EXHIBIT 10.15
Confidential treatment has been requested with respect to certain information
contained in this document. Confidential portions have been omitted from the
public filing and have been filed separately with the Securities and Exchange
Commission.
ADVERTISING SERVICES AGREEMENT
This ADVERTISING SERVICES AGREEMENT (this "Agreement"), effective as of January
1, 1999 (the "Effective Date"), by and between DoubleClick Inc., a Delaware
corporation ("DoubleClick") and Compaq Computer Corporation, a Delaware
corporation (together with its direct and indirect subsidiaries and affiliates,
"Compaq").
WHEREAS, DoubleClick and Compaq are parties to that certain Procurement and
Trafficking Agreement, dated December 19, 1996, between DoubleClick and Digital
Equipment Corporation (Compaq's predecessor-in-interest), as amended by
Amendment No. 1, dated December 16, 1997 (collectively, the "Existing
Agreement")
WHEREAS, DoubleClick and Compaq desire to replace the Existing Agreement and
DoubleClick has agreed to provide certain advertising services to Compaq for the
Alta Vista Web site currently located at the URL xxx.xxxxxxxxx.xxx (together
with all Alta Vista content pages and any successor public Internet search and
navigation Web site or pages, the "Web Site"), subject to certain terms and
conditions;
WHEREAS, subject to Section 11.8, Compaq intends to form an internal sales force
to solicit advertising for the Web Site; and
WHEREAS, in furtherance of the objectives set forth above, the parties hereto
desire to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, DoubleClick and Compaq,
intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. As used in this Agreement, the following terms shall have the
meanings specified below:
(a) "Ad Sales Service" shall mean the services provided by DoubleClick on behalf
of Compaq in relation to the Web Site pursuant to Article III.
(b) "Advertiser" shall mean a Person who provides Advertising, whether directly
or through its advertising agency, to promote itself, its brands or the products
or services that it offers.
(c) "Advertiser Contract" shall mean any contract with an Advertiser.
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(d) "Advertising" or "Advertisement" shall mean material that (i) promotes a
brand or products or services and (ii) is provided to Compaq (whether directly
or through
DoubleClick) for delivery to Users. "Advertising" or "Advertisement" shall be
classified either as a Standard Ad Unit or a Beyond-the-Banner Arrangement.
(e) "Affiliate" shall mean, with respect to any Person, any other Person that,
directly or indirectly, controls, is controlled by, or is under common control
with, such Person.
(f) "Agreement" shall mean this Agreement and the schedules, exhibits and
addenda attached hereto as the same may be amended, supplemented or modified in
accordance with the terms hereof.
(g) "Average Combined Pricing" shall have the meaning set forth in Section 4.4
of this Agreement.
(h) "Average DART Only Fee" shall have the meaning set forth in Section 4.4 of
this Agreement.
(i) "Badge" shall mean a graphical element in a fixed location on a Page
designed for the delivery of Advertising that is, as of the Effective Date,
125x125 pixels (file size up to 5K bytes), 120x60 pixels (file size up to 2K or
3K bytes), 100x40 pixels (file size up to 2K bytes), 234x60 pixels (file size up
to 6K bytes), or any other size in use prior to the Effective Date on any Page
that is a DoubleClick Represented Page under this Agreement, and shall, in all
cases, include all natural evolutions thereof. A current sample of a Badge is
attached hereto as Exhibit A.
(j) "Bad Debt" shall mean receivables for billed Net Revenues in which
collection has not been made and, in accordance with criteria set by Compaq, is
deemed uncollectable. In no event shall a receivable that is less than One
Hundred and Twenty (120) days past due be deemed uncollectable.
(k) "Banner" shall mean a graphical element in a fixed location on a Page
designed for the delivery of Advertising that is, as of the Effective Date,
468x60 pixels (file size up to 12K bytes), and shall include all natural
evolutions thereof. A current sample of a Banner is attached hereto as Exhibit
A.
(l) "Barter" shall mean the exchange or trade of any unsold inventory on the Web
Site for non-monetary consideration.
(m) "Beyond-the-Banner Arrangements" shall mean any arrangement, as now existing
or hereafter developed, for Advertising on a Page or Pages other than a Standard
Ad Unit. "Beyond-the-Banner Arrangements" include, but are not limited to, the
following: (i) ad units hereafter developed other than the Standard Ad Units
(whether or not such newly-developed ad unit requires integration with the
content on the Web Site); (ii) Pages on the Web Site that are customized so that
they include co-branding with, or sponsorship by, the Advertiser during the
course of the arrangements; and (iii) Pages on the Web Site that feature content
created or licensed from the Advertiser or another third party specifically for
the advertising campaign in question. Advertising campaigns may include both
Beyond-the-Banner Arrangements and Standard Ad Units.
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(n) "Button" shall mean a graphical element in a fixed location on a Page
designed for the delivery of Advertising that is, as of the Effective Date,
88x33 pixels (files size up to 2K bytes), and shall include all natural
evolutions thereof. A current sample of a Button is attached hereto as Exhibit
A.
(o) "Centralized Internet Ad Company" shall mean any company that is primarily
engaged in the business of targeting, measuring and delivering Advertising on
the Internet via a network of web sites all linked to the company's computers.
(p) "Comparable Customer" shall have the meaning set forth in Section 4.4 to
this Agreement.
(q) "Compaq" shall have the meaning set forth in the preamble to this Agreement.
(r) "Compaq Indemnitee" shall have the meaning set forth in Section 7.2 to this
Agreement.
(s) "Confidential Information" shall have the meaning set forth in Section 10.1
to this Agreement.
(t) "Content Zone" shall mean either (i) any section of the Web Site existing as
of the date of this Agreement that contains editorial content, whether such
content is developed by Compaq or licensed from a third party, provided that the
Standard Ad Units in such section had been sold by DoubleClick prior to the
Effective Date of this Agreement, or (ii) any currently existing section of the
Web Site that offers services to Users (e.g., translation and e-mail services)
other than services that would be offered on a Home Page, Search Results Page or
Directory Page.
(u) "Content Zone Page" shall mean any Page within a Content Zone. For purposes
of this Agreement, any Page that has attributes of a Content Zone Page shall be
deemed a "Content Zone Page", even if it also has attributes of a Directory
Page. However, any Page that has the attributes of a Content Zone Page and also
of a Home Page and/or Search Results Page shall be deemed to be a "Home Page" or
"Search Results Page" only, and shall in no event be deemed a "Content Zone
Page."
(v) "DART Service" shall mean a service provided by DoubleClick to Web site
publishers for the targeted and measured delivery of Standard Ad Units through
the System from DoubleClick's servers to specified Web sites based on criteria
selected by Advertisers.
(w) "Directory Page" shall mean any Page that contains a comprehensive directory
of Web sites, whether existing on the Web Site as of the date of this Agreement
or developed in the future. Any Page that has the attributes of a Directory Page
and of a Home Page, Search Results Page and/or Content Zone Page shall be
defined in accordance with the definitions of "Home Page", "Search Results Page"
and "Content Zone Page", and shall in no event be deemed a "Directory Page."
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(x) "DoubleClick" shall have the meaning set forth in the recitals to this
Agreement.
(y) "DoubleClick Competitor" shall mean any Person that is primarily engaged in
the business of third party online advertising sales and services; provided,
however, that a Person shall be deemed a "DoubleClick Competitor" if it owns a
division, business unit or similar entity that is primarily engaged in the
business of third party online advertising sales and services.
(z) "DoubleClick Represented Pages" shall mean any Pages for which DoubleClick
may sell Advertising pursuant to the terms of this Agreement.
(aa) "DoubleClick Indemnitee" shall have the meaning set forth in Section 7.1 to
this Agreement.
(bb) "Effective Date" shall have the meaning set forth in the preamble to this
Agreement.
(cc) "Existing Agreement" shall have the meaning set forth in the recitals to
this Agreement.
(dd) "Existing Orders" shall have the meaning set forth in Section 3.8(e) to
this Agreement.
(ee) "Home Page" shall mean the Page initially presented to the User when
accessing the primarily advertised Web Site URL. For the purposes of this
Agreement, any Page that has the attributes of a Home Page shall be deemed to be
the "Home Page," even if it also has attributes of any of the following: a
Search Results Page, Content Zone Page and/or Directory Page.
(ff) "HTML Modifications" shall have the meaning set forth in Section 3.8 to
this Agreement.
(gg) "Impression" shall mean each occurrence of Advertising on a Page resulting
from a User accessing or visiting such Page.
(hh) "Indemnitee" shall have the meaning set forth in Section 7.3 to this
Agreement.
(ii) "Indemnitor" shall have the meaning set forth in Section 7.3 to this
Agreement.
(jj) "International Ads" shall have the meaning set forth in Section 3.2(b) to
this Agreement.
(kk) "Local Ads" shall have the meaning set forth in Section 3.2(c) to this
Agreement.
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(ll) "National Ads" shall have the meaning set forth in Section 3.2(a) to this
Agreement.
(mm) "Net Payable" shall have the meaning set forth in Section 4.6 of this
Agreement
(nn) "Net Revenue" shall mean the gross xxxxxxxx invoiced by DoubleClick to
Advertisers less rate card and volume discounts, rebates, make-goods and third
party agency commissions.
(oo) "New Inventory" shall have the meaning set forth in Section 3.5 to this
Agreement.
(pp) "New Inventory Addendum" shall mean the addendum, to be signed by both
Compaq and DoubleClick, that will confirm the New Inventory that will be subject
to this Agreement and the specific arrangements for such New Inventory.
(qq) "New Web Site Area" shall have the meaning set forth in Section 3.5 to this
Agreement.
(rr) "Non-U.S. Advertiser" shall mean an Advertiser for which the primary sales
contact with respect to a given Advertising campaign is based in Advertiser's
offices outside of the United States; provided, however, that if an Advertiser
is represented by an advertising agency, the primary sales contact shall be
deemed to be the agency's primary contact in the Advertiser's organization.
(ss) "Page" shall mean a page on the Web Site that is linked to the DART
Service.
(tt) "Paid Advertising" or "Paid Advertisement" shall mean (i) Advertising which
is paid for by an Advertiser; (ii) Advertising that is provided to an Advertiser
free of charge as a component of a Paid Advertising campaign; and (iii)
Advertising provided as a make-good to an Advertiser so long as DoubleClick
shall not receive credit more than once for such make-good.
(uu) "Permitted Designees" shall mean any designee of Compaq provided that such
Person is not a DoubleClick Competitor.
(vv) "Person" shall mean any individual, firm, corporation, partnership, trust,
association, joint venture, company or other entity, or any government
authority.
(ww) "Sales Policies" shall have the meaning set forth in Section 3.11 to this
Agreement.
(xx) "Search Results Page" shall mean the Page on any section of the Web Site on
which the results of a keyword search powered by the AltaVista search engine
appear. For the purposes of this Agreement, any Page that has the attributes of
a Search Results Page shall be deemed to be a "Search Results Page" only, even
if it also has attributes of any of the following:
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Content Zone Page or Directory Page. However, any Page that has the attributes
of both a Search Results Page and Home Page shall be deemed a "Home Page" only,
and shall in no event be deemed a Search Results Page.
(yy) "Services" shall mean, collectively, the DART Service, the Ad Sales
Service, and any other service provided by DoubleClick to Compaq under this
Agreement.
(zz) "Standard Ad Unit" shall mean a Banner, Badge, Button, Toolbox or Text
Link.
(aaa) "Strategic Advertiser" shall mean any Person that enters into a Strategic
Advertising Arrangement.
(bbb) "Strategic Advertising Arrangement" shall have the meaning set forth in
Section 3.3 to this Agreement.
(ccc) "System" shall mean DoubleClick's proprietary DART software technology.
(ddd) "Term" shall have the meaning set forth in Section 5.1 to this
Agreement.
(eee) "Text Link" shall mean a hypertext link in a fixed location on a Page
designed for the delivery of Advertising that is, as of the Effective Date, a
1x1 pixel tracking gif (file size up to 1K bytes; file size for text 500 bytes
or less; no more than two lines of text, no more than 20 characters per line),
and shall include all natural evolutions thereof. A current sample of a Text
Link is attached hereto as Exhibit A.
(fff) "Toolbox" shall mean a graphical element in a fixed location on a Page
designed for the delivery of Advertising that is, as of the Effective Date,
131x190 pixels (file size up to 8K bytes), and shall include all natural
evolutions thereof. A current sample of a Toolbox is attached hereto as Exhibit
E.
(ggg) "Top Three" shall have the meaning set forth in Section 5.4 to this
Agreement.
(hhh) "Trademark Use Guidelines" shall have the meaning set forth in Section 8.1
to this Agreement.
(iii) "Unpaid Advertising" or "Unpaid Advertisement" shall mean any
Advertisement that is not a Paid Advertisement. Examples of "Unpaid Advertising"
include (i) Advertisements that promote Compaq, the Web Site, or their
respective products and services, and (ii) Advertisements Bartered by Compaq
pursuant to Section 3.6.
(jjj) "U.S. Advertiser" shall mean an Advertiser for which the primary sales
contact with respect to a given Advertising campaign is based in Advertiser's
offices in the United States; provided, however, that if an Advertiser is
represented by an advertising agency, the primary sales contact shall be deemed
to be the agency's primary contact in the Advertiser's organization.
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(kkk) "User" shall mean any Person that accesses the Web Site.
(lll) "Web Site" shall have the meaning set forth in the recitals to this
Agreement.
(mmm) "Year 1" shall mean the period from the Effective Date until December 31,
1999.
(nnn) "Year 2" shall mean the period from January 1, 2000 to December 31, 2000.
(ooo) "Year 3" shall mean the period from January 1, 2001 through the
termination of this Agreement.
(ppp) "Year 2 Excluded Advertisers" shall have the meaning set forth in Section
3.7 to this Agreement.
(qqq) "Year 3 Excluded Advertisers" shall have the meaning set forth in Section
3.7 to this Agreement.
ARTICLE II
DART SERVICE
(a) Subject to the terms and conditions of this Agreement, DoubleClick hereby
agrees to provide the DART Service to Compaq for the Web Site during the Term.
Standard Ad Units placed on the Web Site by Compaq or DoubleClick shall be
delivered exclusively by DoubleClick through the DART Service. Subject to the
fees described in Article IV, DoubleClick agrees also to deliver through the
DART Service those Beyond-the-Banner Arrangements as may be requested by Compaq.
A description of the DART Service as of the date hereof is attached hereto as
Exhibit B.
(b) DoubleClick grants to Compaq the non-exclusive and non-transferable (except
as permitted pursuant to Section 11.8) right to access and use the DART Service,
which Compaq can access and use on DoubleClick's Web servers by means of a
unique password issued by DoubleClick, and for the purposes of: (i) performing
projections of Standard Ad Unit Impression inventories that might be available
through the DART Service, (ii) uploading and storing Standard Ad Units for
delivery by DoubleClick through the DART Service, (iii) selecting trafficking
criteria for the delivery of Standard Ad Units to Users, and (iv) receiving
reports of Standard Ad Units Impressions and other data related to the delivery
of Standard Ad Units by the DART Service.
2.2 Compaq's DART Service Obligations. Compaq shall be responsible for
soliciting Advertising, except to the extent such soliciting is conducted by
DoubleClick on behalf of Compaq pursuant to this Agreement. With respect to all
Advertising sold by Compaq that is delivered through the DART Service, Compaq
shall be responsible for trafficking Advertising
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(which shall include the input of Advertising into the System) and handling all
inquiries of any type or nature. Trafficking of Advertising may be outsourced to
DoubleClick at Compaq's request and for additional fees (as set forth in Article
IV below). With respect to all Advertising sold by Compaq that is delivered
through the DART Service, Compaq shall obtain all necessary rights, licenses,
consents, waivers and permissions from Advertisers and others to allow
DoubleClick to store and deliver Advertising and otherwise operate the DART
Service on Compaq's behalf and on behalf of Compaq's Advertisers, and to use any
data provided to or collected by the System, and Compaq agrees to comply with
any further requirements of the ad insertion orders agreed with DoubleClick.
2.3 DoubleClick's DART Service Obligations. DoubleClick's sole obligations in
relation to the DART Service under this Agreement shall be (i) to make the
System available to Compaq, (ii) to deliver Advertising through the DART Service
according to the trafficking criteria selected by Compaq and Compaq's
Advertisers using the System and (iii) to provide training sessions explaining
the proper use of the DART Service and the System.
2.4 Proprietary Rights and Restrictions. DoubleClick is the exclusive supplier
of the DART Service and the exclusive owner of all right, title and interest in
and to the System, all software, databases and other aspects and technologies
related to the System and DART Service, including the System, and any
enhancements thereto. Compaq shall not use the System or any data thereby
provided except pursuant to the limited rights expressly granted in this
Agreement. Compaq shall use the System only in accordance with reference manuals
to be supplied by DoubleClick and only in accordance with DoubleClick's standard
security procedures, as posted on the DoubleClick Web site or otherwise provided
to Compaq. Compaq has the sole and exclusive right to use all data derived by
its use of the DART Service, for any purpose related to Compaq's business with
Advertisers, provided that DoubleClick may use and disclose the User data (other
than personally-identifiable information) derived from Compaq's use of the DART
Service pursuant to this Agreement only (i) for DoubleClick's reporting purposes
(consisting of the compilation of aggregated statistics about the DART Service
(e.g., the aggregate number of ads delivered) that may subsequently be provided
to customers, potential customers and disclosed to the general public; (ii) if
required by court order, law, or governmental agency (including but not limited
to, the Securities and Exchange Commission); and (iii) to the extent necessary
to integrate operation and management of the Services for the Web Site within
the operation and management of the DART Service by DoubleClick for all its
customers and otherwise for the DoubleClick Network.
ARTICLE III
ADVERTISING SALES REPRESENTATION
3.1 Compaq's Reservation of Rights. Other than the rights expressly granted to
DoubleClick in this Article III, Compaq reserves to itself and its Permitted
Designees the sole and exclusive right to sell Advertising of any type and
nature on the Web Site.
3.2 Scope of Ad Sales Representation. During the Term, subject to the
limitations stated herein, DoubleClick and its authorized representatives,
licensees and assigns shall be Compaq's sole and exclusive representative with
respect only to the following types of
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Advertising for the following types of Advertisers, and shall have the exclusive
right to enter into agreements for such Advertising on behalf of Compaq:
(a) Standard Ad Units located on the Home Page, Search Results Pages, Directory
Pages, and subject to Section 3.7(a), Content Zone Pages, offered to U.S.
Advertisers to target Users who are located in any of six or more U.S. states
specified by such U.S. Advertiser ("National Ads");
(b) Standard Ad Units and Beyond-the-Banner Arrangements on any Page, offered to
Non-U.S. Advertisers (the "International Ads"); and
(c) Standard Ad Units on any DoubleClick Represented Page, offered to U.S.
Advertisers to target Users who are located in any of five or fewer U.S. states
specified by such U.S. Advertiser ("Local Ads").
3.3 Exceptions. During the Term, DoubleClick's exclusive rights set forth above
shall be subject to the following exceptions, provided that Compaq may only
solicit and enter into the arrangements described in this Section 3.3 through
its own or its Permitted Designees efforts:
(a) With respect to the International Ads, Compaq shall have the right to enter
into Beyond-the-Banner Arrangements with Non-U.S. Advertisers;
(b) With respect to the National Ads, Compaq shall have the right to sell
listings on Yellow Page-type Directory Pages, to the extent that such Directory
Pages are not currently in existence as of the date hereof;
(c) Compaq shall have the right to sell Standard Ad Units on any Search Results
Page so long as such Standard Ad Units are but one component of a
Beyond-the-Banner Arrangement with an Advertiser that is valued for at least
$50,000 in revenue in twelve (12) month period ("Strategic Advertising
---------------------
Arrangement"); provided, however, that the aggregate number of Impressions for
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each type of Standard Ad Unit sold by Compaq on such Search Results Page in any
calendar month shall not exceed five percent (5%) of the total Impressions in
that month for that type of Standard Ad Unit on that Search Results Page; and
provided, further, that the restrictions in this Section 3.3 (c) shall not apply
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to Standard Ad Units sold by Compaq in Year 2 to Year 2 Excluded Advertisers,
and in Year 3 to Year 3 Excluded Advertisers;
(d) Compaq shall have the right to sell Standard Ad Units on any Directory Page
so long as such Standard Ad Units are but one component of a Strategic
Advertising Arrangement; provided, however, that the aggregate number of
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Impressions for each type of Standard Ad Unit sold by Compaq on such Directory
Page in any calendar month shall not exceed five percent (5%) of the total
Impressions in that month for that type of Standard Ad Unit on that Directory
Page; and provided, further, that the restrictions in this Section 3.3 (d) shall
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not apply to Standard Ad Units sold by Compaq in Year 2 to Year 2 Excluded
Advertisers, and in Year 3 to Year 3 Excluded Advertisers; and
(e) Compaq shall have the right to sell Standard Ad Units on any Home Page
so long as such Standard Ad Units are but one component of a Strategic
Advertising Arrangement; provided, however, that the aggregate number of
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Impressions for each type of Standard Ad Unit sold by Compaq on such Home Page
in any calendar month shall not exceed ten percent (10%) of the total
Impressions in that month for that type of Standard Ad Unit on that Home Page;
and provided, further, that the restrictions in this Section 3.3 (e) shall not
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apply to Standard Ad Units sold by Compaq in Year 2 to Year 2 Excluded
Advertisers, and in Year 3 to Year 3 Excluded Advertisers.
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3.4 No Other Rights. Other than as set forth in this Article III, DoubleClick
shall not have the right to place Advertising on the Web Site.
3.5 New Web Site Areas. The parties recognize that Compaq will regularly update
the design and content of the Web Site. Compaq shall keep DoubleClick informed
of all planned changes to the Web Site. As early in the process as is feasible,
Compaq shall also identify to DoubleClick the additional Standard Ad Units ("New
Inventory") in any newly-created area of the Web Site ("New Web Site Area").
Compaq and DoubleClick shall cooperate in identifying those portions, if any, of
the New Inventory that DoubleClick would have the right to sell on behalf of
Compaq and shall confirm any such arrangements by completing and signing a New
Inventory Addendum, based on the form of which that appears as Exhibit C
attached hereto. The parties will also determine and specify in the New
Inventory Addendum whether DoubleClick's right to act on behalf of Compaq in
respect of such portions of the New Inventory is exclusive, and the
circumstances under which Compaq could terminate DoubleClick's right to place
such portions of the New Inventory on behalf of Compaq.
3.6 Unsold Inventory. All unsold inventory of Standard Ad Units may be Bartered
by Compaq, subject to the fees set forth in Article IV.
3.7 Termination of Ad Sales Representation.
(a) Content Zones. Compaq shall have the option of terminating DoubleClick's
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right to sell National Ads on behalf of Compaq on a Content Zone (or any Content
Zone thereof) by providing, within thirty (30) days of the Effective Date of
this Agreement, a schedule listing each Content Zone (or Content Zone page) that
Compaq wishes to terminate, together with the date of termination for the Ad
Sales Service with respect to each such Content Zone Page; provided that no
termination shall become effective less than ninety (90) days from the date of
DoubleClick's receipt of such notice. After the first thirty(30) days of the
Term, Compaq shall have the right to terminate DoubleClick's right to place
National Ads on a Content Zone (or Content Zone Page) by giving at least 120
days prior written notice to DoubleClick. Following such termination,
DoubleClick shall continue to have the exclusive right to place Standard Ad
Units on any Search Results Pages located within a terminated Content Zone,
unless otherwise specifically prohibited by Compaq's contractual obligation
with respect to that Content Zone. Any termination pursuant to this Section
3.7(a) shall only terminate the specific rights specified in this Section and
all other rights and obligations of the parties shall continue, notwithstanding
such termination.
(b) Year 2 Excluded Advertisers. Compaq shall have the right to terminate
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DoubleClick's right to sell National Ads on behalf of Compaq in Year 2 to the
"Year 2 Excluded Advertisers" (as defined below) by giving notice to DoubleClick
by December 1, 1999. Together with such notice, Compaq shall identify the "Year
----
2 Excluded Advertisers," which shall be comprised of the following: (i) no more
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than 90 Strategic Advertisers, provided that each such Strategic Advertiser
shall have had prior to December 1, 1999 entered into agreements to purchase at
least $50,000 worth of Advertising directly from Compaq on the Web Site during
Year 1 or run on the Web Site during Year 1 (based on Year 1 year-to-date data
as of November 30, 1999) at least $50,000 worth of Advertising purchased
directly from Compaq; and (ii) no more than 10 Advertisers (which need not be
Strategic Advertisers or even then-current Advertisers on the Web Site) so long
as none of these named Advertisers is one of DoubleClick's 1999 (based on Year 1
year-to-date data as of October 31, 1999) top ten Web Site Advertisers.
Commencing January 1, 2000, Compaq would have the exclusive right to sell
National Ads (including Banners on the Search Results Pages) to the Year 2
Excluded Advertisers. Other than to the Year 2 Excluded Advertisers, and subject
to Compaq's right to terminate pursuant to Section 3.7(a) above, in Year 2,
DoubleClick would continue to sell on behalf of Compaq National Ads,
International Ads and Local Ads.
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(c) Year 3 Excluded Advertisers. Compaq would have the right to terminate
DoubleClick's right to sell National Ads on behalf of Compaq in Year 3 to the
"Year 3 Excluded Advertisers" (as defined below) by giving notice to DoubleClick
by December 1, 2000. Together with such notice, Compaq shall identify no more
than 200 Advertisers (which need not be Strategic Advertisers or even Year 2
Excluded Advertisers) to become the "Year 3 Excluded Advertisers". Beginning on
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January 1, 2001, Compaq would have the exclusive right to sell National Ads
(including Banners on the Search Results Pages) to the Year 3 Excluded
Advertisers. Other than to the Year 3 Excluded Advertisers, and subject to
Compaq's right to terminate pursuant to Section 3.7(a) above, in Year 3,
DoubleClick would continue to sell on behalf of Compaq National Ads,
International Ads and Local Ads.
3.8 Compaq's Ad Sales Service Obligations.
(a) Compaq agrees to effect all necessary HTML programming with respect to the
Web Site and Pages in accordance with the HTML modifications (the "HTML
Modifications") designated by DoubleClick so as to enable DoubleClick to perform
its obligations under this Agreement.
(b) At all times during the Term, each Search Results Page and Directory Page
shall include substantially the same number and type of Standard Ad Units as
were included on the corresponding or most closely analogous Search Results Page
or Directory Page prior to the Effective Date of this Agreement, as illustrated
on Exhibit A.
(c) Compaq agrees that DoubleClick has no responsibility to review the contents
of Pages or the Web Site.
(d) Compaq shall have the right at any time 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) of the DART Service interface or
otherwise.
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(e) Compaq acknowledges and agrees that all Standard Ad Units sold by
DoubleClick under the Existing Agreement for delivery after the Effective Date
shall be governed by the terms and conditions of this Agreement and Compaq shall
pay DoubleClick the DART Service fee, sales commission, billing and collections
fees and other fees specified under Article IV of this Agreement for all such
Standard Ad Units delivered after the Effective Date.
3.9 Dedicated Sales Specialists. Until the end of Year 2, no fewer than four
DoubleClick sales specialists, reasonably acceptable to Compaq, shall be
designated by DoubleClick as the Web Site's dedicated sales team. Promptly after
the Effective Date, DoubleClick shall use commercially reasonable efforts to
staff Web Site's dedicated sales team.
3.10 DoubleClick's Ad Sales Service Obligations.
(a) Use of Information. DoubleClick shall have the right to use for
DoubleClick's own use or for use in connection with potential Advertisers on the
Ad Sales Service, information concerning Pages, Impressions and Users accessing
Pages obtained through the Service, provided DoubleClick does not reproduce any
Pages without Compaq's prior consent.
(b) Reporting. In addition to the daily DART Service reports made available to
Compaq through DoubleClick's Web site (xxx.xxxxxxxxxxx.xxx), DoubleClick shall
furnish to Compaq on a monthly basis the following reports: (i) a list of the
Advertisers that have purchased Standard Ad Units through DoubleClick, together
with a summary of the nature of the order (type of Standard Ad Unit and
Impressions) and revenue generated from such Advertiser; and (ii) a four-month
and twelve-month forecast of the Standard Ad Units scheduled to run on the Web
Site. During the Term, DoubleClick agrees also to provide Compaq with such other
reports as Compaq may reasonably request; provided that DoubleClick shall not be
required to provide reports that are, in DoubleClick's view, unduly burdensome
to prepare. All reports and data provided by DoubleClick to Compaq are subject
to the confidentiality obligations set forth herein, and access to such reports
and data online is subject to DoubleClick's customary security procedures.
(c) Excluded Advertisers. DoubleClick agrees (i) in Year 2, not to solicit any
of the Year 2 Excluded Advertisers for the placement of Standard Ad Units on the
Web Site; and (ii) in Year 3, not to solicit any of the Year 3 Excluded
Advertisers for the placement of Standard Ad Units on the Web Site. DoubleClick
shall have the right to solicit, in Year 3, those Year 2 Excluded Advertisers
that are not also Year 3 Excluded Advertisers.
3.11 Rate Card. During the Term of this Agreement, Compaq, in consultation with
DoubleClick, shall set the rate card for all Advertising sold by DoubleClick.
The current rate card as of the Effective Date is attached hereto as Exhibit D.
In addition, Compaq, in consultation with DoubleClick, shall set the minimum and
maximum term for Advertiser Contracts and such other Advertising sales policies
and parameters for sales of Advertising on the Web Site as Compaq may notify
DoubleClick in writing from time to time, which policies and parameters shall
include credit and collections policies applicable to Advertisers (collectively,
the "Sales Policies"). Except as otherwise provided in this Agreement, the rate
card and Sales Policies for Advertising to be sold by DoubleClick on behalf of
Compaq must be
12
the same as those applied by Compaq to its own Advertising sales for the Web
Site. The parties acknowledge that the credit policies included in the Sales
Policies are not applicable to Advertising sales made by DoubleClick on Compaq's
behalf prior to the date this Agreement was fully executed by the parties.
ARTICLE IV
COMPENSATION
4.1 Payments. During the Term of this Agreement, Compaq shall pay to DoubleClick
(i) a DART Services fee for all advertising delivered by DoubleClick to the Web
Site, (ii) a sales commission based on the Net Revenues generated from all
Standard Ad Units sold by DoubleClick on behalf of Compaq, for all sales,
customer support and other services (other than billing and collections
services) that DoubleClick performs on behalf of Compaq and (iii) a billing and
collections fee for all billing and collections services performed by
DoubleClick on behalf of Compaq in relation to Standard Ad Units sold by
DoubleClick, based on the Net Revenues generated from such Standard Ad Units.
(a) Delivery of U.S. Ads. Compaq shall pay a DART fee for all Advertising that
is delivered by DoubleClick during the Term to the Web Site. For all Advertising
delivered by servers located in the U.S., DoubleClick shall charge one of the
following, as applicable:
(i) A DART Banner and Badge delivery fee of $(***) CPM for the first billion
Impressions served in each calendar month, and $(***) CPM for all Impressions in
excess of a billion served in that calendar month (for average file sizes no
larger than 12K bytes; a customary surcharge would apply to average file sizes
in excess of 12K bytes);
(ii) A DART redirect fee of $(***) CPM for Unpaid Advertisements; or
(iii) A DART Button delivery fee of $(***) CPM (for file sizes no larger than 2K
bytes).
(***) Denotes language for which AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
(b) Tracking and Trafficking Fees. In addition to one of the payments required
by Section 4.2(a) above, Compaq shall also pay the following fees to the extent
that the following Services from DoubleClick are utilized during the Term:
(i) A tracking fee of $(***) CPM for optional pixel tracking services (which
fee is applicable only to Advertising sold by Compaq); and
(ii) A trafficking fee of $(***) CPM for all advertising not placed by
DoubleClick that is trafficked by DoubleClick.
(***) Denotes language for which AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
(c) Delivery of International Ads. Due to varying and higher bandwidth costs
outside of the U.S., different DART fees shall be charged for Advertising
delivered during the Term by servers located outside of the U.S. The Year 1
international DART fee for each country is set forth on Schedule 1 attached
hereto. Compaq shall have the right to designate the country
13
from which International Ads are served. Thereafter, commencing on each December
1 during the Term (other than on December 1, 2000), Compaq and DoubleClick shall
meet to determine the international DART fee for Year 2 or Year 3, as the case
may be.
(d) Pricing for Delivery of Ads Placed by Compaq. The parties shall meet,
commencing on December 1, 1999, to determine whether the DART fees specified in
Section 4.2(a) to be in effect for Year 2 for the delivery of Advertising placed
by Compaq should be adjusted. The parties would also meet, commencing on
December 1, 2000, to determine whether the DART fees in effect in Year 3 should
be adjusted.
4.3 Ad Sales Commission and Billing/Collections Fees. Compaq shall pay to
DoubleClick (i) the sales commissions set forth below for all the Ad Sales
Service, support, and other services (other than billing and collections
services) that DoubleClick performs on behalf of Compaq and (ii) the billing and
collections fees set forth below for all billing and collections services
performed by DoubleClick in relation to Standard Ad Units sold by DoubleClick on
behalf of Compaq, in each case based on the Net Revenues generated from all
Standard Ad Units sold by DoubleClick on behalf of Compaq:
--------------------------------------------------------------------------------
Billing and Sales Commission to DoubleClick
Collections ---------------------------------------------
Period During Term Fee National Ads International Ads Local Ads
--------------------------------------------------------------------------------
Year 1 (***) (***) (***) (***)
--------------------------------------------------------------------------------
Year 2 (***) (***) (***) (***)
--------------------------------------------------------------------------------
Year 3 (***) (***) (***) (***)
--------------------------------------------------------------------------------
All sales commissions and billing and collections fees based on Net Revenue
shall be determined using the above chart and based upon the date upon which the
Standard Ad Units are sold. If a campaign continues from one calendar year into
the next, the rates applicable at the start of the campaign shall apply for the
whole campaign. For National Ads sold before any termination by Compaq of
DoubleClick's rights under this Agreement, DoubleClick shall be entitled to
receive the sales commission and billing and collections fees for those National
Ads over the life of the campaign, even if the campaign continues to run after
the effective date of Compaq's termination of those rights.
(***) Denotes language for which AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
4.4 Most Favored Nation. During the Term, subject to the requirements of this
-------------------
section, Compaq shall have the option of receiving any lower Average DART Only
Fee or Average Combined Pricing agreed to by DoubleClick with any Comparable
Customer in an Advertiser Contract that is either signed or renewed after the
Effective Date. If DoubleClick believes, on the basis of the past quarter's
payments to DoubleClick, that another DoubleClick customer is such a Comparable
Customer, DoubleClick shall promptly notify Compaq in writing of such fact.
Within thirty (30) days of such notice, Compaq shall have the right to elect to
substitute the lower DART fees or sales commission and billing and collections
fees, as the case may be, agreed to by DoubleClick with the Comparable Customer
effective as of the beginning of the current calendar quarter, provided that (i)
all payments due to DoubleClick prior to the commencement of the current quarter
shall be non-refundable and non-creditable and (ii) Compaq and DoubleClick agree
to provisions, restrictions, obligations and limitations that, compared as a
whole, are substantially comparable to those imposed on the Comparable Customer.
For purposes of this section, the following terms shall have the following
meanings:
(a) "Comparable Customer" shall mean any DoubleClick Web site publisher
customer that enters into an agreement with DoubleClick after the date this
Agreement is fully executed, pursuant to which such DoubleClick Web site
publisher customer receives overall pricing for services (calculated as the
effective pricing for all services provided by DoubleClick to such customer
after taking into account such customer's actual account experience) that is
more favorable than the overall pricing for services received by Compaq under
this agreement; provided that such DoubleClick Web site publisher customer shall
only be deemed a "Comparable Customer" if comparable to Compaq in terms of the
Banner size and bandwidth required for the Banners delivered or to be delivered.
(b) "Average DART Only Fee" shall mean the average DART Service fees paid by a
Comparable Customer for all Advertising delivered by DoubleClick but not sold by
DoubleClick during a calendar quarter.
(c) "Average Combined Pricing" shall mean the average DART Service fees, sales
commissions, billing and collections fees and other fees paid by a Comparable
Customer for all Advertising delivered and sold by DoubleClick as the Comparable
Customer's representative during a calendar quarter.
In addition, on a quarterly basis, DoubleClick shall furnish to Compaq a
certificate of an officer of DoubleClick confirming that, based on the events
and results of the prior calendar quarter, either (i) one or more Comparable
Customers exist, describing the terms relating to such Comparable Customer, or
(ii) no Comparable Customers exist.
14
4.5 Training; Sales Engineer Services. DoubleClick shall provide one training
session on the DART Service at DoubleClick's offices in New York City at no
charge to Compaq. All additional training and other DoubleClick personnel days
shall be charged for at DoubleClick's customary rates.
4.6 Invoicing. On a monthly basis, DoubleClick shall remit to Compaq the Net
---------
Payable. The "Net Payable" shall mean the sum of the cash collections for
Advertising actually received by DoubleClick during the month, less amounts
payable to DoubleClick for services rendered in respect of or based on
Advertising delivered and/or sold by DoubleClick on behalf of Compaq during the
month or still owed to DoubleClick in respect of past months: the DART Service
fees, sales commissions on amounts received, and billing and collection fees and
any other fees payable to DoubleClick pursuant to this Agreement in total. The
Net Payable will be remitted to Compaq accompanied by a xxxx for services
rendered on or before the fifteenth day following the end of the month (or on
the next business day if the fifteenth day following the end of the month falls
on a weekend or holiday).
On a calendar quarterly basis, Compaq may charge DoubleClick an amount equal
to the applicable ad sales commission multiplied by the amount of Bad Debt
charged in the applicable quarter; provided that such information shall not
exceed 1.5% of Net Revenues recorded in such quarter. Compaq shall notify
DoubleClick of the amount of such charge within thirty (30) days after the end
of calendar quarter and DoubleClick shall pay the Company the amount of such
charge within forty-five (45) days of DoubleClick's receipt of such notice.
Notwithstanding the foregoing, DoubleClick shall be charged the full amount of
Bad Debt associated with any Advertising sales made by DoubleClick on Compaq's
behalf in violation of Compaq's Sales Policies (other than deviations made with
Compaq's prior consent at the time of the sale.)
15
4.7 Opportunity Cost. All Advertising placed by Compaq shall normally be subject
to existing Advertising placements made by DoubleClick. In the unusual event
that (i) DoubleClick is required by Compaq to cancel any Advertising campaign
sold by DoubleClick on behalf of Compaq to avoid a conflict with an advertising
agreement entered into by Compaq and (ii) no alternative Advertising programs
acceptable to Advertiser are available through DoubleClick, Compaq shall remit
to DoubleClick the sales commission to which DoubleClick would have been
entitled had the campaign run its full course, by the dates such payments would
have been due hereunder assuming the cancelled Advertising had been paid when
due and Compaq shall be solely responsible for any compensation due to the
Advertiser whose Advertising campaign has been cancelled. However, the foregoing
provision shall not apply to Advertising that Compaq has identified to
DoubleClick in good faith in advance in a written notice as being unavailable,
if DoubleClick nonetheless sells such Advertising after its receipt of such
notice; it being understood that in this instance only, DoubleClick shall be
solely responsible for any compensation due to the Advertiser whose Advertising
campaign has been cancelled.
4.8 [***]
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of 1933,
as amended.
4.9 Compaq's Costs. Compaq shall be solely responsible for any costs or expenses
it incurs in connection with the Services or performance of its obligations
under this Agreement including, without limitation, expenses associated with any
HTML programming and linking Pages to the DART Service.
4.10 DoubleClick's Costs. DoubleClick shall be solely responsible for any costs
or expenses it incurs in connection with the provision of the Services or
performance of its
16
obligations under this Agreement including, without limitation, expenses
associated with any costs of operating and maintaining the DART Service.
ARTICLE V
TERM & TERMINATION
5.1 Term. This Agreement shall be for a term of three (3) years from the
Effective Date, unless terminated earlier in accordance with the terms set forth
below or until the end of the notice period required by Section 5.2 (the
"Term"). The Term shall be automatically renewed for additional twelve (12)
month periods unless there is a notice pursuant to Section 5.2 below.
5.2 Notice of Non-Renewal. In the event either party decides not to renew this
Agreement at the expiration of three (3) years from the Effective Date, or at
the expiration of any renewal period, the party that desires to terminate shall
provide the other with notice of such decision no earlier than the commencement
of Year 3 and no later than (i) ninety (90) days prior to the expiration of Year
3, for termination at the end of Year 3 and (ii) 180 days prior to the
expiration of any renewal term; provided, however, that if Compaq fails to give
the notice required by this Section, the Term and this Agreement shall continue
until DoubleClick has received the applicable period of days advance written
notice of Compaq's decision not to renew.
5.3 Termination for Breach. In the event of a material breach of a material
provision of this Agreement, the non-breaching party may give written notice of
such breach to the breaching party and if the breaching party fails to cure such
breach within ninety (90) days of receipt of such notice, the non-breaching
party may terminate this Agreement once the cure period has expired.
5.4 Termination for Certain Changes. In addition to its right to terminate
specified above, Compaq shall also have the right to terminate this Agreement if
any of the following events occur:
(a) DoubleClick is found by reputable independent sources on the basis of
verifiable data based on an analysis of a period of not less than 180 days, to
no longer be one of the top three Centralized Internet Ad Delivery Companies
measured on the basis of the aggregate number of Impressions served by each
Centralized Internet Ad Delivery Companies in such period (the "Top Three")
(b) DoubleClick ceases to operate or provide technical support for the DART
Service for a period in excess of five (5) business days;
(c) DoubleClick is adjudged insolvent or bankrupt;
(d) Institution of any proceeding by DoubleClick seeking relief, reorganization
or arrangement under any laws relating to insolvency;
17
(e) Institution of any proceeding against DoubleClick seeking relief,
reorganization or arrangement under any laws relating to insolvency that is not
dismissed within sixty (60) days;
(f) The making of any assignment for the benefit of creditors;
(g) Upon the appointment of a receiver, liquidator or trustee of any of
DoubleClick's property or assets, or upon liquidation, dissolution or winding up
of the DoubleClick's business; or
(h) In the event that a Person who owns, either directly or indirectly, a Web
site that is widely regarded by recognized Internet industry analysts as a
direct competitor of the Web Site acquires (i) through a merger or consolidation
pursuant to which the stockholders of DoubleClick immediately prior to such
merger or consolidation will not own, immediately after such merger or
consolidation, at least forty percent (40%) of the voting power of the surviving
Person's voting securities, whether or not such Person is DoubleClick, (ii)
securities representing a majority of DoubleClick's 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 DoubleClick's
assets.
5.5 Effect of Termination.
(a) Notwithstanding anything to the contrary contained herein, in the event this
Agreement is terminated and DoubleClick, prior to said termination, has entered
into any Advertiser Contracts for the delivery of Standard Ad Units to the
Pages, the duration of which Advertiser Contracts extend beyond the date on
which this Agreement has been terminated, and such Standard Ad Units continue to
be delivered after the termination of this Agreement, then DoubleClick shall be
entitled to receive (i) sales commissions and billing and collections fees for
such Standard Ad Units calculated on the basis of the applicable sales
commission and billing and collections fees that would have been due under
Section 4.3 above as of the effective date of the Advertising Contract for the
type of Standard Ad Units in question and (ii) where the parties mutually agree
that DoubleClick should continue to deliver said Standard Ad Units on behalf of
Compaq, the applicable DART Service fees specified in Section 4.2.
(b) The following provisions of this Agreement and any causes of action arising
in relation to this Agreement prior to termination, shall survive such
termination: Sections 7.1 through 7.3, 9.1, 9.2, and 10.1 and Article V.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1 Compaq's Representations and Warranties. Compaq represents and warrants at
all times that Compaq (i) owns the Web Site, and (ii) 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. Compaq acknowledges that
the System can be used to target, measure and traffic advertisements in many
different ways and based on many difference types of data. Compaq represents and
warrants that it will not use the System or the DART Service in a way or
18
for any purpose that infringes or misappropriates any third party's copyrights,
patents issued as of the Effective Date, trademarks or trade secrets.
6.2 DoubleClick's Representations and Warranties. DoubleClick represents and
warrants that (i) it owns the DART Service and the System, (ii) it 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 (iii) the
System was developed by DoubleClick without infringement or misappropriation of
any third party's copyrights, U.S. patents issued as of the Effective Date,
trademarks or trade secrets.
ARTICLE VII
INDEMNITIES
7.1 Compaq's Indemnities. Compaq agrees to indemnify and hold DoubleClick and
its Affiliates, officers, directors, employees and agents (each a "DoubleClick
Indemnitee") harmless from and against any and all claims, actions, losses,
damages, liability, costs and expenses (including, without limitation,
reasonable attorneys' fees and disbursements incurred by a DoubleClick
Indemnitee in any action between Compaq and the DoubleClick Indemnitee, or
between the DoubleClick Indemnitee and any third party or otherwise) arising out
of or in connection with any breach of any of Compaq's representations,
warranties or obligations set forth in this Agreement. DoubleClick shall
promptly notify Compaq of all claims and proceedings related thereto of which
DoubleClick becomes aware.
7.2 DoubleClick's Indemnities. DoubleClick agrees to indemnify and hold Compaq
and its Affiliates, officers, directors, employees and agents (each a "Compaq
Indemnitee") harmless from and against any and all claims, actions, losses,
damages, liability, costs and expenses (including, without limitation,
reasonable attorneys' fees and disbursements incurred by a Compaq Indemnitee in
any action between DoubleClick and the Compaq Indemnitee, or between the Compaq
Indemnitee and any third party or otherwise) arising out of or in connection
with any breach of DoubleClick's representations, warranties or obligations set
forth in this Agreement. Compaq shall promptly notify DoubleClick of all claims
and proceedings related thereto of which Compaq becomes aware.
7.3 Procedure. The indemnitee ("Indemnitee") that intends to claim
indemnification under this Agreement shall promptly notify the other party (the
"Indemnitor") of any claim, demand, action or other proceeding for which the
Indemnitee intends to claim such indemnification, and the Indemnitor shall have
the right to participate in, and, to the extent the Indemnitor so desires, to
assume sole control of the defense thereof with counsel selected by the
Indemnitor; provided, however, that the Indemnitee shall have the absolute right
to retain its own counsel, with the fees and expenses to be paid by the
Indemnitee. The indemnity obligations under this Agreement shall not apply to
amounts paid in settlement of any loss, claim, damage, liability or action if
such settlement is effected without the consent of the Indemnitor, which consent
shall not be unreasonably withheld or delayed. The failure to deliver notice to
the Indemnitor within a reasonable time after the commencement of any such
action, if prejudicial to Indemnitor's ability to defend such action, shall
relieve the Indemnitor of any liability to the Indemnitee under this Article
VII. The Indemnitee, its employees, agents, officers, directors and
19
partners shall cooperate fully with the Indemnitor and its legal representatives
in the investigation of any action, claim or liability covered by an
indemnification from the Indemnitor.
ARTICLE VIII
ANCILLARY OBLIGATIONS
8.1 Web Site Co-Marketing. Each party shall have the right to create promotional
materials for the Web Site and Advertising on the Web Site, provided that each
party's use of the other party's trade name and trademarks is subject to (i) the
other party's approval, which shall not be unreasonably withheld or delayed and
(ii) compliance with the other party's standards and guidelines as to proper use
of such party's trade name and trademarks ("Trademark Use Guidelines"). Each
party's Trademark Use Guidelines are attached hereto as Exhibits E-1 and E 2.
All use of the other party's trade name and trademarks is by way of license only
and only for the limited purposes of creating and distributing the promotional
materials during the Term. Each party shall comply with the requests of the
other party in relation to correct usage of the other party's trademarks and
shall promptly make any changes to the use being made of the other party's
trademarks and trade names if such change is requested by other party.
8.2 Non-Solicitation. During the Term and for a one-year period following
expiration or termination of this Agreement:
(a) Compaq agrees for itself and for its Affiliates not to (i) solicit for
employment (whether directly or indirectly) any employee of DoubleClick or (ii)
employ any former employee of DoubleClick within sixty (60) days of such former
employee leaving DoubleClick; and
(b) DoubleClick agrees not to (i) solicit for employment (whether directly or
indirectly) any employee of Compaq or (ii) employ any former employee of Compaq
within sixty (60) days of such former employee leaving the Compaq.
ARTICLE IX
DISCLAIMERS AND LIMITATIONS ON LIABILITY
(a) DOUBLECLICK DISCLAIMER. EXCEPT AS SET FORTH IN THIS AGREEMENT, DOUBLECLICK
MAKES NO WARRANTIES OF ANY KIND TO ANY PERSON WITH RESPECT TO THE SERVICES, THE
SYSTEM, ANY ADVERTISING OR ANY DATA SUPPLIED, WHETHER EXPRESS OR IMPLIED,
INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OR NONINFRINGEMENT.
(b) COMPAQ DISCLAIMER. EXCEPT AS SET FORTH TN THIS AGREEMENT, COMPAQ MAKES NO
WARRANTIES OF ANY KIND TO ANY PERSON WITH RESPECT TO THE WEB SITE, ANY
ADVERTISING OR ANY DATA SUPPLIED, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR
NONINFRINGEMENT.
20
9.2 Limitation and Exclusion of Liability. Neither party shall be liable to the
other party, any Advertisers or any other third party for any loss, cost, damage
or expense incurred in connection with the unavailability or inoperability of
the System, the Services or the Internet, technical malfunction, computer error
or loss or corruption of data, or other injury, damage or disruption of any kind
related thereto. In no event shall either party be liable for any indirect,
incidental, consequential, special or exemplary damages, including, but not
limited to, loss of profits, or loss of business opportunity, even if such
damages are foreseeable and whether or not the other party has been advised of
the possibility thereof. Except in relation to a claim against a party based on
its breach of its representations and warranties in this Agreement as to
infringement and misappropriation of third party copyrights, patents, trademarks
or trade secrets, each party's maximum aggregate liability shall not exceed the
total amount paid by Compaq to DoubleClick under this Agreement or the Existing
Agreement during the twelve (12) month period prior to the first date the
liability arose. In all Advertiser Contracts the parties shall use reasonable
efforts to include a provision that will state that the other party is a third
party beneficiary of any disclaimers and limitations or exclusions of liability
that such party has agreed to with the Advertiser in the Advertiser Contract.
ARTICLE X
CONFIDENTIALITY
10.1 Confidentiality. The terms of this Agreement and information and data that
either party has received or will receive from the other party about the
Services, the System and other matters relating to the respective businesses of
the parties is proprietary and confidential information of the disclosing party
("Confidential Information"), including without limitation any information that
is marked as "confidential" or should be reasonably understood to be
confidential or proprietary to the disclosing party and any reference manuals
compiled or provided hereunder. Each party agrees that for the Term and for two
(2) years thereafter, it will not disclose to any third party nor use for any
purpose not permitted under this Agreement any Confidential Information
disclosed to it by the other party. The nondisclosure obligations set forth in
this Section shall not apply to information that the receiving party can
document is generally available to the public (other than through breach of this
Agreement by the receiving party) or was already lawfully in the receiving
party's possession at the time of receipt of the information from the disclosing
party.
ARTICLE XI
GENERAL PROVISIONS
11.1 Independent Contractor Status. Each party shall be and act as an
independent contractor and not as partner, joint venturer or agent of the other.
11.2 Governing Law. This Agreement shall be governed by, and construed in
accordance with the laws of the State of New York, without regard to the
principles of conflicts or choice of law of any jurisdiction.
11.3 Dispute Resolution. The parties shall attempt to settle any claim or
controversy arising out of this Agreement through consultation and negotiation
in good faith and spirit of mutual cooperation. In the event that any dispute
arises between the parties in connection with
21
any subject matter of this Agreement, the dispute will be referred to a
senior-level manager of each party involved in the day-to-day performance of
this Agreement, who shall promptly meet and endeavor to resolve the dispute in a
timely manner. In the event such individuals are unable to resolve such dispute
within ten (10) days from the commencement of the dispute, the matter shall be
referred to the Chief Executive Officer ("CEO") of each party, who shall
promptly meet and endeavor to resolve the dispute. In the event that the
respective CEOs of the parties are unable to resolve such dispute within ten
(10) days, the dispute shall be deemed an unresolved dispute and either party
may commence litigation in a court having proper jurisdiction to resolve such
dispute.
11.4 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
only to the minimum extent necessary without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provisions in any other jurisdiction.
11.5 Force Majeure. No failure or omission by the parties hereto in the
performance of any obligation of this Agreement shall be deemed a breach of this
Agreement nor create any liability if the same shall arise from any cause or
causes beyond the control of the parties, including but not limited to the
following which, for the purposes of this Agreement, shall be regarded as beyond
the control of the party in question: acts of God, acts or omissions of any
government or any rules, regulations or orders of any governmental authority or
any officer, department, agency or instrument thereof; fire, storm, flood,
earthquake, accident, acts of the public enemy, war, rebellion, Internet xxxxx
out, insurrection, riot, invasion, strikes, or lockouts.
11.6 Notices. All notices, demands and other communications provided for or
permitted hereunder shall be made in writing and shall be by registered or
certified first-class mail, return receipt requested, telecopier, courier
service or personal delivery:
If to DoubleClick, to:
DoubleClick Inc.
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Chief Executive Officer
Telecopier No.: (000) 000-0000
With a copy to:
DoubleClick Inc.
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Telecopier No.: (000) 000-0000
22
If to Compaq, to:
Compaq Computer Corporation
P0 Xxx 000000
XX 000000
Xxxxxxx, XX 00000-0000
Attention: General Manager of Alta Vista
Telecopier No.: (000) 000-0000
With a copy to:
Compaq Computer Corporation
P0 Xxx 000000
XX 000000
Xxxxxxx, XX 00000-0000
Attention: Law Department
Telecopier No.: (000) 000-0000
or to such other address or attention of such other Person as such party shall
advise the other party in writing.
All such notices and communications shall be deemed to have been duly given when
delivered by hand, if personally delivered; when delivered by courier, if
delivered by commercial courier service; five (5) business days after being
deposited in the mail, postage prepared, if mailed; and when receipt is
mechanically acknowledged, if telecopied.
11.7 Entire Agreement. This Agreement, together with the schedules, exhibits and
addenda hereto, is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the agreement
and understanding of the parties hereto in respect of the subject matter
contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth herein. This Agreement, together with
the schedules, exhibits and addenda hereto, supercedes and terminates all prior
agreements and understandings between the parties with respect to such subject
matter, including, but not limited to the Existing Agreement.
11.8 Successors and Assigns; Third Party Beneficiaries. This Agreement shall
inure to the benefit of and be binding upon the successors and permitted assigns
of the parties hereto. This Agreement and the rights hereunder are not
transferable without the prior written consent of the non-assigning party;
provided, however, that DoubleClick may assign this Agreement and its rights and
obligations hereunder to (a) a purchaser of substantially all of DoubleClick's
stock or business by sale, merger or otherwise and (b) an Affiliate of
DoubleClick; and provided, further, however, that Compaq may assign this
Agreement and its rights and obligations hereunder to (a) a Person who acquires
the Web Site or the Web Site's assets or business, by sale, merger or otherwise
or (b) an Affiliate of Compaq. Compaq further covenants that it shall not in any
circumstance transfer the Web Site or its business involving the Web Site to any
Affiliate or third party, without also assigning to such Affiliate or third
party (if approved by DoubleClick) Compaq's rights and obligations under this
Agreement. Except as provided in Article VII, no
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Person other than the parties hereto and their successors and permitted assigns
is intended to be a beneficiary of this Agreement. No assignment to any
permitted assign shall be effective until such permitted assign agrees in
writing to be bound by and comply with the terms of this Agreement.
11.9 Amendment and Waiver. No failure or delay on the part of any party hereto
in exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise hereof or the exercise of any
other right, power or remedy. The remedies provided herein are cumulative and
are not exclusive of any remedies that may be available to the parties hereto at
law, in equity or otherwise. Any amendment, supplement or modification of or to
any provision of this Agreement, any waiver of any provision of this Agreement
and any consent to any departure by the parties hereto from the terms of any
provision of this Agreement, shall be effective only if it is made or given in
writing and signed by each of the parties hereto.
11.10 Counterparts. This Agreement may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
11.11 Publicity. None of the parties hereto shall issue a press release or
public announcement or otherwise make any disclosure concerning this Agreement
or the terms hereof, without prior approval by the other party hereto (which
approval shall not be unreasonably withheld); provided, however, that nothing in
this Agreement shall restrict any party from disclosing information (a) that is
already publicly available, except as a result of a breach of this provision by
the disclosing party, (b) that is required to be disclosed by law, provided that
if such disclosing party is required to file a copy of this Agreement with a
governmental authority, such party shall seek confidential treatment to the
extent reasonably available and (c) to its attorney's accountant, consultants
and other advisers. Prior to issuing any press release, public announcement or
disclosure, the disclosing party will deliver a draft of such press release,
public announcement or disclosure to the other party and shall give such party a
reasonable opportunity to comment thereon.
DOUBLECLICK INC. COMPAQ COMPUTER CORPORATION
Signature: /s/ Xxxxx X'Xxxxxx Signature: /s/ Xxx Xxxxxxx
--------------------------- ----------------------
Xxxxx X'Xxxxxx Printed Name: Xxx Xxxxxxx
Chief Executive Officer -------------------
Title: Senior Vice President
--------------------------
Dated: January 18, 1999. Dated: January 18, 1999.
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