ADSMART NETWORK
REPRESENTATION AGREEMENT
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THIS REPRESENTATION AGREEMENT (the "Agreement") is made on this 26th day of
April, 1999 (the "Effective Date"), by and between ADSMART NETWORK ("ADSMART")
with its principal place of business located at 000 Xxxxxxxxxx Xxxxxx, 0xx
Xxxxx, Xxxxxxx, XX 00000 and XXXXXXXXX.XXX, INC. ("PLI") with its principal
place of business located at 000 Xxxxxxx Xxxx Xx. Xxxxx 000, Xxxxxxxx, XX 00000.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, ADSmart and PLI agree to the
following:
1. ADSMART RESPONSIBILITIES.
(a) Representation. ADSmart will provide advertising sales representation
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and consultation services (collectively the "Representation Services") on
behalf of PLI's web site(s) (the "Website") set forth in Attachment A
("Attachment A") and made a part of this Agreement. In connection with such
Representation Services, ADSmart shall actively promote the Website and solicit
advertising for the Website. Any and all advertising shall be subject to the
approval of PLI in its absolute and unfettered discretion.
(b) Exclusivity. ADSmart is appointed the exclusive sales representative
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for PLI for the Initial Term and all Renewal Terms of this Agreement, as defined
below
(c) Management Services. ADSmart will provide the following management
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services ("Management Services"):
(i) Collect advertising creative ("Creative") from advertisers or ad
agencies ("Advertisers") that will be displayed on the Website.
(ii) Provide pipeline reports (the "Pipeline Reports") every two (2) weeks,
which outline advertising schedule, including costs, number of
impressions and outstanding proposals to Advertisers.
(iii)Update PLI on the progress and demand of the Internet advertising
marketplace.
(iv) Consult with PLI on marketing and advertising opportunities.
(d) Ad Serving & Tracking.
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(i) Banners. PLI will utilize banner serving through ADSmart. There
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will be no charge by ADSmart for this service (Subject to section 2F
below). ADSmart shall have exclusive control of the banner inventory
allocated to ADSmart by PLI and ADSmart shall have reasonable discretion
over the content and nature of the banners that can be sold to cover banner
serving and bandwidth cost. ADSmart will not run any advertising campaign
on the Website, which PLI reasonably determines to be offensive to PLI or
its customers or inconsistent with PLI's editorial policy.
Promotional campaigns and/or sponsorships shall not be included in the banner
inventory allocated to ADSmart.
(ii) Specific Requests. If PLI requests specific paid or non-paid
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campaigns to be placed on the banner spots allocated to ADSmart, PLI shall
pay ADSmart $.55 net per thousand impressions, for paid or non-paid open
inventory banner serving, auditing and reporting. ADSmart will deduct fees
for banner serving from checks being sent to PLI for advertising revenue.
If PLI requests banners to be served for its own internal purposes, using
the cost listed above, the amount of banner impressions will not exceed ten
percent (10%) of the monthly banner inventory allocated to ADSmart by PLI.
(f) Guarantee
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ADSmart guarantees that it will sell 100% of PLI's allocated banner inventory at
a minimum $2.00 gross CPM.
2. PLI'S RESPONSIBILITIES.
(a) Impressions. PLI will allocate a minimum of one- (1) million
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impressions ("Impressions") per month to ADSmart. (IMPRESSION-shall mean a
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single viewing of a web asset, such as an ad banner or HTML document.)
Impressions shall be a cross section of all available Impressions on the
Website. PLI will make reasonable efforts to ensure that the Impressions
committed to ADSmart are available and notify ADSmart immediately in the event
that any major decrease in Impressions is foreseen.
(b) Website Information. Upon execution of this Agreement, PLI will provide
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ADSmart with the following information: available demographic and psychographic
(interest and behavioral) information regarding Website audience, Website
description by section, advertising and sponsorship opportunities, technical
specifications relating to advertising, marketing information, and contact
information. PLI agrees to keep all information provided to ADSmart current and
will advise ADSmart on new opportunities with its Website and new services
offered by PLI.
(c) Tracking. PLI will provide ADSmart with a detailed inventory projection
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analysis of the Website's traffic, including visitor and page view totals
for its primary sections.
(d) Editorial Policy. PLI will provide ADSmart with its Website editorial
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policy.
(e) Fulfillment of Advertising Campaigns. PLI shall use its best efforts to
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fulfill all advertising campaigns obtained by ADSmart in a timely manner,
including but not limited to fulfilling estimated impressions.
(f) In-House Sales.ADSmart acknowledges that PLI's in-house sales force will
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continue its advertising sales efforts concurrently with this agreement and
ADSmart and PLI agree to work together to prevent duplication of sales efforts
and to inform the other of targeted advertisers. To facilitate this process,
PLI shall provide ADSmart with a report every month or more often in PLI's
discretion, which contains the same information provided by ADSmart to PLI in
ADSmart's Pipeline Report.
(g) Advertiser Exclusions. ADSmart shall not pursue any Advertiser listed
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on Attachment B ("Attachment B") and made a part of this Agreement.
3. MARKETING MATERIAL
(a) Highlighting and Approval. ADSmart will highlight the Website in its
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World Wide Web site on the Internet located at xxx.xxxxxxx.xxx and within
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its media kit. PLI will have the right to review in advance and approve the
final version of the media kit.
(b) Marketing Materials. PLI agrees and acknowledges that ADSmart may
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market and promote the Website to potential Advertisers, by such means as it
deems appropriate, including, without limitation, listing the in directories,
trade publications, ADSmart proposals and presentations, advertisements, and
other promotional opportunities.
(c) Promotional Material. PLI agrees to provide ADSmart with reasonable
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amounts of PLI's promotional materials.
(d) Press Releases. Both parties must approve in writing all press releases
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or announcements referring to any ADSmart/PLI agreement before they are released
to the press or any third party.
(e) Registry as Agent. PLI authorizes ADSmart Network to register as PLI's
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agent in all relevant periodicals, directories, and other marketing sources
identified by ADSmart and approved in advance by PLI within the scope of and
during the Initial Term and all Renewal Terms of this Agreement.
4. COMPENSATION. For the Representation Services and Management Services
provided by ADSmart, PLI agrees to pay ADSmart a thirty-five- (35%) percent
commission on all net advertising revenues invoiced and collected by ADSmart
arising out of the advertisements placed upon the Website by ADSmart during the
term of this Agreement, less credits, refunds and sales or use taxes.
5. BILLING.
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(a) Collection. ADSmart will invoice and collect all advertising revenue
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from Advertisers solicited by ADSmart on behalf of PLI.
(b) Billing. Billing by ADSmart is calculated using gross invoice amount,
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equal to CPM in effect at the time of signature of the insertion Order,
multiplied by the number of Impressions delivered divided by one thousand. The
net invoice amount is the gross invoice amount less a 15% agency commission
(where applicable). The invoice sent by ADSmart to the Advertiser will include
both a gross invoice amount and the net invoice amount in applicable situations.
ADSmart shall pay PLI the amount for each campaign calculated from the net
invoice amount billed to the Advertiser (i.e., the amount that we are actually
due to receive from the Advertiser), less ADSmart's Commission, as set forth in
Section 4 above.
(c) Reports. ADSmart will provide written details of ADSmart generated
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activity on the Website. These reports will, at a minimum, summarize (i) the
ADSmart xx xxxxxxxxx that ran and how long they ran, (ii) the number of
Impressions delivered.
(d) Payment. ADSmart shall remit amounts due to PLI within fifteen (15)
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business days from the date of receipt of payment or within one hundred, twenty
(120) days from the end of the campaign, whichever occurs first
6. CONFIDENTIAL INFORMATION. "Confidential Information" means all
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information identified in written or oral format by the Disclosing Party as
confidential, trade secret or proprietary information, and, if disclosed orally,
summarized in written format within thirty (30) days of disclosure.
Confidential Information shall also include the terms and conditions of this
Agreement. "Disclosing Party" is the party disclosing Confidential Information.
"Receiving Party" is the party receiving Confidential Information. The
Receiving Party shall not use the Confidential Information except to carry out
the purposes of this Agreement, or disclose the Confidential Information to any
third party other than persons in the direct employ of the Receiving Party who
have a need to have access to and knowledge of the Confidential Information
solely for the purpose authorized above. Each party shall take appropriate
measures by instruction and agreement prior to disclosure to such employees to
assure against unauthorized use or disclosure. The Receiving Party shall have
no obligation with respect to information which (i) was rightfully in possession
of or known to the Receiving Party without any obligation of confidentiality
prior to receiving it from the Disclosing Party; (ii) is, or subsequently
becomes, legally and publicly available without breach of this Agreement; (iii)
is rightfully obtained by the Receiving Party from a source other than the
Disclosing Party without any obligation of confidentiality; or (iv) is disclosed
by the Receiving Party under a valid order created by a court or government
agency, provided that the Receiving Party provides prior written notice to the
Disclosing Party of such obligation and the opportunity to oppose such
disclosure. Upon written demand of the Disclosing Party, the Receiving Party
shall cease using the Confidential Information and return the Confidential
Information and all copies, notes or extracts thereof to the Disclosing Party
within seven (7) days of receipt of notice.
7. PLI'S REPRESENTATIONS AND WARRANTIES.PLI represents and warrants that (i)
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it has full power and authority to enter into this Agreement, (ii) this
Agreement does not conflict with any other agreement or commitment made by PLI,
(iii) it shall not do anything to harm or bring into disrepute or disparage
ADSmart or any Advertiser, (iv) the Website is year 2000 compliant, and (v) it
will use best efforts to provide its services in accordance with the terms of
this Agreement and in accordance with industry standards.
8. ADSMART'S REPRESENTATIONS AND WARRANTIES. ADSmart represents and
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warrants that (i) it has full power and authority to enter into this Agreement,
(ii) this Agreement does not conflict with any other agreement or commitment
made by ADSmart, (iii) it shall not do anything to harm or bring into disrepute
or disparage PLI, and (iv) it will use best efforts to provide its services in
accordance with the terms of this Agreement and in accordance with industry
standards.
9. WARRANTV DISCLAIMER.EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES
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PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY
EXPRESS OR IMPLIED WITH RESPECT TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT
LIMITATION, NETWORK FAILURES, THIRD-PARTY AD SERVING DIFFICULTIES, THE SOFTWARE
PROGRAMS, SERVICES PROVIDED HEREUNDER, OR ANY OUTPUT OR RESULTS THEREOF.
ADSMART SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
10. INDEMNIFICATION. Each party agrees to indemnify, defend, and hold
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harmless the other party, and its successors, officers, directors, employees,
agents and assigns, from and against any and all third party actions, causes of
action, claims, demands, costs, liabilities, expenses and damages arising out of
or in connection with any claim which, if true, would be a breach of the
warranties, representations, and covenants set forth in this Agreement. ADSmart
is not a party to and has no liability for any and all problems which may arise
in connection with the Website, including, without limitation, failure to
fulfill an advertising insertion order obtained as part of the Representation
Services.
11. LIMITATION OF LIABILITY. Expect as set forth in paragraphs 6 and 10,
ADSmart's total liability arising out of this Agreement or the services provided
hereunder, whether based on contract, tort or otherwise, shall not exceed
commissions paid to ADSmart for xx xxxxxxxxx run on PLI's behalf or $50,000,
whichever is less. PLI's total liability arising out of this Agreement or the
services provided hereunder, whether based on contract, tort or otherwise, shall
not exceed revenues received from ADSmart for xx xxxxxxxxx run on PLI's behalf
or $50,000, whichever is less.
12. EXCLUSION OF DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT
LIMITED TO, LOSS OF DATA, LOSS OF USE, OR LOSS OF PROFITS ARISING HEREUNDER OR
FROM THE PROVISION OF SERVICES, INCLUDING ADVERTISING ON PLI'S WEBSITE, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. TERM AND TERMINATION.
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(a) Basic Provisions. This Agreement shall have a term of one year (the
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.'Term") and shall automatically renew for periods of one year thereafter (each,
a
"Renewal Term"), unless either party provides sixty (60) days written notice of
their intent to terminate the Agreement immediately prior to any renewal.
(b) Minimum Term. After an initial term of ninety- (90) days, either party
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may terminate this Agreement at the end of ninety (90) days with thirty- (30)
days-advanced written notice.
(c) Breach and Cure. In the event a party is given notice that it is in
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material breach of this agreement, it shall have thirty (30) days from
receipt to cure its breach in all material respects. On the failure so to
cure, the non-breaching party may terminate this agreement. In the event of
termination pursuant to this section, all revenue due PLI (minus all ad-serving
fees & compensations due ADSmart) prior to termination will be paid in
accordance with this Agreement.
(d) Content. ADSmart may, in its sole discretion, decide to terminate this
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Agreement immediately if ADSmart feels that continuing to represent PLI's
Website conflicts with ADSmart's standards and the standards being set by other
websites in ADSmart's network. Examples of this include: pornography, excessive
violence, abusive and/or foul language, or a pattern of neglect on the Website
such that it appears PLI is not updating it regularly, or has abandoned it
altogether.
(e) For a period of three- (3) months following the expiration or earlier
termination of this agreement, ADSmart shelf continue to be entitled to its
commission for advertising revenue generated from any and all advertisers
initially obtained by ADSmart. Except as set forth in this agreement, PLI shall
have no other liability to ADSmart whatsoever and shall not be liable for any
damages or losses to ADSmart resulting from the expiration or termination of
this agreement.
14. NON-COMPETITION.The Parties agree that during the Initial Term and all
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Renewal Terms of this Agreement and for a period of six (6) months following the
expiration or earlier termination of this Agreement, a Party shall not solicit
the services of any employee of the other Party, including, without limitation,
as a full or part-time employee or independent contractor unless such person has
left the employment of a Party and formed his or her own business. In such
case, Party shall have the right to hire such person as a consultant.
15. MISCELLANEOUS. Sections 4, 6, 7, 8, 9, 10, 11, 12, 13, 13(d), 14 and 15
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shall survive expiration or earlier termination of this Agreement. Nothing in
this Agreement shall be deemed to create a partnership or joint venture between
the parties and neither ADSmart nor PLI shall hold itself out as the agent of
the other, except for that specified in this Agreement. Neither party shall be
liable to the other for delays or failures in performance resulting from causes
beyond the reasonable control of that party, including, but not limited to, acts
of God, labor disputes or disturbances, material shortages or rationing, riots,
acts of war, governmental regulations, communication or utility failures, or
casualties. Any notice required or permitted to be given by either party under
this Agreement shall be in writing and shall be personally delivered or sent by
a reputable overnight mail service (e.g., Federal Express), or by first class
mail (certified or registered). Failure by either party to enforce any
provision of this Agreement will not be deemed a waiver of future enforcement of
that or any other provision. Any waiver, amendment or other modification of any
provision of this Agreement will be effective only if in writing and signed by
the parties. If for any reason a court of competent jurisdiction finds any
provision of this Agreement to be unenforceable, that provision of the Agreement
will be enforced to the maximum extent permissible so as to effect the intent of
the parties, and the remainder of this Agreement will continue in full force and
effect. This agreement shall be interpreted under the laws of the Commonwealth
of Massachusetts, and the parties submit to the exclusive jurisdiction of the
courts of the Commonwealth of Massachusetts, including the federal courts
located there. Headings used in this Agreement are for ease of reference only
and shall not be used to interpret any aspect of this Agreement. This
Agreement, including all attachments which are incorporated herein by reference,
constitutes the entire agreement between the parties with respect to the subject
matter hereof, and supersedes and replaces all prior and contemporaneous
understandings or agreements, written or oral, regarding such subject matter.
Neither ADSmart nor its agents, if any, is a franchise, partner, broker,
employee, servant or agent of PLI. Each is an independent contractor with
respect to its right s and obligations under this agreement.
IN WITNESS OF THE FOREGOING, the parties have caused the Agreement to be signed
as of the Effective Date set forth above.
ADSMART NETWORK XXXXXXXXX.XXX
BY: /S/ XXXX XXXXXXXXX BY: /S/ XXXX XXXXXXXX
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NAME: XXXX XXXXXXXXX NAME: XXXX XXXXXXXX
TITLE: VP, BUSINESS DEVELOPMENT TITLE: PRESIDENT
DATE: APRIL 26, 1999 DATE: 4/29/99
ATTACHMENT A
This Attachment dated April 26, 1999 supersedes any previous drafted
Attachment A.
Representation by ADSmart for PLI includes the following Website(s):
Site Name -
xxxx://xxx.x)xxxxxxxx.xxx
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plus Co-Branded xxxxxxxxx.xxx sites -
ATTACHMENT B
This Attachment dated April 26, 1999 supersedes any previous drafted
Attachment B.
ADSmart is not to contact any of the following accounts on behalf of PLI,
unless PLI formally notifies ADSmart in writing:
Competitors:
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Kodak
PhotoPoint
PhotoNet
Live Pictures
Zing
Photo Highway
Club Photo
