EXHIBIT 10.07
NETWORK AFFILIATE AGREEMENT
Company: All Xxxxxxxxx.xxx
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Address: 00000 Xxxx Xxxxxxx Xxxx, Xxxxxxx, XX 00000
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Web Site: The All Advantage "Viewbar" Technology
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This Agreement is made and entered into as of November 11, 1999 (the
"Effective Date") by and between the above named company ("Company"), and
DoubleClick Inc. ("DoubleClick"), and will constitute a valid and binding
agreement between Company and DoubleClick according to the specific terms and
conditions set forth below and those terms and conditions set forth in the
Standard Terms and Conditions (together, the "Agreement"). All terms not
otherwise defined below shall be as defined in Section 8 of the Standard Terms
and Conditions.
I. DESCRIPTION OF SERVICES/INVENTORY
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A. Company hereby agrees to provide DoubleClick with Advertising inventory
("Inventory") from the Web Site in accordance with a schedule attached
hereto as Exhibit A, which schedule sets forth the minimum amount of
Inventory to be provided by Company over each month of the Term (the
"Minimum Inventory Level(s)"). During each month of the Term,
DoubleClick may request inventory in any amount, including an amount over
and above the Minimum Inventory Level for that month; provided, however,
Company shall only be obligated to provide inventory up to the Minimum
Inventory Level for that month. If Company does not provide DoubleClick
with the amount of inventory it requests in any month of the Term and
such requested amount is at or below the Minimum Inventory Level for that
month (a "Shortfall Month"), Company agrees to pay DoubleClick, as
DoubleClick's sole and exclusive remedy (subject to Section III C), an
amount calculated as follows: take the difference between the Minimum
Inventory Level for that Shortfall Month and DoubleClick's requested
amount for such month, divide such difference by [*], and multiply such
resulting number by $[*] (the "Shortfall Payment"). Such Shortfall
Payment shall be payable within fifteen (15) days of the end of the
month, and shall be deducted from the Advance (as defined below). Company
agrees that the inventory it provides to DoubleClick pursuant to this
Agreement shall be for U.S. Advertising and constitute a random sampling
(in terms of click-through rates, demographic make-up and other factors
that indicate value of inventory) of all Inventory available on the Web
Site. In addition, Company agrees that the tags it passes to DoubleClick
for such inventory shall include all relevant targeting information,
including, without limitation, geographic and demographic information,
site name, channel and/or keyword targeting information (if available)
("Targeted Inventory"), that DoubleClick may or may not sell as such, in
DoubleClick's sole discretion. DoubleClick shall not use such tags for
any purpose other than targeting Advertisements pursuant to this
Agreement.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED FROM THE PUBLIC FILING
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED
PORTIONS.
Company shall treat the time during which an advertisement is displayed
within the Web Site to a user (the "Ad Display Time") for the Inventory
the same as it treats the Ad Display Time for other inventory on the Web
Site.
B. DoubleClick hereby agrees to link the Web Site to the Service and through
such Service, DoubleClick shall deliver all Advertisers' Advertising to
users accessing the Web Site subject to the terms and conditions of this
Agreement and the DART Services Agreement for Publishers, entered into by
the parties on November 11, 1999 (the "DART Agreement").
C. Company hereby appoints DoubleClick a non-exclusive representative for
the sale of Advertising on the Web Site pursuant to the terms and
conditions of this Agreement. DoubleClick will sell all Advertising
under this Agreement as "blind inventory" as part of a pool of
advertising inventory for multiple web properties such that Advertisers
do not know that they are purchasing Advertising on the Web Site.
II. CASH ADVANCE
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DoubleClick hereby agrees to pay Company a cash advance in the amount of
[*] dollars ($[*]), payable by wire transfer to a Company account
(designated by Company in writing to DoubleClick) on Wednesday November
17, 1999 (the "Advance"). Company shall deposit the Advance in a
segregated account of Company (the "Account"), in which Account
DoubleClick shall have and is hereby granted a security interest.
Company may withdraw no more than $[*] upon receipt of the Advance, and
may not withdraw from the Account more than $[*] per month thereafter
(measured on the 12th of each such month, such that the operative dates
for withdrawals shall be: November 18; December 12; January 12 and
February 12); provided, however, that there shall be no further
limitations or restrictions on Company's withdrawal from or use of the
Account or the Advance. Company agrees to cooperate with DoubleClick to
enable DoubleClick to complete those filings necessary to perfect the
security interest described above. If, at or after the point at which
the balance of the Account is less than $[*], Company suffers a
fundamental inability to deliver Inventory, measured by at least 3
consecutive days in which Inventory available to DoubleClick falls more
than [*]% below the level to which Company is otherwise obligated
herein (an "Inventory Default"), DoubleClick may make formal, written
demand (an "Inventory Demand") to Company to cure such Inventory
Default. If Company fails to cure such Inventory Default within seven
(7) days of its receipt of such Inventory Demand, then DoubleClick may
request that Company remit to DoubleClick any unearned portion of the
Advance (a "Payment Demand"). If Company fails to remit such demanded
portion of the Advance (the "Demanded Amount") within five (5) days of
its receipt of such Payment Demand, then Company shall immediately
provide to DoubleClick, and DoubleClick shall be entitled to enter with
a court of competent jurisdiction, a consent judgment against Company
for the Demanded Amount.
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[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED FROM THE PUBLIC FILING
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED
PORTIONS.
III. TERM/TERMINATION
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A. Except as otherwise provided herein, the term (the "Term") of this
Agreement shall commence on the Effective Date and shall continue in
effect for so long as a balance remains outstanding for the Advance or
two (2) years from the Effective Date, whichever is earlier, unless
otherwise terminated by the parties as set forth below; provided,
however, that if a balance remains outstanding at the end of such two (2)
year period, Company agrees to refund to DoubleClick the remaining,
unused portion of the Advance (calculated in accordance with Section
IV.A) within five (5) business days of such termination.
B. If, during any month of the Term, the average click-through rate for the
Inventory on the Web Site for such month drops below 0.2% (the "Initial
Month"), DoubleClick may provide Company with written notice of its data
in support of such finding, and if, after receipt of such notice, the
click-through rate for all inventory for the Initial Month and the
following two (2) months (three (3) months in total) is still below 0.2%,
DoubleClick shall have the right, upon prior written notice to Company,
to terminate this Agreement (the "Termination Right"). The parties agree
that if, during the Term, Company should require its users to click on
Advertisements as a condition to receiving Company's service and/or
products, the click-through rate described above shall be calculated
excluding all such required clicks. If DoubleClick exercises the
Termination Right, Company agrees to refund to DoubleClick the remaining,
unused portion of the Advance (calculated in accordance with Section
IV.A) within five (5) business days of such termination.
C. Either party shall have the right to immediately terminate this Agreement
in the event that (i) the other party commits a material breach of this
Agreement and such breach is not cured by the breaching party within
thirty (30) days of its receipt of written notice describing such breach
from the non breaching party, or (ii) the other party is adjudged
insolvent or bankrupt; or a proceeding is instituted by the other party
seeking relief, reorganization or arrangement under any laws relating to
insolvency; or a proceeding is instituted against the other party seeking
relief, reorganization or arrangement under any laws relating to
insolvency that is not dismissed within sixty (60) days; or the other
party makes an assignment for the benefit of its creditors; or upon the
appointment of a receiver, liquidator, or trustee of any of the other
party's property or assets, or upon liquidation, dissolution or winding
up of the other party's businesses. Finally, DoubleClick shall have the
right to terminate this Agreement (i) upon thirty (30) days written
notice to Company if Company has a cumulative shortfall in inventory in
three Shortfall Months which is below the amount of inventory requested
by DoubleClick for such three Shortfall Months by greater than [*]
percent ([*]%), or (ii) immediately if Company has terminated the DART
Agreement for convenience in accordance with Section 10.3 of the DART
Agreement. Further, either party may terminate immediately at either
party's election if (A) the DART Agreement is terminated for
3
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED FROM THE PUBLIC FILING
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED
PORTIONS.
cause, or (B) with respect to a DoubleClick termination right, in the
event that an entity who owns, either directly or indirectly, an Internet
advertising solution, that is widely regarded by recognized Internet
industry analysts as a direct competitor of DoubleClick, or with respect
to a Company termination right, in the event that an entity who owns,
either directly or indirectly, an Internet service that is widely
regarded by recognized Internet industry analysts as a direct competitor
of Company, acquires or is acquired by (i) Company or DoubleClick, as
applicable, through a merger or consolidation pursuant to which the
stockholders of Company or DoubleClick, as applicable, immediately prior
to such merger or consolidation will not own, immediately after such
merger or consolidation, at least 40% of the voting power of the
surviving entity's voting securities, whether or not such entity is
Company or DoubleClick, as applicable; (ii) securities representing a
majority of Company's or DoubleClick's, as applicable, voting securities
as a result of a tender or exchange offer, open market purchase,
privately negotiated purchases, share exchange, extraordinary dividend,
acquisition, disposition or recapitalization (or series of related
transactions of such nature) (other than a merger or consolidation), and
(iii) all or substantially all of Company's or DoubleClick's, as
applicable, assets. In the event of any termination of the Agreement by
either party pursuant to this Section III.C., Company agrees to refund to
DoubleClick the remaining, unused portion of the Advance (calculated in
accordance with Section IV.A) within (i) five (5) business days of such
termination if this Agreement is terminated by DoubleClick, and (ii) if
this Agreement is terminated by Company, thirty (30) days from (1)
DoubleClick's admission of material breach and Company's right to
terminate, or (2) judgment by a court of competent jurisdiction of
DoubleClick's material breach and Company's right to terminate.
D. If during any month of the Term, the Ad Display Time for a material
amount of the Inventory falls below twenty (20) seconds at any time, (the
"Ad Delivery Default"), DoubleClick's sole and exclusive remedy shall be
to terminate this Agreement upon thirty (30) days prior written notice to
Company; provided, however, that such termination right shall not apply
if Company is able to cure the Ad Delivery Default within such thirty
(30) day notice period, such that all Inventory has an ad delivery time
of twenty (20) seconds or above. If DoubleClick exercises such a
termination for an Ad Delivery Default, Company agrees to refund to
DoubleClick the remaining, unused portion of the Advance (calculated in
accordance with Section IV.A) within five (5) business days of such
termination.
E. Company shall have the right to terminate this Agreement on six (6)
months prior written notice to DoubleClick if during at least three (3)
months of the Term, the average CPM rate that DoubleClick charged
Advertisers for Advertising on the Web Site during that month is less
than the average CPM rate that Company charged its advertisers for
advertising throughout all channels on the Web Site during that same
month, as such CPM rates are calculated at least thirty (30) days after
the applicable month. In the event of termination of this Agreement by
Company pursuant to this Section III.E., Company agrees to refund to
DoubleClick the remaining, unused
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portion of the Advance (calculated in accordance with Section IV.A)
within five (5) business days of such termination.
F. If DoubleClick exercises the Termination Right in accordance with Section
III.B. or Company terminates the Agreement in accordance with Section
III.C.- or III.E., Company shall have the right, within four (4) weeks of
the applicable notice of such termination, to provide DoubleClick with
six (6) months prior written notice of Company's election to terminate
the DART Agreement.
G. Upon termination or expiration of this Agreement, all rights of
DoubleClick to sell and deliver Advertisements under this Agreement shall
cease. Sections VI, and the Standard Terms and Conditions will survive
any expiration or termination of this Agreement.
IV. COMPENSATION/PAYMENT
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A. With respect to the placement and delivery of Advertising, the parties
agree that Company shall deduct from the Advance, [*] percent ([*]%)
percent of the Net Revenues generated on Advertising which is delivered
through the Service to the Web Site. The Net Revenue for a given month
of the Term, along with the applicable deduction amount described above
for such month, shall be set forth in Company's "Site Compensation
Report" provided by DoubleClick to Company within five (5) days after
each month of the Term. Company may only deduct its share of Net
Revenues for a given month in which Advertisers' Advertising is delivered
to the Web Site forty-two (42) days following the end of such month in
order to account for the timing of revenue collections by DoubleClick.
Notwithstanding the foregoing, upon expiration or termination of this
Agreement, Company shall be entitled to deduct from the Advance all
amounts earned for Advertisements delivered up to the date of
termination. DoubleClick shall provide Company with a final Site
Compensation Report on the date of termination or expiration of this
Agreement in order to permit Company to deduct all amounts earned from
the Advance and calculate the unearned balance of the Advance.
B. Company shall be solely responsible for any costs or expenses it incurs
in connection with the Service or performance of its obligations under
this Agreement including, without limitation, expenses associated with
any HTML programming and linking the Web Site to the Service.
C. Company agrees to pay DoubleClick on a monthly basis within fifteen (15)
days of the end of each month, an interest payment (calculated using a
ten percent (10%) annual interest rate) on the portion of the Advance
that remains outstanding after each month of the Term.
D. Upon reasonable prior notice and during normal business hours, Company
may inspect the records of DoubleClick on which the Net Revenues are
calculated and the
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[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED FROM THE PUBLIC FILING
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED
PORTIONS.
deductions from the Advance under this Agreement are based no more than
twice per calendar year and once within one (1) year after termination of
this Agreement. Such audit shall be conducted by a nationally-recognized
independent certified public accountant selected and paid for by Company.
If, upon performing such audit, it is determined that DoubleClick, in the
Site Compensation Report, has understated the amount of Net Revenues to
be deducted from the Advance, such accountant will indicate to
DoubleClick and Company the amount of the understated deduction within
five (5) days of completion of the audit. If such understated deduction
exceeds five percent (5%) of the amounts meant to be deducted by Company
in the period being audited, DoubleClick shall bear all reasonable
expenses and costs of such audit.
V. COMPANY OBLIGATIONS AND RIGHTS
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A. Company agrees to effect all necessary HTML programming with respect to
the Web Site in accordance with the HTML modifications (the "HTML
Modifications") mutually agreed upon by DoubleClick and Company so as to
enable DoubleClick to perform its obligations under this Agreement.
DoubleClick and Company shall mutually agree upon the Spots on the Web
Site.
B. Company will maintain its Web Site at a quality standard that is no less
than the standard that exists as of the date of this Agreement.
C. Company agrees that DoubleClick has no responsibility to review the
contents of the Web Site.
D. Company shall have the right to ban and remove Advertising from the Web
Site, and to establish domain restrictions to prevent delivery of
Advertising linked to certain domains, by accessing the Manage Site
Application (located at xxx.xxxxxxxxxxx.xxx). Company, in its
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discretion, shall have the right to explicitly approve Advertisements
before they are served to the Web Site or remove Advertisements once they
have begun to be served on the Web Site.
VI. DOUBLECLICK OBLIGATIONS AND RIGHTS
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A. Subject to V.D. above and the other terms and conditions of this
Agreement, DoubleClick shall determine in its sole discretion, which
Advertisers shall have access to the Service.
B. Company has the sole and exclusive ownership and right to use all data
derived from the Parties' use of the Service for purposes of executing
this agreement ("Data"); provided that DoubleClick may use and disclose
only the aggregate number of ads delivered throughout the Service (other
than personally-identifiable information) derived from Company's use of
the Service only (i) for DoubleClick's reporting purposes, consisting of
compilation of aggregated statistics about the Service such that Company
is not identifiable that may be provided to customers, potential
customers and the general public; (ii) and if required by court order,
law or governmental
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agency. DoubleClick may not sell, lease or use the Data for commercial
gain or profiling of user behavior, except that DoubleClick may use "IP
Address" data of Company's users (all of which is non-personally
identifiable) for DART targeting purposes. DoubleClick agrees that in no
event shall any information by which individual users accessing Company's
advertising through the Service can be identified, contacted or grouped
by name, e-mail address or other personal or individual characteristics
(including, but not limited to, user registration information collected
by Company) ("User Info") be used or disclosed by DoubleClick or used by
any third party without Company's prior written consent. In addition, in
no event shall DoubleClick disclose Company's Confidential Information
(as defined in Section 5 of the Standard Terms and Conditions) to any
third parties. DoubleClick may collect the following Data and User Info
through the Service for the sole and exclusive purpose of providing
Company with the Service: Browser Type, Browser Version, Browser
Language, Operating System, Time of Day, Date, User IP, Geographic
Location, Area code, Zip code, Country, SIC Code, Domain, Domain type,
and Ad Frequency. Should DoubleClick desire to collect additional User
Info or Data through the Service, DoubleClick shall obtain Company's
prior written consent and the parties shall mutually agree on
DoubleClick's permitted use of such information. DoubleClick shall not
collect or use User clickstream behavior data. The parties agree that
the terms of this Section 8 shall survive termination of this Agreement.
C. DoubleClick will make site reports available to Company through
DoubleClick's web site (xxx.xxxxxxxxxxx.xxx) listing the number of
Impressions and click-over rates on the Web Site.
D. It is understood and agreed that, subject to Section III.E, DoubleClick
shall determine the rate card (and any applicable discount) charged to
said Advertisers for delivery of Advertising.
E. DoubleClick agrees that Company has no responsibility to review the
contents of the Advertising.
DOUBLECLICK INC. COMPANY
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxx Xxxxxxxx
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(Signature) (Signature)
Name: Xxxx Xxxxxxx Name: Xxxx Xxxxxxxx
Title: Executive Vice-President Title: Vice-President, Business
Development
Dated: November 11, 1999 Dated: November 11, 1999
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STANDARD TERMS AND CONDITIONS
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1. No Assignment. Neither party to this Agreement shall sell,
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transfer or assign this Agreement or the rights or obligations hereunder, other
than to a parent or subsidiary, without the prior written consent of the other
party. Notwithstanding the foregoing, either party shall have the right to
transfer or assign this Agreement to a third party successor-in-interest, which
for the purposes of this Section shall mean any third party which acquires all
or substantially all of the assets of either party, or more than 75% of the
outstanding stock of such party, whether by sale, consolidation, merger or
otherwise. Any act in derogation of the foregoing shall be null and void.
2. Proprietary Rights. Company understands and agrees that Company
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shall not have, nor will it claim, any right, title or interest in and to any
Advertising (other than its own Advertising), the Service or any elements
thereof (including, without limitation, the grant of a license in or to the
Service or any software, source codes, modifications, updates and enhancements
thereof or any other aspect of the Service), the name "DoubleClick" or any
derivatives thereof, or any other trademarks and logos which are owned or
controlled by DoubleClick and made available to Company through the Service or
otherwise. DoubleClick understands and agrees that DoubleClick shall not have,
nor will it claim, any right, title or interest in and to the Web Site, the name
"All Advantage" or any derivatives thereof, or any other trademarks and logos
which are owned or controlled by Company and made available to DoubleClick
through the Service or otherwise.
3. Representation and Indemnity. Company warrants and represents at
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all times that Company (i) has the right and full power and authority to enter
into this Agreement, to grant the rights herein granted and fully to perform its
obligations hereunder, (ii) owns the Web Site and that such Web Site will not
infringe upon or conflict with the copyright, trademark, trade secret or issued
U.S. patent held by any third party, and (iii) owns and/or has the right to use
all materials contained on the Web Site (other than the Advertising), including,
without limitation, all copyrights, trademarks and other proprietary rights in
and to such materials. In furtherance of the foregoing, Company agrees to
indemnify and hold DoubleClick and the Advertisers harmless from and against any
and all claims, actions, losses, damages, liability, costs and expenses
(including reasonable attorneys' fees) arising out of or in connection with (i)
the breach of any representation, warranty or agreement made by Company
hereunder and/or (ii) the Web Site or DoubleClick's use of the Targeted
Inventory. DoubleClick shall promptly notify Company of all claims and
proceedings related thereto of which DoubleClick becomes aware. DoubleClick
warrants and represents at all times that DoubleClick (i) has the right and full
power and authority to enter into this Agreement, to grant the rights herein
granted and fully to perform its obligations hereunder, and (ii) owns the
Service and that such Service will not infringe upon or conflict with the
copyright, trademark, trade secret or issued U.S. patent held by any third
party. In furtherance of the foregoing, DoubleClick shall indemnify, defend and
hold Company harmless from and against any and all claims, actions, losses,
damages, liabilities, costs and expenses (including reasonable attorneys' fees)
resulting from or arising out of or in connection with (i) the breach of any
representation, warranty or agreement made by DoubleClick hereunder and/or (ii)
the Service. Company shall promptly notify DoubleClick of all claims and
proceedings related thereto of which Company becomes aware. DoubleClick will
include in its standard insertion order which it provides to Advertisers a
provision requiring such Advertisers to agree to indemnify DoubleClick and
Company with respect to any Advertising delivered to the Web Site. In the event
a claim or action is brought against Company with respect to Advertising placed
on the Web Site through the Service, then DoubleClick shall, upon Company's
prior written request, assign to Company the right to pursue any applicable
remedies and causes of action which DoubleClick has against such Advertiser.
DoubleClick also agrees to indemnify, defend and hold Company harmless from any
Claims with respect to Advertising delivered to the Web Site, provided said
Claims arise out of or in connection with DoubleClick's failure to obtain from
an Advertiser an agreement requiring said Advertiser to indemnify and hold
Company harmless from and against any Claims arising out of such Advertising.
4. No Warranties/Liabilities. EXCEPT AS EXPRESSLY PROVIDED ABOVE,
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NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS OF THE SERVICE OR
THE WEB SITE FOR A PARTICULAR PURPOSE INCLUDING, WITHOUT LIMITATION, THE TYPE
OF
ADVERTISING OR AMOUNT OF ADVERTISING WHICH WILL BE DELIVERED TO THE WEB SITE
THROUGH THE SERVICE. EXCEPT AS EXPRESSLY PROVIDED ABOVE, DOUBLECLICK SHALL NOT
BE LIABLE FOR ANY ADVERTISERS WHOSE ADVERTISING APPEARS ON THE SERVICE, NOR THE
CONTENTS OF ANY ADVERTISING, NOR SHALL DOUBLECLICK BE LIABLE FOR ANY LOSS, COST,
DAMAGE OR EXPENSE (INCLUDING COUNSEL FEES) INCURRED BY COMPANY IN CONNECTION
WITH COMPANY'S PARTICIPATION IN THE SERVICE. NEITHER PARTY SHALL BE LIABLE TO
THE OTHER PARTY FOR ANY TECHNICAL MALFUNCTION, COMPUTER ERROR OR LOSS OF DATA OR
OTHER INJURY, DAMAGE OR DISRUPTION TO COMPANY'S WEB SITE OR THE SERVICE. IN NO
EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT,
INCIDENTAL OR CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN
RELATION TO THIS AGREEMENT.
5. Confidentiality. Any information relating to or disclosed in the
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course of this Agreement by either party (the "Disclosing Party") to the other
party (the "Receiving Party"), which is or should be reasonably understood to be
confidential or proprietary to the Disclosing Party, including but not limited
to, the material terms of this Agreement, information about the Service or the
Web Site and technical processes and formulas, source code, product designs,
sales, cost and other unpublished financial information, product and business
plans, projections, marketing data, Company member data and targeting
information provided or impression data collected under this Agreement shall be
deemed "Confidential Information" and shall not be used, disclosed or reproduced
by the Receiving Party without the Disclosing Party's prior written consent.
"Confidential Information" shall not include information (a) already lawfully
known to or independently developed by the Receiving Party, (b) disclosed in
published materials, (c) generally known to the public, (d) lawfully obtained
from any third party, or (e) required to be disclosed by law. Notwithstanding
the foregoing, Company shall be entitled to disclose the existence of and the
terms of this Agreement to investment bankers and potential investors of the
Company, so long as such disclosure is done under an obligation of
confidentiality. Upon termination or expiration of this Agreement, each party
shall return to the other, or destroy, at the Disclosing Party's option, all
Confidential Information of the other party in its possession or control.
6. Miscellaneous. Notwithstanding any provision hereof, for the
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purpose of this Agreement each party shall be and act as an independent
contractor and not as an employee, partner, joint venturer, or agent of the
other and shall not bind nor attempt to bind the other to any contract.
This Agreement, including the Standard Terms and Conditions, represents the
entire understanding between DoubleClick and Company regarding DoubleClick's
services and supersedes all prior agreements. No waiver, modification or
addition to this Agreement shall be valid unless in writing and signed by the
parties to this Agreement. Notwithstanding the foregoing, DoubleClick shall
have the right to modify or make additions to the placement algorithm governing
Advertising delivery and the HTML Modifications, from time to time upon
reasonable prior written notice to Company and Company, acting reasonably, shall
be entitled to reject any such modifications.
If any provision of this Agreement shall be adjudicated 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 the other provisions shall
be unaffected.
If the performance of this Agreement, or any obligation hereunder, except the
making of payments, is prevented, restricted or interfered with by any act or
condition whatsoever beyond the reasonable control of the affected party, the
party so affected, upon giving prompt notice to the other party, shall be
excused from such performance to the extent of such prevention, restriction or
interference.
This Agreement may be executed in two or more counterparts each of which shall
be deemed to be an original, but all of which together shall constitute one and
the same instrument.
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7. Applicable Law. This Agreement shall be governed by and
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construed in accordance with the substantive laws of the State of New York and
Company agrees that jurisdiction and venue of all matters relating to this
Agreement shall be vested exclusively in the federal, state or local courts
within the State of New York.
8. Definitions. "Advertiser" is defined as a company, entity or
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individual which provides Advertising to DoubleClick for distribution through
the Service to the Web Site. "Advertising" or "Advertisement" is defined as
third party "banners" of Advertisers which are sold by DoubleClick under this
Agreement and delivered via the Service to the Web Site. "Impression" is defined
as occurring each time Advertising appears on the Web Site resulting from a user
accessing or visiting such Web Site. "Net Revenues" is defined as the gross
xxxxxxxx earned from Advertisers by DoubleClick less (i) actual rate card and
volume discounts and agency commissions, and (ii) a bad debt allowance of four
percent (4.0%) of said gross xxxxxxxx. "Service" is defined as the DoubleClick
service that delivers Advertising to the Web Site. "Spot" is defined as the
specific place on the Web Site where Advertising may appear through the Service.
"Web Site" is defined as the Company's "Viewbar" technology.
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EXHIBIT A
Minimum Inventory Levels
11/99 [*] (as pro-rated for the portion of the month after the Web Site
has received the HTML Modifications)
12/99 [*]
1/00 [*]
2/00 [*]
3/00 [*]
4/00 [*]
5/00 [*]
6/00 [*]
7/00 [*]
8/00 [*]
9/00 [*]
10/00 [*]
11/00 [*]
12/00 [*]
The parties agree to negotiate in good faith additional Minimum Inventory Levels
for the Year 2001, if necessary because an Advance balance remains outstanding,
at least thirty (30) days prior to December 31, 2000.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED FROM THE PUBLIC FILING
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED
PORTIONS.
