13, 1999, describes the entire terms and
conditions for the sale of web advertising impressions on the Flycast
Network between Flycast Communications Corporation ("Flycast") and
xxxxxxxx.xxx (hereinafter "Affiliate").
Section 1.0 Definitions
1.1 Ad Spaces. The web page section(s) on Affiliate's web site registered
with Flycast that generate Impressions.
1.2 Advertisers. Customers who buy Impressions on the Flycast Network.
1.3 Affiliates. Web sites that register Ad Spaces for sale on the Flycast
Network.
1.4 Flycast. Flycast Communications Corporation, a California corporation.
1.5 Flycast Ad Management System. The tools and services provided by
Flycast to manage web advertising campaigns, including AdAgent(TM),
AdReporter(TM), SiteRegistry(TM), and SiteReporter(TM).
1.6 Flycast Network(TM). The network of web sites on which Advertisers can
purchase Impressions.
1.7 Impressions. Web advertising impressions sold or made available for
sale over the Flycast Network.
1.8 SiteRegistry(TM). The HTML form(s) on Flycast's web site used by
Affiliates to register their Ad Spaces with the Flycast Network, and to
set and adjust status information, and the terms and conditions of
membership with Flycast.
Section 2.0 Sale of Impressions
2.1 General.
Affiliate agrees to make Impressions available for sale on the Flycast
Network in accordance with the terms set forth in the Flycast Site
Registry.
2.2 Fulfillment.
Affiliate understands that Advertisers use information about available
Impressions on Affiliate's site to plan their Web media buys. Accordingly,
Affiliate agrees to provide all the Impressions reflected int eh Site
Registry for sale over the Flycast Network.
2.3 Payment to Affiliate.
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Flycast will pay Affiliate sixty percent (60%) of the Net Revenues
generated from the sale of Affiliate's Impressions through the Flycast
Network. For this purpose, "Net Revenues" meaning the revenues invoiced
and collected by Flycast, net of all agency commissions or similar charges
sold or credited in connection with the sale of the Impressions. If the
performance of ads placed on affiliate site consistently falls below
Flycast's network average for a period of two months, Flycast may
establish an over delivery schedule to bring affiliate up to standards.
2.4 Payment Terms.
Flycast will remit a monthly payment to Affiliate sixty (60) days after
the end of the month in which Impressions are sold through the Flycast
Network. For example, Affiliate will be paid by March 30 for ads placed
during the preceding month of January. A Flycast payment report
summarizing the Affiliate's activity will accompany payment for the month.
Flycast will accrue and hold monthly payments due to Affiliate until the
aggregate amount due exceeds $200 (or such Affiliate will not be involved
on buys of less than 52 CPM.
2.5 Discrepancies.
Affiliate has thirty (30) days from the receipt of payment to report any
discrepancy or to question the payment. Flycast and Affiliate will use
their best efforts to resolve any discrepancy or question quickly and
fairly. In case of a discrepancy between any report generated by Flycast's
SiteReporter (Flycast's online reporting application) and Flycast's final
billing information, the billing information will control.
2.6 Ad Blocking.
Flycast provides Affiliate an automated procedure for blocking selected
advertisers or advertisements from appearing on their Ad Spaces. Affiliate
is responsible for utilizing Flycast's ad blocking system in accordance
with the procedures set forth on Flycast's web site. Affiliate
acknowledges that Flycast's blocking system provides adequate protection
against appearance of unwanted or inappropriate advertisements or
advertisers on Affiliate's Ad Spaces. AFFILIATE AGREES THAT NEITHER
FLYCAST OR ANY ADVERTISER SHALL BE LIABLE FOR THE CONTENT OF ANY
ADVERTISEMENTS DELIVERED BY FLYCAST ON AFFILIATE'S AD SPACES.
2.7 Minimum Impressions; Term.
Affiliate agrees to make a minimum of 100,000 and an estimated 50,000,000
Impressions available for sale per month on the Flycast Network for at
least three (3) months from the date hereof. This Agreement will
automatically renew at the end of the initial term and will remain in
effect unless terminated by either party with 30 day's notice. Either
party may, at its sole option, terminate this Agreement in its entirety in
the event that (i) the other party breaches any of its material
obligations, representations or warranties under this Agreement and fails
to cure such breach within thirty (30) days of receiving notice thereof,
(ii) the other party is acquired by a third party that would reasonably be
determined to be involved in substantial business activities that are
directly competitive with the business of the terminating party, or (iii)
the other party initiates insolvency, receivership or bankruptcy
proceeding or any other proceedings for the settlement of debt, which are
not dismissed or resolved in such other party's favor within sixty (60)
days thereafter.
2.9 Promotional Impressions.
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Affiliate agrees to provide up to five percent (5%) of its delivered
Impressions to Flycast free of charge for use in collecting demographic
dates and for promoting the Affiliate and the Flycast Network.
2.9.1 Rights upon Termination.
On termination of this Agreement, all of Affiliate's rights to conduct the
activities set forth in this Agreement shall case. If this Agreement is
terminated for any reason, neither party will be liable to the other
because of such termination for damages for the loss of prospective
profits, anticipated sales, goodwill, or for expenditures, investments or
commitments made in connection with this Agreement. The termination of
this Agreement shall not relieve either party from its liability to pay
any fees that have accrued to the other party prior to the date of
termination. The parties' rights and obligations under Sections 3.6 to 3.8
shall survive expiration or termination of this Agreement.
Section 3.0 Standard Terms and Conditions.
3.1 Programming.
Affiliate will affect all necessary HTML changes with respect to the Ad
Spaces as described in Flycast SiteRegistry to enable Flycast to deliver
Impressions to Advertisers in accordance with this Agreement.
3.3 Quality Assurance.
Affiliate will maintain its web site and Ad Spaces in accordance with the
highest industry standards. Affiliate acknowledges that Flycast has no
responsibility to review the content of its web site(s) or Ad Spaces
without limiting the foregoing. Affiliate represents and warrants that:
a. Content Restrictions. Affiliate's web site(s) and Ad Spaces shall
not contain, or contain links to, content promoting the use of
alcohol, tobacco or illegal substances, nudity, sex, pornography, or
adult-oriented contents expletives or inappropriate language;
content promoting illegal activity, racism, hate, "spam", mail
fraud, pyramid schemes, or investment opportunities or advice not
permitted under law; content that is libelous or deemed
inappropriate by Flycast in its sole discretion.
b. Ad Spaces Location - Limitation. Affiliate agrees to place
Flycast Ad Spaces in a conspicuous location on pages on its web
site(s), at the top of the web page, or on the top one-third of an
expanded view of the page on a 640x480 monitor. In addition,
Affiliate agrees that it shall not display more than one 468x60
advertisement (whether or not provided by Flycast) on any single
page on which a Flycast Ad Space appears. Other smaller ad spaces
may be acceptable given that they do not deteriorate the integrity
of the page.
c. Valid Impressions. Affiliate shall not run "rodents" or "spiders"
against web site(s) or use any means to artificially increase the
Impressions available with respect to any Ad Spaces.
d. Refresh Pages. Affiliate may utilize "refresh banner rotations"
only for pages that have chat, video broadcast, audio broadcast, or
active gaming
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content. Such ads must not be refreshed more frequently than every
five (5) minutes.
e. Co-operation. Affiliate will cooperate with any reasonable
Flycast efforts or initiatives relating to auditing sites on the
Flycast Network, obtaining enhanced demographic information about
visitors to Affiliate's site(s), or other activity designed to
increase the value of the Flycast Network.
Affiliate understands and agrees that a violation of this Section 3.2 may
result in the suspension or termination of active advertising campaigns
running on Affiliate's Ad Spaces, removal of Affiliate's web site(s) from
the Flycast Network or any other action deemed necessary in Flycast's sole
discretion.
3.3 Proprietary Rights.
Affiliate agrees that it shall not have, nor will it claim, any right,
title or interest in any advertising content delivered by Flycast (other
than Affiliate's own advertising content). Affiliate understands that
Flycast grants Affiliate no license to Flycast advertising content, the
name "Flycast" or any derivative thereof, or any other trademarks, logos,
copyrights, patents, trade secrets, or other intellectual property rights
which are owned or controlled by Flycast and made available to Affiliate
in any manner.
3.4 Public Relations.
Flycast retains the right to refer to Affiliate in its web site, press
release and marketing collateral (per Affiliate's review and approval).
Affiliate agrees to provide to Flycast review and approval of all Flycast
mentions in press releases and marketing collateral.
3.5 Representation and Warranties.
Each party represents and warrants to the other party that such party has
the full corporate right, power and authority to enter into this Agreement
and to perform the acts required of it hereunder, and the execution of
this Agreement and the performance by such party of its obligations and
duties hereunder, do not and will not violate any agreement to which such
party is a party or by which it is otherwise bound; and when executed and
delivered by such party, this Agreement will constitute the legal, valid
and binding obligation of such party, enforceable against such party in
accordance with its term. Such party acknowledges that the other party
makes no representations, warranties or agreements (written or oral)
related to the subject matter except as expressly provided for in this
Agreement.
3.6 Limitation of Liability
The parties agree that: (i) Flycast exercises no control and has no
responsibility whatsoever over the content or quality of any advertising
materials or any Ad Spaces, (ii) use of Flycast's services is at
Affiliate's own risk, and (iii) this is not a contract for the sale of
goods and, therefore, is not subject to the Uniform Commercial Code,
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED "AS IS" AND
"AS AVAILABLE" AND FLYCAST DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER
EXPRESS OR IMPLIED, FOR THE ADVERTISING SERVICES, INCLUDING
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BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING
OR COURSE OF
loss, cost, damage, or expense (including attorney's fees) incurred by Affiliate
or any advertiser in connection with an advertisers or Affiliates participation
in the Flycast Network Flycast makes no guarantees with respect to the services
rendered under this Agreement, and neither Flycast nor any of its officers,
directors, agents, Flycast Network members or sponsors shall have any liability
as a result of Flycast's performance of this Agreement, including, without
limitation, Internet disruption, interrupted service, errors or delays in
providing the service, levels of use or impressions, loss of data, failure to
provide delays in providing the service, levels of use or impressions, loss of
data, failure to provide requested subject categories, failure to meet Affiliate
or advertiser's requirements, or other injury, damage, or disruption to
advertiser or advertiser's web site. Without limiting the foregoing, Flycast's
entire liability under, for breach of, arising under, or related to this
Agreement or the services to be provided hereunder (whether in tort, contract or
any other theory), and Affiliate's sole remedy, is for Flycast, if possible, to
provide the services agreed hereunder or refund any amounts prepaid by Affiliate
related to the services giving rise to such liability, provided such refund
shall not exceed the aggregate charges for services rendered for the prior six
months under this Agreement that gave rise to such liability. In no event shall
Flycast be liable for indirect, exemplary, special, incidental or consequential
damages, or costs, including but nor limited to, any lost profits or revenues,
loss or use or goodwill, or any third party claims, even if such party has been
advised of the possibility of such damages
3.7. Nondisclosure and Confidential Information
Affiliate shall not disclose any of the terms and conditions of this Agreement
to any third party without the express written consent of Flycast Neither party
shall disclose to any third party the Confidential Information of the other
party and shall not use any such Confidential Information for any purpose other
than the purpose for which it was originally disclosed to the receiving party.
"Confidential Information" shall not include information that (i) is known to
the receiving party at the time it receives Confidential information; (ii) has
become publicly known through no wrongful act of the receiving party; (iii) has
been rightfully received by the receiving party from a third party authorized to
make such communication without restriction; (iv) has been approved for release
by written authorization of the disclosing party; or (v) is required by law to
be disclosed.
3 8. Indemnifications
Affiliate, at its own expense, shall indemnify, defend and hold Flycast and its
officers, directors, employees, agents, distributors and licensees harmless from
and against any judgments, losses, deficiencies, damages, liabilities, costs and
expenses (including reasonable attorneys' fees and expenses) incurred in
connection with claims arising out of publication of any content or information
published by Affiliate hereunder (including without limitation, any claim of
trademark or copyright infringement, liable, defamation or breach of
confidentiality) or any product or service related to such content or
information or any breach of a third party contract
3.9. Miscellaneous
a. Independent Contractors The parties to this Agreement are independent
contractors Neither party is an agent or partner of the other party. Neither
party shall have any right, power or authority to enter into any agreement for
or on behalf of, or under any obligation or liability of, or to otherwise bind,
the other party This Agreement shall not be interrupted or construed to create
an association, agency, joint venture or partnership between the parties or to
impose any liability attributable to such a relationship upon either party
b. Entire Agreement. This Agreement sets forth the entire Agreement between the
parties and supersedes prior proposals, agreements and representations between
the parties, whether written or oral, regarding the subject matter contained
herein. This Agreement may be changed only by mutual agreement of the parties in
writing This Agreement may be executed in any number of counterparts, each of
which shall be an original and all of which shall be an original and all of
which shall constitute together but one and the same document
c. Assignment. Affiliate may not assign or otherwise transfer, whether
voluntarily or by operation of law, any rights, or obligations under this
Agreement without the prior written consent of Flycast.
d. Governing Law/Notice. This Agreement shall be construed and interpreted
according to the laws of the State of California without reference to conflicts
of law provisions. The parties hereby consent to the exclusive jurisdiction of
the courts of San Francisco County, California. All written notice between the
parties shall be deemed to have been given if personally delivered, sent by
courier or certified, registered or certified airmail) to the address set forth
above (or as otherwise directed in writing) Unless otherwise provided herein,
all notices shall be deemed to have been duly given on: (a) the date of receipt
(or if delivery is refused, the date of such refused) if delivered personally,
by electronic mail or by courier, or (b) three (3) days after the date of
posting if transmitted by mail.
e. Waiver/Severability. The waiver by either party of a breach or right under
this Agreement will not constitute a waiver of any other or subsequent breach of
right. If any provision of this Agreement is found to be invalid or
unenforceable by a court of competent jurisdiction, such provision shall be
severed from the remainder of this Agreement, which will remain in full force
and effect.
f. Force Majeure. Flycast shall not be in default or otherwise liable for any
delay in or failure of its performance under this Agreement where such delay or
failure of its performance under this Agreement arises by reason of any Act of
God, or any government or any governmental body, acts of war, the elements,
strikes or labor disputes, or other cause beyond the control of Flycast.
Flycast Communications Corporation
By: /s/ Xxxx Xxxxxx
----------------------------------------
Title: Media Sales
Flycast Communications Corporation
Affiliate
By /s/ Xxxxxxx Xxxxxxxx
----------------------------------------
Title: Sales Associate
(Company Name: Electronic Business Network)
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