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EXHIBIT 10.21
PROCUREMENT AND TRAFFICKING AGREEMENT
Company: Cybernet Data Systems Incorporated
Address: 0 Xxxxx Xxxx, Xxxxx 000, Xxxxxx XX 00000
Web Site URL: xxx.xxxxx-xxxxxx.xxx
This Agreement when executed by the above named company ("Company"),
and DoubleClick Inc. ("DoubleClick"), will constitute a valid and binding
agreement between Company and DoubleClick according to the specific terms and
conditions set forth below and those terms and conditions set forth in the
Standard Terms and Conditions. All terms not otherwise defined below shall be as
defined in the Standard Terms and Conditions.
I. DESCRIPTION OF SERVICES
A. DoubleClick hereby agrees to link Pages to the Service and through
such Service, DoubleClick shall deliver Advertisers' Banners to
users accessing Pages. DoubleClick and Company shall mutually agree
upon the number and type of Pages to be linked to the Service.
B. During the Term (as defined below), the Company shall not place, or
permit the placement or delivery of, any Banners or third party
advertising on the Pages except through DoubleClick or DoubleClick's
authorized representatives, Licensees and assigns which shall be the
Company's sole and exclusive representative for the placement and
delivery of all Banners and other advertising on the designed Pages.
Notwithstanding the foregoing, company shall be entitled to directly
sell, place and deliver Banners and other advertising of entities
which have an equity interest in company on the Web Site, or on
pages that are not assigned to DoubleClick.
II. TERM
The term (the "Term") of this Agreement shall commence on June 1,
1997 and shall continue until such time that it is terminated by
either party on not less than ninety (90) days prior written notice
to the other party.
III. COMPENSATION/PAYMENT
A. In full consideration of the Company providing the use of the Spot
and performing all its other obligations under this Agreement,
DoubleClick shall pay Company, and Company agrees to accept, sixty
percent (60%) percent of the Net Revenues generated on Banners which
are delivered through the Service to Pages.
B. DoubleClick shall pay Company within five (5) days of DoubleClick's
Day's Sales Outstanding (as defined herein) following the end of the
month in which Advertisers' Banners are delivered to Pages.
C. Company shall be solely responsible for any costs or expenses it
incurs in connection with the Service or performance of its
obligations under this Agreement including, without limitation,
expenses associated with any HTML programming and linking Pages to
the Service.
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D. Notwithstanding anything to the contrary contained herein, in the
event Company terminates this Agreement in accordance with Section II
above and DoubleClick, prior to said termination, has entered into
agreements with Advertisers ("Advertiser Contracts") for the delivery
of Banners to the Pages, the duration of which Advertiser Contracts
extend beyond the date on which this Agreement has been terminated by
Company, DoubleClick shall be entitled to twenty percent (20%) of the
revenues derived from the continued delivery of said Banners by
Company or any party other than DoubleClick.
IV. COMPANY OBLIGATIONS AND RIGHTS
A. Company 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. Spots must be within the first screen of a Page and otherwise conform
to the HTML Modifications unless otherwise agreed upon by Company and
DoubleClick.
C. Properly after the execution of this Agreement, Company agrees to
place a link on the Web Site's home page to DoubleClick's web site for
potential advertisers to learn how they can place advertising on the
Web Site.
D. Company will maintain its Pages and Web Site at a quality standard
that is no less than the standard that exists as of the date of this
Agreement and in a manner in keeping with the quality of other web
sites in the Service.
E. Company agrees that DoubleClick has no responsibility to review the
contents of Pages or the Web Site.
F. Company agrees that it shall not delink or remove more than five
percent (5%) of the Pages from the Service during any consecutive
thirty (30) day period without DoubleClick's prior written consent.
V. DOUBLECLICK OBLIGATIONS AND RIGHTS
A. DoubleClick shall have the right to refuse to include in the Service,
and to remove from the Service without prior notice, any Pages
(including its contents) that DoubleClick determines do not meet the
standards of the Service or which do not comply with the HTML
Modifications, as DoubleClick deems reasonable and necessary in its
sole good faith discretion, or in the event of any material change in
the nature of the Web Site or the Page from that set forth in
Company's application.
B. DoubleClick shall determine in its sole discretion, which Advertisers
shall have access to the Service.
C. Company acknowledges and agrees that promotion of the Service is
critical to enhance usage by Advertisers and in connection therewith
Company agrees that (i) DoubleClick shall have the right to use
Company's name and Pages in advertising and promoting the Service in
any media now or hereafter known and (ii) Company shall, upon
DoubleClick's reasonable request, supply DoubleClick
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with a reasonable amount of Company's promotional materials so as to
facilitate DoubleClick's sales efforts to prospective Advertisers.
D. DoubleClick shall have the right to use for DoubleClick's own use or for
use in connection with potential Advertisers on the Service, information
concerning Pages, Impressions and users accessing Pages obtained through
the Service, provided DoubleClick does not reproduce any Pages without
Company's prior consent and DoubleClick shall not disclose to any third
party any such current information specifically pertaining to such users.
E. DoubleClick will make site reports available to Company through
DoubleClick's web site (xxx.xxxxxxxxxxx.xxx) listing the number of
Impressions and click-over rates by Page.
F. It is understood and agreed that DoubleClick shall determine the rate card
(and any applicable discount charged to said Advertisers for delivery of
Banners. It is further understood and agreed that DoubleClick shall have
the right, in its sole discretion, to provide Advertisers with bonus
Impressions free of charge.
DOUBLECLICK, INC. COMPANY
By: /s/ X. X. Xxxxxxx By: /s/ Xxxxx Xxxxxxxxxx
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(Signature) (Signature)
X. X. Xxxxxxx Xxxxx Xxxxxxxxxx
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(Printed/Typed Name) (Printed/Typed Name)
Executive Vice President Co-CEO
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(Official Title) (Official Title)
Dated: 8/29/97
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STANDARD TERMS AND CONDITIONS
1. No Assignment. Neither party to this Agreement shall sell,
transfer or assign this Agreement or the rights or obligations hereunder, other
than to a parent or wholly-owned subsidiary, without the prior written consent
of the other party. Notwithstanding the foregoing, either party shall have the
right to transfer or assign this Agreement to a third party
successor-in-interest, which for the purposes of this Section shall mean any
third party which acquires all or substantially all of the assets of either
party, or more than 75% of the outstanding stock of such party, whether by sale,
consolidation, merger or otherwise. Any act in derogation of the foregoing shall
be null and void.
2. Proprietary Rights. Company understands and agrees that
Company shall not have, nor will it claim, any right, title or interest in and
to any Banners (other than its own Banners), the Service or any elements
thereof (including, without limitation, the grant of a license in or to the
Service or any software, source codes, modifications, updates and enhancements
thereof or any other aspect of the Service), the name "DoubleClick" or any
derivatives thereof, or any other trademarks and logos which are owned or
controlled by DoubleClick and made available to Company through the Service or
otherwise.
3. Representation and Indemnity. Company warrants and
represents at all times that Company (i) owns the Web Site, (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, (iii) owns and/or
has the right to use all materials contained on the Web Site or Pages,
including, without limitation, all copyrights, trademarks and other proprietary
rights in and to such materials, and (iv) has secured the requisite permission
to use any person's name, voice, likeness and performance as embodied in such
materials, or any other element contained in said material. In furtherance of
the foregoing, Company agrees to indemnify and hold DoubleClick and the
Advertisers harmless from and against any and all claims, actions, losses,
damages, liability, costs and expenses (including reasonable attorneys' fees)
arising out of or in connection with (i) the breach of any representation,
warranty or agreement made by Company hereunder and/or (ii) the Web Site or
Pages, including, without limitation, claims for infringement of copyright or
other intellectual property rights and violation of rights of privacy or
publicity. DoubleClick shall promptly notify Company of all claims and
proceedings related thereto of which DoubleClick becomes aware. DoubleClick
warrants and represents at all times that DoubleClick owns the Service and that
such Service will not infringe upon or conflict with the rights held by any
third party under patent, trademark, copyright, trade secrets or other
proprietary right. In furtherance of the foregoing, DoubleClick shall indemnify,
defend and hold Company harmless from and against any and all claims, actions,
losses, damages, liabilities, costs and expenses (including reasonable
attorneys' fees) resulting from or arising out of or in connection with any
breach of the foregoing representations and warranties.
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Company shall promptly notify DoubleClick of all claims and proceedings related
thereto of which Company becomes aware.
4. No Warranties/Liabilities. EXCEPT AS EXPRESSLY PROVIDED
ABOVE, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR
IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS OF THE
SERVICE OR THE WEB SITE FOR A PARTICULAR PURPOSE INCLUDING, WITHOUT LIMITATION,
THE TYPE OF BANNERS OR NUMBER OF BANNERS WHICH WILL BE DELIVERED TO PAGES
THROUGH THE SERVICE. DOUBLECLICK SHALL NOT BE LIABLE FOR ANY ADVERTISERS WHOSE
BANNERS APPEAR ON THE SERVICE, NOR THE CONTENTS OF ANY BANNER, NOR SHALL
DOUBLECLICK BE LIABLE FOR ANY LOSS, COST, DAMAGE OR EXPENSE (INCLUDING COUNSEL
FEES) INCURRED BY COMPANY IN CONNECTION WITH COMPANY'S PARTICIPATION IN THE
SERVICE. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY TECHNICAL
MALFUNCTION, COMPUTER ERROR OR LOSS OF DATA OR OTHER INJURY, DAMAGE OR
DISRUPTION TO COMPANY'S PAGES OR WEB SITE OR THE SERVICE. IN NO EVENT SHALL
EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL OR
CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN RELATION TO
THIS AGREEMENT.
5. Confidentiality. Any information relating to or disclosed
in the course of this Agreement by either party (the "Disclosing Party") to the
other party (the "Receiving Party"), which is or should be reasonably understood
to be confidential or proprietary to the Disclosing Party, including but not
limited to, the material terms of this Agreement, information about the Service
and technical processes and formulas, source code, product designs, sales, cost
and other unpublished financial information, product and business plans,
projections, and marketing data shall be deemed "Confidential Information" and
shall not be used, disclosed or reproduced by the Receiving Party without the
Disclosing Party's prior written consent. "Confidential Information" shall not
include information (a) already lawfully known to or independently developed by
the Receiving Party, (b) disclosed in published materials, (c) generally known
to the public, (d) lawfully obtained from any third party, or (e) required to be
disclosed by law.
6. Breach. Either party shall have the right to immediately
terminate this Agreement in the event the other party commits a material breach
of this Agreement and such breach is not cured by the breaching party within
thirty (30) days of its receipt of notice of such breach from the non breaching
party.
7. Miscellaneous. Notwithstanding any provision hereof, for
the purpose of this Agreement each party shall be and act as an independent
contractor and not as an
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employee, partner, joint venturer, or agent of the other and shall not bind nor
attempt to bind the other to any contract.
This Agreement, including the Standard Terms and Conditions, represents the
entire understanding between DoubleClick and Company regarding DoubleClick's
services and supersedes all prior agreements. No waiver, modification or
addition to this Agreement shall be valid unless in writing and signed by the
parties to this Agreement. Notwithstanding the foregoing, DoubleClick shall have
the right to modify or make additions to the placement algorithm governing
Banner delivery and the HTML Modifications, from time to time upon
reasonable prior notice to Company.
If any provision of this Agreement shall be adjudicated by any court of
competent jurisdiction to be unenforceable or invalid, that provision shall be
limited or eliminated to the minimum extent necessary so that this Agreement
shall otherwise remain in full force and effect and the other provisions shall
be unaffected.
8. Applicable Law. This Agreement shall be governed by and
construed in accordance with the substantive laws of the State of New York and
Company agrees that jurisdiction and venue of all matters relating to this
Agreement shall be vested exclusively in the federal, state or local courts
within the State of New York.
9. Definitions. "Advertiser" is defined as a company, entity
or individual which provides Banners to DoubleClick for distribution through the
Service. "Banner" is defined as an advertisement and its contents. "Day's Sales
Outstanding" shall be the average number of days it takes DoubleClick to collect
its Net Accounts Receivable (as defined herein) from Advertisers and which shall
be calculated as follows: DoubleClick's account's receivable balance from the
immediately preceding semi-annual accounting period (calculated on a calendar
year basis) after adjustment for any reserve for doubtful accounts and deferred
or unbilled revenue ("Net Accounts Receivable") shall be divided by the average
daily revenue recognized by DoubleClick for the last two months of such
semi-annual accounting period. DoubleClick's Day's Sales Outstanding shall be
calculated following the end of each semi-annual accounting period and shall be
used in determining the date of payment for amounts due to Company for
Banners which are delivered to Pages in each of the months comprising the
ensuing semi-annual accounting period. "Net
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Revenues" is defined as the gross xxxxxxxx earned from Advertisers by
DoubleClick less (i) rate card and volume discounts and agency commissions, and
(ii) a bad debt allowance of one (1%) of said gross xxxxxxxx. "Impression" is
defined as occurring each time a Banner appears on a Page resulting from a user
accessing or visiting such Page. "Page" is defined as a page in the Web Site
designated by Company to be linked to the Service and is accepted and approved
by DoubleClick. "Paid Banner" is defined as any Banner which is paid for by an
Advertiser. "Service" is defined as the DoubleClick service that delivers
Banners to any Page(s) of the Web Site in the following order and manner: For
users which match the criteria selected by an Advertiser from information
currently available to DoubleClick concerning users, a Paid Banner from such
Advertiser will appear. If no match occurs or a Paid Banner is unavailable,
Banner another web site linked to the Service will appear (and Company shall
receive "barter" Banner entitling it to one free delivery of its Advertising to
a web site linked to the Service.) In addition, Banners promoting the Service
and Banners promoting charitable causes and non-profit organizations (i.e.
public service announcements) may appear on Pages. "Spot" is defined as the
specific place on a Page where Banners may appear through the Service. "Web
Site" is defined as the Company's web site referred to above.
