EXHIBIT 10.4
AGREEMENT FOR AVAILABILITY OF ADVERTISING SPACE BETWEEN SERVER AND
TELECOMUNICACOES DE SAO PAULO S.A. - TELESP - ADHESION AGREEMENT.
MODEL
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REQUEST FOR REGISTRATION OF STANDARD OR MODEL AGREEMENT
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ILLUSTRIOUS REGISTRAR OF THE PUBLIC REGISTRY OF DOCUMENTS AND CIVIL REGISTRY OF
LEGAL ENTIITES OF THE CAPITAL
TELECOMUNICACOES DE SAO PAULO S/A - TELESP- with its address at Rua ▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇, n(0) 851, in this Capital, undersigned, comes before Your Honor to
request the REGISTRATION of the attached document of: AGREEMENT FOR AVAILABILITY
OF ADVERTISING SPACE.
It requests granting of the above.
Sao Paulo, August 22, 2003.
Signed by: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
National Registry of Individuals:
Identity Card:
THREE STAMPS OF THE 2ND REGISTER OF DOCUMENTS AND CIVIL OF LEGAL ENTITIES.
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AGREEMENT FOR AVAILABILITY OF ADVERTISING SPACE
ENTERED INTO
BETWEEN
TELECOMUNICACOES DE SAO PAULO S.A.
AND
SERVER
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AGREEMENT FOR AVAILABILITY OF ADVERTISING SPACE
Through this present private instrument, the Parties:
(a) TELECOMUNICACOES DE SAO PAULO S.A., a limited liability company with its
main place of business in the City of Sao Paulo, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇, enrolled in the National Registry of Legal Entities under n(0)
02.558.157/0001-62, in this act duly represented pursuant to its Bylaws,
hereinafter simply called "TELESP",
and
(b) SERVER, duly qualified in the Request for Services, which is an integrant
inseparable party to this Agreement, hereinafter simply called "SERVER"; and,
when jointly with TELESP, "Parties".
WHEREAS
The SERVER provides services related to the world computer net ("Internet"),
such as the Internet access service and the supply of editorial commercial
content, as well as content of other natures to the Internet through its
Internet portals, accessible in its electronic address ("www"), simply called
"PORTAL";
The SERVER is a company in the Internet market portals and, due to its audience
and coverage, it grants great visibility to products and services of advertising
clients in general, and which also has an expressive subscribers basis;
TELESP is interested in displaying its trademarks and products to the SERVER's
subscribers market;
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TELESP has published in the site ▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇/▇▇, on July 7, 2003 its
Promotional Plan for Supplying Access Infra-Structure to Narrowband Internet
Services ("Promotional Plan"), subsequently complemented on July 22, 2003;
The SERVER is interested in adhering to such Promotional Plan's terms and
conditions; and
The SERVER fulfills the conditions set forth in the Promotional Plan for Hiring
Advertising Space by TELESP.
In witness whereof, the Parties decide to enter into the present Agreement for
Availability of Advertising Space ("Agreement"), through the execution of the
Request for Services, which will be governed by the following clauses and
conditions:
1. OBJECT
1.1. This Adhesion Agreement has as its purpose hiring advertising space, by
TELESP, in the SERVER'S PORTAL to release advertising of trademarks of
TELESP ownership or of its direct or indirect controlling, controlled or
colligate companies, provided that the provisions of Clause 2.1. and its
Sub-Clauses hereinbelow are complied with.
1.2. It is hereby set forth that the SERVER shall not release TELESP
advertising or advertising of its direct or indirect controlling,
controlled or colligate companies, which are the SERVER's competitors.
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2. VALUES AND FORM OF PAYMENT.
2.1. TELESP will monthly pay the SERVER, for the advertising space made
available, pursuant to the terms of this Agreement, the amount
calculated in accordance with Exhibit II to the present Agreement,
2.1.1. Each Party will bear the taxes of its responsibilities, in
accordance with the legislation in force, no kind of repassing
of taxes being admitted, including related to the creation of
new levying taxes or to modifications in the levying rules
(whether modification on the calculation basis or of the
aliquots).
2.2. The monthly amount defined in Clause 2.1. will be readjusted every
twelve (12) months, as of the current date, in the event of the
Agreement extension, by the variation of the IGP-DI [General Price
Index- Internal Availability], released by the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Foundation, or, in case of that index extinction, by another index that
will eventually legally replace it.
2.2.1. In case the legislation eventually allows, the re-adjustments
which item 2.2 above refers to, will occur in the least
periodicity possible.
2.3. The amounts to be monthly paid by TELESP to the SERVER will be monthly
calculated in accordance with the strictest terms of Exhibit II, so as
to reflect the quantity of the SERVER's subscribers exposed to the
hired advertising ("Target Public").
2.3.1. It is hereby set forth that TELESP will pay the SERVER the
aforementioned values solely for the Ports which provide the
occupation set forth in Exhibit 2 to this Agreement.
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2.4. TELESP will make available to the SERVER, until the fifth (5th) day of
the month subsequent to the invoicing cutting date of the Dial Provider
and/or E1 services ,a statement report ("Statement Report") containing
the total amount of Dial Provider Ports and/or E1s, with the occupation
established in item 1 of Exhibit II to this Agreement ("Statement
Report"), occurred the previous month.
2.4.1. The SERVER shall invoice the amounts to be paid by TELESP by
virtue of the present Agreement, in accordance with the
Statement Report, in up to two (2) days subsequent to its
receipt, with maturity date on the twelfth (12th) of each
month.
2.4.1.1. The amounts related to this Agreement's first and
last month will be invoiced PRO RATA DIE.
2.4.2. TELESP shall make the respective payment through credit in
bank current accounts, to be informed by the SERVER in the
Request for Services.
2.4.3. The deposit vouchers in the SERVER's favor will be considered
as able documents for evidencing the acquittal of the payments
due by TELESP.
2.4.4. Subsequently to the invoicing of the amounts stated in the
Statement Report, the SERVER may challenge, with justication,
TELESP's report within up to ten (10) days, counted as of such
invoicing date.
2.4.5. TELESP will have a (10) ten-day term, counted as of the
receipt of the SERVER's challenge to appraise and adjudge such
challenge, informing the SERVER within the same period of
time.
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2.4.6. In case TELESP considers that the SERVER's challenge of the
Statement Report has grounds, the SERVER shall, in the
following month's invoice, include the amounts resulting from
the challenge verification, added of the charges set forth in
item 2.6, calculated on the basis of the overcharged
difference..
2.5. If, after TELESP's decision about the SERVER's challenge, the
divergence between the Parties still persists, the issue shall be
solved in accordance with the terms of Clause 10 hereinbelow.
2.6. Assuming that the payments established in this Clause are not honored
on the date herein agreed upon, there will levying on the amount of the
portion due, independently of notification, of fine for payment on
arrears of two per cent (2%) or of the maximum percentage allowed by
the legislation in force that may eventually replace it, a single time,
and fine for payment on arrears of one per cent (1%) per month or
fraction of month, as well as monetary restatement verified by the
variation of the General Index of Prices - DI (IGP-DI), released by the
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Foundation, as of the maturity date until the date of
the effective payment. In the absence of that index, the official index
that eventually replaces it, will be applied to the Agreement,
calculated PRO RATA DIE., .
2.6.1. In the hypothesis of failure of payment for a period of thirty
(30) consecutive days, independently of notification, the
SERVER will be freed from the duty to make available the
advertising space hereby hired, regarding the unpaid amounts.
3. ADVERTISING
3.1. The advertising spaces must be assigned by the SERVER in its Home Page
and on the other pages of its site.
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3.2. The advertising spaces must be assigned exclusively to TELESP or to its
direct and indirect controlling, controlled or colligate companies for
all its products, exception made to the products which directly compete
with the SERVER's, being agreed that TELESP, at its exclusive
discretion, will define the content of the advertising releases.
3.3. At TELESP's discretion, it will inform with ten (10) working days in
advance, through each campaign's Media Plan, the channels to be used,
in accordance with the specific needs, provided that the provisions of
Exhibit I to this Agreement are complied with and the SERVER's
inventory availability is respected. The Parties agree that the
advertisements format, intensity and releasing period, contained in
Exhibit I, can be changed, of common concord between the Parties.
3.4. For releasing purposes, the formats mentioned in Exhibit I, as well as
the new formats that may eventually appear, promoting TELESP's products
and services and those of its direct or indirect controlling,
controlled or colligate companies, provided that this is previously
agreed upon, in writing, between the Parties, will be considered as
advertising formats.
3.5. TELESP shall supply the SERVER with the material to be released, within
up to five (5) days prior to the intended release, and TELESP can
replace the supplied material, at its exclusive discretion, provided
that it advises the SERVER within, at least, five (5) days in advance,
as of the material replacement.
3.6. Insertions will be bound to the use of the price list for advertising
release, in accordance with Exhibit I.
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3.7. The SERVER commits to make the hired spaces monthly available to
TELESP, pursuant to the terms of this Agreement, equivalent to, at
least, fifty per cent (50%) of the monthly value mentioned in Clause 2
above and in Exhibit II.
3.8. TELESP commits to use, every three (3) months, counted as of this
Agreement execution date, at least fifty per cent (50%) of the monthly
value mentioned in Clause 2 above and in Exhibit II. The spaces
corresponding to the remainder fifty per cent (50%) and possibly unused
along the three (3) months of compulsory release, must always be used
in the three (3) subsequent months.
3.9. The Parties commit to program the form and term of usage of the hired
spaces, which were occasionally unused, during the Agreement's
validity, ninety (90) days prior to the Agreement expiration, so that
the possible programmed spaces, unused until then, are used throughout
the subsequent quarter of year, even if subsequently to the Agreement
expiration.
3.10. The SERVER will make a report of its ad-server available to TELESP,
herein understood as an inside control tool of the advertising
campaigns, through an exclusive access password, so that the latter can
verify the effective use of the advertising hereby hired.
4. LINKS
4.1. The SERVER shall keep links in its respective PORTALS for direct access
to the TELEFONICA Portal, accessible through the address
▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇, through the inclusion of banners or any other
form of advertising active release.
4.2. The Parties hereby agree that the links mentioned in item 4.1
hereinbefore will not be able to direct users to the Portals of
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TELESP's companies or to those of its direct or indirect controlling,
controlled or colligate companies, which are the SERVER's competitors.
5. RESPONSIBILITIES OF THE PARTIES
5.1. The Parties will appoint its respective, duly qualified,
representatives for the purposes of this Agreement, who will be
responsible for the technical information interchange between the
Parties about the release of the publicity advertisements.
5.2. TELESP will not be responsible for the services rendered by the SERVER,
being each one responsible for complying with the legislation in force
and for responding before consumers, public bodies and third parties.
5.3. The SERVER bears no responsibility for the services provided by TELESP
before its consumers, public bodies and third parties. TELESP will be
solely exclusively responsible for the content of the advertisements to
be released in the Portal, particularly concerning the compliance with
the relevant legislation, specially, albeit not exclusively, the
Consumer Protection Code, the Standard Rules of the Advertising
Activity-CENP [Executive Council of Standard Rules] and the
Self-Regulation Publicity Code of CONAR [National Council for
Advertising Self-Regulation].
5.4. Pursuant to the terms of the Promotional Plan, bound to the present
Agreement, the SERVER commits to guarantee its full fidelity with the
services of Access Infra-Structure to Narrowband Internet Services,
hired with TELESP, in accordance with the Promotional Plan, and shall
assure that the integrality of the dialed access connections to the
Internet in Region III of the GPG finishes in the CLTS [Commuted
Landline Telephone Service] network or in any other TELESP network.
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5.4.1. The fidelity commitment set forth in the Promotional Plan and
ratified in accordance with the terms of item 5.4 above, is
conditioned to the attendance, by TELESP, of the requests for
Dial Provider Ports and/or the SERVER's E1.
5.4.2. In the situations when TELESP states that it will not comply
with the requests of the Dial Provider Ports SERVER, the
latter shall, by hiring E1, assure that the integrality of the
dialed access connections to the Internet in region III of the
GPG finishes in the CLTS network or in any other TELESP
network.
5.4.2.1. In the assumptions of item 5.4.2., in case the SERVER
eventually hires E1 outside the conditions set forth
in the Promotional Plan, it will not be entitled to
any payment, as a result of having entered into this
Agreement, regarding those E1s.
5.4.3. With no loss to the provisions of item 5.4.2., whenever TELESP
fails to meet the service levels ("SLA") set forth in the
Agreement for Services Providing and in the Agreement for
Supplying Access Infra-Structure for to the Internet Services
- Dial Provider, the SERVER will be freed from the fidelity
duty established in item 5.4 above, for the localities where
the ports, the service level (SLA) of which has not been
provided.
6. VALIDITY
6.1. The present Agreement will remain valid and in force for the term of
one (1) year, counted as of the execution of the Request for Service,
date when the advertising release, hereby hired, will start, and can be
extended until December 31, 2005, through the SERVER's previous express
wish.
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6.1.1. This Agreement cannot be extended pursuant to the terms of
item 6.1 above, in case the SERVER eventually fails to comply
with any of this Agreement's conditions or those of the
Promotional Plan, or in case the Agreement for Supplying
Access Infra-Structure to the Narrowband Internet Services,
entered into by virtue of the Promotional Plan (Dial Provider
and/or E1) is eventually terminated.
7. TERMINATION
7.1. The present instrument cannot be terminated in advance by any of the
Parties, due to unjustified accusation.
7.2. Any of the Parties can terminate the Agreement in the event of:
7.2.1. Bankruptcy of the other Party;
7.2.2. Incompliance, by the other Party, with any of the duties set
forth in this Agreement, without the due remedy within a (60)
sixty-day term, counted as of the notification date to the
Violating Party;
7.2.3. Incompliance with any provision of the Promotional Plan;
7.2.4. Failure in the payment on the part of TELESP, pursuant to the
provisions of item 2.6.2.
7.3. In any assumption of termination of the present Agreement, the
Agreement for Supplying Access Infra-Structure to the Narrowband
Internet Services and the Agreement for Improvement of Telephonic
Traffic, entered into with TELESP by virtue of
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the Promotional Plan, are immediately terminated, being the Party which
has not given reason for termination, the creditor of the termination
fine set forth in those agreements, and the aforementioned fine will
have to be paid to the creditor Party within thirty (30) weekdays,
counted as of those Agreements' termination date.
7.3.1. It is hereby set forth that none of the Parties can claim any
other indemnification or compensation apart from the penalty
set forth in item 7.3 above, including losses and damages,
arisen from this instrument advanced termination.
7.4. In any event of termination of this Agreement, as well as the natural
expiration of its validity term, the Parties will be committed to
settle its duties until the termination date.
8. CONFIDENTIALITY
8.1. Both Parties, by virtue of the access they have had and will have to
the other Party's privileged or confidential information, reciprocally
commit, except for the assumptions set forth in 8.2 below:
a) not to disclose, either totally or partially, the
existence, the object and/or content of this Agreement to any
third parties whatsoever, which are not their respective
administrators, representatives, employees or consultants,
from whom it shall demand, under its exclusive responsibility,
equal confidentiality duties;
b) not to allow access of third parties to the other Party's
confidential information, apart from their administrators,
representatives, employees or consultants and to these, just
in the extension needed to allow the achievement of this
Agreement's object.
c) not to use any information, except for the purposes
established in the Agreement; and
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d) to keep full confidentiality regarding the received
information, including rigorously endeavoring to prevent
circulation of copies, e-mails, faxes and other forms of
private or public communication of such information, besides
those which are strictly needed for complying with this
Agreement.
8.2. The Parties state that there will be no violation to the provisions of
this clause, in the assumptions when:
a) the information becomes available to the public in general,
through a means that does not result in its disclosure by the
Parties or their representatives, controlling, controlled
companies or companies that, either directly or indirectly,
are subject to the same control that the Party is subject to,
which have been authorized in accordance with letter "c"
below:
b)disclosure is demanded by a governmental authority or
competent court order, under the penalty of incompliance being
featured or another penalty. In such hypotheses, the content
to be disclosed shall be object of all the applicable
governmental or judicial protection, being that the Party that
is compelled to disclose such information, must promptly
notify the other Party, about the disclosure; or
(c) the disclosure has been previously authorized, in writing,
by the other Party, in writing.
8.3. The Parties acknowledge that the provided confidential information
constitute exclusive property of the Party that has supplied such
information and disclosing such information or the fact of having
entered into this Agreement does not imply, anyhow, license,
authorization, assignment, transference, either tacit, express or
implied, of any copyright, or the right to intellectual property, idea,
concept, trademark, patent or other ownership right of the Parties.
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8.4. For the purposes of this Agreement, it is understood by confidential or
privileged information each and all information and documents of any
kind which are delivered to one of the Parties by the other Party, or
by its consultants, auditors, accountants, attorneys, representatives
and employees, which relate to the Parties' businesses or to the
businesses of their respective clients, suppliers and associates,
including, but not limiting in any way, management data, financial data
and market strategies. The Parties shall advise those to whom they
provide access to confidential information of the other Party about the
secrecy and non-disclosure duty herein agreed upon.
8.5. The Parties will remain under the obligation of keeping the strictest
secrecy regarding the confidential or privileged information obtained
by virtue of the Agreement execution, for a (5) five-year term, counted
as of its expiration.
8.6. Violation to the duties established in this Clause 8 or incompliance
with the confidentiality duties set forth in this instrument, shall
subject the infracting party to compensate all the losses incurred by
the Party damaged by such violation, being this duty to indemnify
exclusively limited to the direct, duly evidenced damages, that such
damaged Party will eventually undergo by virtue of the incompliance
with the confidentiality duties herein agreed upon.
9. OTHER CONTRACTUAL CONDITIONS
9.1. The present Agreement cannot be assigned or in anyhow transferred to
third parties by any of the Parties, without the prior express consent
of the other Party.
9.2. All the deals between the Parties related to the execution of the
present Agreement shall be made in writing, exception made to possible
verbal policies arisen due to emergencies, which shall be formalized by
the Parties, within the maximum term of five (5) days, subsequent to
the event occurrence.
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9.3. Except for an express provision otherwise, all this Agreement's terms
and conditions will expire, independently of notice or judicial or
extrajudicial notification.
9.4. Tolerance to possible infractions of the other Party to the conditions
set forth in this Agreement will not be considered as case law or
renewal or yet waiver to the rights that the legislation and the
Agreement assure to each Party.
9.5 This Agreement binds the Parties and their successors, on any account.
9.6. None of the Parties will be liable for losses and damages, particularly
incidental or indirect damages and loss of profit, nor will it
indemnify commercial failure of the other Party, nor will it be liable
for claims of third parties or clients arisen from failures occurred in
the performance of the other Party's responsibility, except for the
situations of direct damages and in those cases in which deliberate
action or omission of one Party to damage the other (malice) is
evidenced.
9.7. The present Agreement is fully bound and dependent on the terms stated
in the Promotional Plan, published by TELESP in its site:
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇/▇▇, on July7, 2003, subsequently
complemented on July 22, 2003.
9.8. The Parties agree that, in the event of conflict between the
Promotional Plan and the present Agreement, the provisions set forth in
this Agreement will prevail.
10.CONFLICT SOLVING
10.1. The Parties shall lend their best efforts towards solving, in a
friendly way, any conflicts that may eventually arise from the
execution of the present Agreement.
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10.2. The conflicts arisen from divergence towards the Statement Report to
which item 2.4 hereinbefore refers to, will be solved in the following
way:
10.2.1. In case the difference between the minutes stated in the
Statement Report delivered by TELESP and the well-founded
verification performed by the SERVER is higher than three per
cent (3%), the SERVER will be allowed, at its expenses, to
audit the verification process used by TELESP.
10.2.1.1. For the purposes of the auditing established in
item 10.2.1 above, the SERVER shall appoint
independent auditors, chosen among the four major
auditing firms in the market, to perform such
auditing.
10.2.1.2. Within thirty (30) days, counted as of the
auditors' appointment by the SERVER, TELESP shall
allow the onset of the auditing process, by
complying with the necessary conditions required
for the auditing process.
10.2.1.3. Having the auditing been concluded, the verified
amount will be compared to the amount invoiced by
the SERVER and paid by TELESP and, there being any
difference, it will be inserted in the subsequent
month invoicing.
11. VENUE
10.12. It is hereby elected the Central Court of the County of Sao Paulo - SP,
which will have jurisdiction to settle any conflicts that may arise
from this Agreement execution, with the exclusion of any other,
privileged as it may be.
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Sao Paulo, July 22, 2003.
/s/ FABIO ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ STAEL PRATA SILVA FILHO
--------------------------------- ----------------------------------
FABIO ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ STAEL PRATA SILVA FILHO
VICE-PRESIDENT EXECUTIVE VICE-PRESIDENT
COMMERCIAL -RESIDENTIAL OF STRATEGIC PLANNING
TELECOMUNICACOES DE SAO PAULO- S.A. -TELESP
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EXHIBIT 1
ADVERTISEMENT FORMAT
1. TELESP will make preferentially available two (2) advertising formats
for the release in the Portals, to which the conversion rules based on
the CPT [Cost Per Thousand] will be applied. In case there is
availability and interests of the Parties, TELESP will use
differentiated formats and models, but this has to be duly and
previously agreed upon between the Parties.
1.1. CPT means the cost per one thousand impressions released by
the Portal
1.2. The preferential formats are:
1.2.1. Full Banner: 468 pixels up to 12Kbytes.
1.2.2. Pop Up: 230 x 220 pixels up to 12 Kbytes.
1.3. TELESP will pay the amounts stated in the Chart below per
achieved CPT, in accordance with each SERVER's profile.
1.3.1. Profile Premium: SERVERS which present in their
Portals more than four hundred and fifty thousand and
one( 450,001) single visitors per month;
1.3.2. Profile Specific : SERVERS which present in their
Portals public segmentation of over 70% of their
bases. Segmentation means the homogeneous profiles of
public with merchandizing relevance (financial
institutions, specific associations, professional,
class and religious entities).
1.3.3. Profile Standard: SERVERS with more than ten thousand
and one (10,001) and fewer than four hundred and
fifty thousand and one (450,001) single visitors per
month.
1.3.4. Profile Light: SERVERS with fewer than ten thousand
(10,000) single visitors per month and/or whose
volume of monthly impressions is not sufficient for
the coverage of the payments effected by TELESP. In
this case, TELESP will use specific formats to be
uninterruptedly released in its home page, throughout
the validity of the Agreement.
CHART
---------------------------------------------------------------------
CHART- AMOUNTS
---------------------------------------------------------------------
---------------------------------------------------------------------
PROFILE FORMAT PRICES
---------------------------------------------------------------------
Full Banner R$ 20,00
Premium Pop Up R$ 15,00
---------------------------------------------------------------------
Full Banner R$ 25,00
Specifics Pop Up R$ 20,00
---------------------------------------------------------------------
Full Banner R$ 10,00
Standard Pop Up R$ 8,00
---------------------------------------------------------------------
EXHIBIT II
PRICE AND PAYMENT CONDITIONS
1. TELESP will pay the SERVER for the advertising space made available,
pursuant to the terms of this Agreement, a monthly amount of
twenty-seven REAIS and eighty CENTAVOS (R$ 27,80) per each Dial
Provider port with occupation of fourteen thousand (14,000) minutes per
month and/or the amount of six hundred and sixty-six REAIS and ninety
CENTAVOS (R$ 666,90) per each E1 with occupation of three hundred and
thirty thousand (330,000) minutes per month.
1.1. For the purposes if item 1 above, it is hereby agreed by the
Parties that each Dial Provider Port corresponds to the
audience of ten (10) users and that each E1 corresponds to the
audience of three hundred (300) users, independently of
variation.
1.2. It is understood by users, each and every subscriber or
visiting user to the SERVER's Portal.
2. The occupation of the Ports will be measured in accordance with the
provisions set forth in the Agreements for Access Infra-Structure to
the Narrowband Internet Services, entered into by virtue of the
Promotional Plan.
