Exhibit 10.13
SERVICES AGREEMENT
THIS SERVICES AGREEMENT (this "Agreement") is entered into as of the date of
later signature below ("Effective Date"), by and between Gannett Co., Inc., a
Delaware corporation with offices at 0000 Xxxxx Xxxxxx Xxxxx, XxXxxx,
Xxxxxxxx 00000 ("Gannett") and Monster Offers, a Nevada corporation with
offices at XX Xxx 0000, Xxxxxx', Xxxxxxxxxx 00000 ("Monster Offers"), and
sets forth the terms and conditions pursuant to which Monster Offers will
provide to Gannett and its Affiliates (as defined in Section 17, below) the
reporting services described in Exhibit A (the "Services") relating to the
performance of third-party "deal of the day" ("DOTD") service offerings that
serve the markets associated with Gannett's and its Affiliates' websites
listed on Exhibit B (each a "Gannett Market") (as such Exhibit may be amended
by Gannett from time to time during the Term on written notice to Monster
Offers (email to suffice) to add or remove Gannett Markets). Accordingly, for
good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties, intending to be legally bound, hereby agree as
follows:
1. Services. During the Term, Monster Offers will perform the following
Services on behalf of Gannett and its Affiliates: tracking the performance of
mutually agreed upon third-party DOTD sites that serve users in the
applicable Gannett Markets and, as further described in Exhibit A, will
create reports describing the performance of deals distributed on such DOTD
sites ("Reports").
2. License. Subject to the terms and conditions of this Agreement, effective
as of the Commencement Date (as defined below), Monster Offers hereby grants
to Gannett and its Affiliates a non-exclusive, fully-paid up license to use
the Reports for Gannett's and such Affiliates' internal business purposes
during the Term. Monster Offers will make the Reports available to Gannett
and its Affiliates at the frequency set forth in Exhibit A in a form and
format specified in Exhibit A or as otherwise mutually agreed upon by the
parties.
3. License Restrictions. Except as permitted by applicable law, Gannett may
not, without Monster Offers' prior written consent, (i) modify, edit, or
otherwise alter the Reports; (ii) reproduce, modify, adapt, translate,
prepare derivative works of, or distribute to third parties (other than
Gannett's Affiliates) the Reports; or (iii) authorize any third party to do
any of the foregoing.
4. Fees: Payment Terms.
4.1. Fees. During the Term, Gannett agrees to pay to Monster Offers the fees
set forth on Exhibit C (the "Fees") for each Gannett Market that uses the
Services, based on the rates per Gannett Market identified in Exhibit B.
4.2. Invoicing: Payment. Monster Offers will invoice Gannett for the Fees on
a monthly basis in arrears. Each such invoice will describe, in reasonable
detail the Gannett Markets that received Services during the applicable
month. Gannett will pay all amounts set forth in such invoices and not
reasonably disputed by Gannett in good faith within ten (10) days of receipt
of invoice.
5. Term; Termination
5.1. Term. The term of this Agreement will commence as of July 1, 2011
("Commencement Date") with the first deliverable due on July 12th, 2011 and,
unless earlier terminated as set forth herein, will remain in effect until
June 30, 2012 (the "Term"). Following the Initial Term, this Agreement may be
renewed upon mutual written agreement of the parties.
5.2. Termination. Gannett may terminate this Agreement at any time, with or
without cause, upon thirty (30) days prior written notice to Monster Offers.
Either party may terminate this Agreement in the event of a material breach
by the other party that remains uncured for a period of fifteen (15) days
after receipt of written notice of such breach from the non-breaching party.
5.3. Effect of Termination. Upon expiration or termination of this Agreement,
(i) Gannett shall cease receiving new Reports, and (ii) will pay any
undisputed Fees that accrued during the Term in accordance with the terms of
Section 3. For clarity, notwithstanding anything to the contrary in this
Agreement, upon any expiration or termination, Gannett and its Affiliates
will continue to have the right to use any Reports provided by Monster Offers
during the Term, subject to the terms and conditions set forth herein.
Subject to the foregoing, Sections 2, 3, 5.3, 6, 7, 8, 9, 10, 13, and 15 will
survive any expiration or termination of this Agreement.
6. Ownership. As between the parties, (i) Gannett retains all right, title
and interest, including all intellectual property rights, in and to Gannett's
and Affiliates' websites, including, without limitation, all content on or
available through Gannett's and such Affiliates' websites, and (ii) Monster
Offers retains all right, title, and interest, including all intellectual
property rights, in and to Monster Offers' and its Affiliates' websites, and
in and to the Services and the Reports.
7. Representations and Warranties.
7.1. General Warranties. Each party represents and warrants that: (i) it has
all requisite corporate power and authority to execute, deliver and perform
its obligations hereunder; (ii) it has all rights necessary to enter into
this Agreement and to perform its obligations hereunder, including, without
limitation, the right to grant any rights granted by such party under this
Agreement; (iii) it is not a party to any agreement with a third party, the
performance of which is reasonably likely to affect adversely its ability or
the ability of the other party to perform fully its respective obligations
hereunder; and (iv) its performance of its obligations under this Agreement
will not violate any other agreement between such party and any third party.
7.2. Monster Offers Warranties. Monster Offers further represents and
warrants that (i) the Reports will at all times conform to any specifications
for the Reports Technology provided by Monster Offers, (ii) Monster Offers
has all rights and licenses necessary to enter into this Agreement and to
grant the licenses granted to Gannett and its Affiliates hereunder; (iii) the
Services, the Reports, and Monster Offers' performance of its obligations
under this Agreement will comply with all applicable laws, rules and
regulations, and (iv) the Reports, and the data contained therein, will be
true, correct and complete based on the data available to Monster Offers as
of the time such Report is provided by Monster Offers to Gannett and its
Affiliates.
8. Indemnification. Monster Offers will indemnify, defend and hold harmless
Gannett, its Affiliates, successors and assigns, and all of their respective
officers, directors, employees and agents from and against any and all
claims, losses, demands, causes of action, debts or liabilities, including
reasonable attorneys' fees (collectively, "Losses"), arising out of a third-
party claim resulting from (i) any breach or alleged breach of Monster
Offers' obligations, representations or warranties under this Agreement; or
(ii) any claim that the Services or the Reports, or Gannett's or such
Affiliates' use of any of the foregoing in accordance with the terms of this
Agreement (a) misappropriates any third party's confidential information, (b)
is libelous or defamatory, or (c) violates or infringes the rights of any
third party, including, without limitation, any patent, copyright, trademark,
trade secret or other intellectual property or proprietary rights, or any
rights of privacy or publicity.
9. Limitation of Liability. EXCEPT FOR EACH PARTY'S INDEMNIFICATION
OBLIGATIONS AND FOR DAMAGES ARISING OUT OF BREACHES OF SECTION 15
(CONFIDENTIALITY), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL
DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY CAUSE OF ACTION
EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Confidentiality.
10.1. Definition of Confidential Information. For purposes of
this Agreement, "Confidential Information" means the terms and conditions of
this Agreement, and all non-public information about the disclosing party's
(or its suppliers') business or activities that is marked or designated by
such party as "confidential or "proprietary" at the time of disclosure or
that reasonably would be understood to be confidential given the
circumstances of disclosure. Without limiting the generality of the
foregoing, Confidential Information will include, without limitation all
business, financial, technical and other similar information of either party.
Notwithstanding the foregoing, Confidential Information will not include
information that; (i) is or becomes publicly known without breach of this
Agreement; (ii) the receiving party lawfully receives from a third party
without restriction on disclosure and without breach of a nondisclosure
obligation; (iii) the receiving party rightfully knew prior to receiving such
information from the disclosing party; or (iv) the receiving party develops
independent of any information originating from the disclosing party.
10.2. Use of Confidential Information. Each party agrees
that: (i) it will not disclose to any third party any Confidential
Information disclosed to it by the other party except as expressly permitted
in this Agreement; (ii) it will not use any Confidential Information
disclosed to it by the other party except as necessary to perform its
obligations under this Agreement; and (iii) it will take all reasonable
measures to maintain the confidentiality of all Confidential Information of
the other party in its possession or control, which will in no event be less
than the measures it uses to maintain the confidentiality of its own
information of similar importance. Notwithstanding the foregoing, each party
may disclose Confidential Information (a) to the extent required by a court
of competent jurisdiction or other governmental authority or otherwise as
required by law, provided that such party uses reasonable efforts to request
confidential treatment or a protective order before such disclosure; (b) on a
"need-to-know" basis to its legal counsel, accountants, employees and agents
who are obligated to maintain the confidentiality of such information, and
(c) on a confidential basis to current or prospective investors in or
acquirers of such party. Upon termination or expiration of this Agreement, or
at the request of the disclosing party, the receiving party shall (at its
option) return the Confidential Information to the disclosing party, or
destroy it and, upon the disclosing party's request, certify that it has
taken such action.
11. No Publicity. Except as permitted by law, Monster Offers may not use
Gannett's or any Gannett Affiliate's name, or any trademark, service xxxx,
trade name, logo or other commercial or product designations for any purpose
without the prior written consent of Gannett in each instance. Without
limiting the generality of the foregoing, unless required by law, neither
party will, without the prior written approval of the other party, make any
public statement, press release, presentation, or other announcement relating
to the existence or terms of this Agreement.
12. Assignment. Neither this Agreement nor any interest herein or in the
license may be assigned by either party without the prior written approval of
the other party, which approval will not be unreasonably withheld, except
that Gannett may assign this Agreement without Monster Offers' approval to
any purchaser of all or substantially all of its business or assets
pertaining to the line of business to which this Agreement relates or to any
Gannett Affiliate. For purposes of this Agreement, the term "Affiliate" means
an entity that controls, is controlled by or is under common control with a
party to this Agreement, where "control" means the power to direct the
management of such entity.
13. Jury Trial Waiver. THE PARTIES SPECIFICALLY WAIVE ANY RIGHT TO TRIAL BY
JURY IN ANY COURT WITH RESPECT TO ANY CONTRACTUAL, TORTIOUS, OR STATUTORY
CLAIM, COUNTERCLAIM, OR CROSS-CLAIM AGAINST THE OTHER ARISING OUT OF OR
CONNECTED IN ANY WAY TO THIS AGREEMENT, BECAUSE THE PARTIES HERETO, BOTH OF
WHOM ARE REPRESENTED BY COUNSEL, BELIEVE THAT THE COMPLEX COMMERCIAL AND
PROFESSIONAL ASPECTS OF THEIR DEALINGS WITH ONE ANOTHER MAKE A JURY
DETERMINATION NEITHER DESIRABLE NOR APPROPRIATE.
14. Termination of Existing Agreements. As of the Effective Date, Monster
Offers is a party to the following two separate Agreements with Affiliates of
Gannett: (i) the Services Agreement dated as of January 11, 2011, between
Monster Offers and Phoenix Newspapers, Inc. ("PNI") and (ii) the Services
Agreement dated as of March 22, 2011, between Monster Offers and Gannett
Satellite Information Network, Inc. ("GANSAT") (collectively, the "Existing
Affiliate Agreements"). Pursuant to the Existing Affiliate Agreements,
Monster Offers provides to PNI and GANSAT, respectively, certain services
that are substantially similar to the Services to be provided to Gannett
under this Agreement. Monster Offers, PNI and GANSAT desire to terminate
their respective rights and obligations under the Existing Affiliate
Agreements Agreement and to permit PNI and GANSAT to obtain Services from
Monster Offers in accordance with the terms of this Agreement. Accordingly,
the parties hereby agree that, as of the Effective Date of this Agreement,
the Existing Affiliate Agreements shall be deemed terminated and PNI and
GANSAT shall each be deemed an "Affiliate' under this Agreement, with all the
rights, benefits and obligations of same.
15. Miscellaneous. Any notice provided pursuant to this Agreement will be in
writing, and will be sent by U.S. mail, postage prepaid, certified mail
return receipt requested or by overnight courier to the applicable party at
the address set forth in the preamble above or such other address specified
in writing by the applicable party in accordance with this Section. Notices
to Monster Offers will be sent to Xxxx X. Gain, CEO, and notices to Gannett
will be sent to Xxxxx Xxxxx, VP of Business Development and Operations.
Copies of notices to Gannett also will be sent to Gannett Co., Inc., 0000
Xxxxx Xxxxxx Xxxxx, XxXxxx, Xxxxxxxx 00000 Attn: Law Department. Notices will
be effective upon receipt. Nothing in this Agreement shall be construed to
constitute or appoint either party as the agent or representative of the
other party for any purpose whatsoever, or to grant to either party any right
or authority to assume or create any obligation or responsibility, express or
implied, for or on behalf of or in the name of the other, or to bind the
other in any way or manner whatsoever. This Agreement and performance
hereunder will be governed by the laws of the State of New York, without
regard to its conflicts of laws rules. This Agreement constitutes the
complete and exclusive agreement between the parties relating to the subject
matter hereof. it supersedes all prior proposals, understandings and all
other agreements, oral and written, between the parties relating to this
subject matter. The waiver or failure of either party to exercise any right
provided for herein will not be deemed a waiver of any further right
hereunder. This Agreement may not be modified or altered except by written
instrument duly executed by both parties. If any provision of this Agreement
is held to be invalid, illegal or unenforceable by a court of competent
jurisdiction, such provision will be deemed restated, in accordance with
applicable law, to reflect as nearly as possible the original intentions of
the parties, and the remainder of the Agreement will remain in full force and
effect. This Agreement may be executed in counterparts, each of which will
constitute an original, and all of which will constitute one agreement.
Ambiguities, inconsistencies or conflicts in this Agreement will not be
strictly construed against either party but will be resolved by applying the
most reasonable interpretation under the circumstances, giving full
consideration to the parties' intentions at the time this Agreement is
entered into and common practice in the industry.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
GANNETT CO., INC. MONSTER OFFERS
By: /s/ Xxxxx Xxxxx By: /s/ Xxxx X. Gain
--------------- ----------------
Name: Xxxxx Xxxxx Name: Xxxx X. Gain
Title: VP, Bus. Dept. & Operations Title: CEO
Date: 6/14/2011 Date: June 7th, 2011
For purposes of Section 14 only:
PHOENIX NEWSPAPERS, INC.
By: /s/ Xxxx Xxxxxxx
----------------
Name: Xxxx Xxxxxxx
Title: VP/Digital Media
Date: 6/7/11
GANNETT SATELLITE INFORMATION NETWORK, INC.
By: /s/ Xxx Xxxx
------------
Name: Xxx Xxxx
Title: Digital Development Director, Gannett NJ
Date: June 13, 2011
EXHIBIT A
SERVICES
1. DOTD Tracking - Large Markets
REPORTS: Frequency: Weekly
Delivery Deadline: Delivered by 11:59 pm Eastern time each Tuesday
Monthly Results Included: Monthly results (to date) included in
each Weekly Report
DESCRIPTION: This Report is most appropriate for the hyper-competitive
markets, ones with a considerable mix of both national and local DOTD
providers. Up to 25 DOTD mutually agreed to products can be tracked and
included in each Weekly Report. These reports will include at a minimum;
national DOTD providers, local DOTD providers, media properties
with DOTD products, and other branded and syndicated DOTD sites along with
deal description and sales volume (when available). The focus is to analyze
the data to identify local trends and provide useful insights to Gannett's
and its Affiliates' local DOTD staff and executive management, as determined
by Gannett and such Gannett Affiliate. Product and sales data (if available)
will be compiled and presented in Excel format. For any DOTD website that
offers multiple deals per week, the Report will include tracking data for
each applicable deal offered by such site (up to 10 deals per site per week).
2. DOTD Tracking - Midsize Markets
REPORTS: Frequency: Weekly
Delivery Deadline: Delivered by 11:59 pm Eastern time each Tuesday
Monthly Results Included: Monthly results (to date) included in
each Weekly Report
DESCRIPTION: This Report is considered appropriate for markets where there
are competitors beyond just Groupon and LivingSocial, but not to the extent
of the hyper-competitive large markets. Up to 7 DOTD products can be tracked
and included in each Weekly Report. These reports will include at a minimum;
national DOTD providers, local DOTD providers, media properties with DOTD
products, and other branded and syndicated DOTD sites along with deal
description and sales volume (when available). The results will be grouped by
geography and/or market size to make the results and reports even more
meaningful. The focus is to analyze the data to identify trends, findings and
insights in these markets that can be useful to Gannett's and its Affiliates'
local DOTD staff and executive management, as determined by Gannett and such
Gannett Affiliate. Product and sales data (if available) will be compiled and
presented in Excel format. For any DOTD website that offers multiple deals
per week, the Report will include tracking data for each applicable deal
offered by such site (up to 10 deals per site per week).
3. DOTD Tracking - Small Markets
REPORTS: Frequency: Weekly
Delivery Deadline: Excel spreadsheets delivered by 11:59 pm Eastern
time each Tuesday
DESCRIPTION: This Report is most appropriate for small markets where the
competitors are simply Groupon and LivingSocial. There will be no custom
reports written for these markets, rather the product and sales data (if
available) will be compiled in Excel spreadsheets. These reports, in Excel
spreadsheet format, will include at a minimum; national DOTD providers, local
DOTD providers, media properties with DOTD products, and other branded and
syndicated DOTD sites along with deal description and sales volume (when
available).
For any DOTD website that offers multiple deals per week, the Report will
include tracking data for each applicable deal offered by such site (up to 10
deals per site per week).
4. Newspaper DOTD Industry Report
REPORTS: Frequency: Monthly
Delivery Deadline: 11:59 pm Eastern time on the fifth (5m) business
day after close of month.
DESCRIPTION: This is a syndicated Industry Report intended for all Gannett
newspaper and broadcast properties, big and small. At present, there are over
150 newspapers that offer a DOTD product. The Industry Report aggregates and
includes all the specific deals and sales data to compare and trend
performance on several key metrics and is useful to readers
regardless of size. Features such as the best performing deals of the month
will also be included. This Monthly Report is compiled and presented in Excel
format.
5. Reporting Dashboard. Without limiting Monster Offer's obligation to
deliver all Reports by the Delivery Deadlines set forth above, Monster Offers
agrees that, during the Term, at no additional cost to Gannett, Monster
Offers will make the Reports available to Gannett and the Gannett Markets
through an online reporting dashboard that will include all information
included in the Reports but that will be updated in real time ("Reporting
Dashboard"). Monster Offers will ensure that the Reporting Dashboard is fully
functional and available for use by Gannett and the Gannett Markets at all
times during the Term as of July 31, 2011.
6. Service Credits for Delayed Delivery.
a. During the Term, Monster Offers agrees to deliver the Reports described
in Sections 1-4 above to the applicable Gannett Markets by the Delivery
Deadline specified above. In the event that Monster Offers fails to deliver
any Report(s) to any applicable Gannett Market by the applicable Delivery
Deadline (a "Late Report Delivery"), Gannett will report such Late Report
Delivery to Monster Offers by phone and/or email to: xxxxx@xxxxxxxxxxxxx.xxx
with a copy to xxxxxxxxx@xxxxxxxxxxxxx.xxx . If, after receiving such notice
of a Late Report Delivery, Monster Offers fails to provide the applicable
Report(s) to all such Gannett Markets within twelve (12) hours after the
Delivery Deadline ("Cure Period"), Monster Offers will issue Gannet a service
credit ("Service Credit") equal to fifteen percent (15%) of the Fees payable
by Gannett to Monster Offers for the applicable Report for such month. For
clarity, Gannett will be entitled to a separate Service Credit for each
Report that is not delivered to all applicable, Gannett Markets by the
conclusion of the applicable Cure Period, provided that the maximum Service
Credit that may accrue under this Section will not exceed one hundred percent
(100%) of the Fees owed by Gannett to Monster Offers for the applicable
month. For purposes of illustration, but not by way of limitation, (i) if
Monster Offers fails to deliver the Large Market Report by the Delivery
Deadline for two consecutive weeks, Gannett would be entitled to a Service
Credit equal to 30% of the fees paid or payable for the Large Market Report
for the applicable month, and (ii) if, in a given week, Monster Offers failed
to deliver the Large Market Report and the Midsize Market Reports by the
applicable Delivery Deadlines, Gannett would be entitled to a Service Credit
equal to 15% of the fees paid or payable for the Large Market Report plus 15%
of the fees paid or payable for the Midsize Market Report.
b. Without limiting the foregoing, in the event that Monster Offers
experiences one (1) or more Late Report Deliveries for three (3) straight
weeks, or five (5) or more Late Report Deliveries over any three (3) month
period during the Term, then, regardless of whether any or all of such Late
Report Deliveries are cured within the applicable Cure Period, Monster Offers
will pay to Gannett a Service Credit equal to fifteen percent (15%) of one
month's aggregate Fees otherwise paid or payable by Gannett to Monster Offers
under this Agreement. For clarity, any Service Credits payable to Gannett
under this Section 5(b) are in addition to any Service Credits to which
Gannett may be entitled under Section 5(a) above.
c. Any Service Credits payable by Monster Offers to Gannett will be issued as
a credit against the next month's invoice; provided that if any such Service
Credit accrues in the last month of the Term, Monster Offers will pay Gannett
the amount of such Service Credit within thirty (30) days of the expiration
or termination of this Agreement. The payment by Monster Offers of any
Service Credits under this Section will be in addition to any other rights or
remedies Gannett may have in connection with the late or failed delivery of
Reports, whether under this Agreement, at law or in equity.
EXHIBIT B
GANNETT MARKETS
LARGE MIDSIZE SMALL
$1187.50 month $475month $237.50 month
Washington, DC Nashville, TN Jackson, MS
Atlanta, GA Louisville, KY Lansing, Ml
Detroit, MI Jacksonville, FL Pensacola, FL
Phoenix, AZ Buffalo, NY Reno, NV
Minneapolis, MN Grand Rapids, MI Asheville, NC
St Louis, MO Columbia, SC Shreveport, LA
Tampa, FL Greensboro, NC Salem, OR
New Jersey Little Rock, AR Tallahassee, FL
Denver, CO Knoxville, TN St. Cloud, MN
Indianapolis, IN Poughkeepsie, NY Montgomery, AL
Sacramento, CA Greenville, SC Green Bay, WI
Cincinnati, OH Des Moines, IA Fort Xxxxxxx, CO
Cleveland, OH Ft Xxxxx, FL Lafayette, LA
Space Coast (Brevard), FL Binghamton, NY
Wilmington, DE Appleton, WI
Westchester County, NY Macon, GA
Sioux Falls, IA
Burlington, VT
Lafayette, IN
Rochester, NY
Bangor, ME
Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxx, XX
Portland, ME
Springfield, MO
EXHIBIT C
FEES
GANNETT GANNETT MONTHLY
PRODUCT PRICE QUANTITY COST
-------------------------------- ------- -------- -------
DOTD Tracking-Large Markets $1187.50 13 $15,437.50
DOTD Tracking-Midsize Markets $475 16 $7,600
DOTD Tracking-Small Markets $237.50 25 $5,937.50
Newspaper DOTD Industry
Report N/A N/A $2,500
TOTAL MONTHLY COST $31,475
