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EXHIBIT 10.5
2CAN MEDIA, INC.
REPRESENTATION AGREEMENT
PAGE 1 OF 13
THIS REPRESENTATION AGREEMENT (the "Agreement") between 2CAN Media,
Inc. (2CAN) with their principal place of business located at 00000 Xxxxxxx
Xxxx., Xxxxx 000 Xxxxxxxx Xxxxx, XX 00000 and XxxxXxxxXxxx.xxx (FRT) with their
principal place of business located at 0000 XxxXxxxxx Xxxxx, Xxxxx 000, Xxxxxxx
Xxxxx, XX 00000 will constitute a valid and binding agreement, set forth below
in the terms and conditions, and on any Attachments hereto. 2SCAN and
XxxxXxxxXxxx.xxx agree to the following:
1. SERVICES
a. 2CAN will provide advertising sales representation and
consultation for the XxxxXxxxXxxx.xxx, web site(s) (the Service) (see attachment
A for list).
b. 2CAN will update FRT on the progress and demand of the
Internet advertising marketplace, while FRT will update 2CAN on new
opportunities with its Service.
c. FRT and 2CAN acknowledge and agree that 2CAN is an
independent contractor to FRT and not an employee, partner, agent, joint venture
or partner of FRT. 2CAN is an independent contractor and is solely responsible
for all taxes, withholdings, and other similar statutory obligations, including,
but not limited to, worker's compensation insurance.
d. The performance of 2CAN and FRT under this Agreement shall
be conducted with due diligence and in full compliance with the highest
professional standards of practice in the industry.
e. FRT will indemnify and hold 2CAN harmless, and will defend
2CAN against any and all loss, liability, damage, claims, demands or suits and
related costs and expenses to persons or property ("Loss") that arises, directly
or indirectly, from acts or omissions of FRT, in connection with this Agreement
or from breach of any term or condition of this Agreement.
f. 2CAN will indemnify and hold FRT harmless from, and will
defend FRT against any and all loss, liability, damage, claims, demands or suits
and related costs and expenses to persons or property ("Loss") that arise,
directly or indirectly, from acts or omissions of 2CAN, in conjunction with this
Agreement of from breach of any term or condition of this Agreement.
2. AD SERVING & TRACKING
a. By the tenth of each preceding month, FRT will provide 2CAN
with a projection for the subject month of visitors, page views, and banner
advertisement inventory, and an allocation of banner advertisements.
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b. FRT will utilize banner serving through 2CAN. Fees will be
waived and covered by 2CAN for the Service, if 2CAN has, for allocated banner
inventory, 100% control of the allocated banner inventory and 2CAN can run
whatever revenue forms of banners that can be sold to cover banner serving and
bandwidth cost. 2CAN will not run any advertising campaign on the Service, which
is offensive or competitive to FRT businesses. If FRT requests specific paid or
non-paid campaigns to be placed on the Service, FRT agrees to pay 2CAN $.55 net
per thousand (should 2CAN's ad-serving cost decrease, so will the FRT ad-serving
cost), for paid or non-paid open inventory banner serving, auditing and
reporting. 2CAN will deduct fees for such banner serving from checks being sent
to FRT for advertising revenue. If FRT request banners to be served for their
own internal purposes, using the cost listed above, the amount of banner
impressions will not exceed ten percent (10%) of the monthly banner impressions
allocated to 2CAN by FRT to sell.
c. FRT agrees to use 2CAN to deliver 100% of its allocated
banner advertisements within 60 days from the execution of this agreement.
d. 2CAN agrees to use its best efforts to manage the sales mix
of allocated banner inventory, including type of advertisement and CPM, with an
objective of maximizing monthly advertising revenue, and agrees to sell 100% of
allocated banner inventory at a minimum $2 CPM.
3. CONFIDENTIAL INFORMATION
2CAN and FRT understand and agree that in the performance of
this Agreement each party may have access to private or confidential information
of the other party, its parent company, subsidiaries and affiliates, and its and
their customers and suppliers, including but not limited to, trade secrets,
marketing and business plans and technical specifications and information, which
is designated as confidential by the disclosing party in writing, whether by
letter or by the use of a confidential or proprietary stamp or legend, prior to
or at the time it is disclosed to the other party ("Confidential Information").
Included in the definition of Confidential Information, but not by way of
limitation, it is agreed that the identity and other information regarding users
of the Service, the financial information regarding use and development of the
Service, calculation of and the amounts paid 2CAN hereunder shall be considered
Confidential Information of FRT. In addition, information or data that relates
to the business and activities of 2CAN and FRT, their parent companies,
subsidiaries and affiliates and the entities with whom they do business that is
obtained by the other party as a result of this Agreement shall be considered
Confidential Information of such party. Each party agrees that: (1) all
Confidential Information shall remain the exclusive property of the owner; (2)
it shall maintain, and shall cause its employees and agents and subcontractors
to maintain, the confidentiality and secrecy of the other party's Confidential
Information; (3) it shall not, and shall ensure that its employees and agents do
not, copy, publish, manipulate, disclose to others or otherwise use the
Confidential Information of the other party; and (4) it shall return or destroy
all copies of Confidential Information upon request of the other party, and
indemnify and hold harmless the owner from and against all damages and expenses
(including attorneys' fees and costs) arising from a breach of this provision.
Notwithstanding the foregoing, Confidential Information shall not include any
information to the extent it (i) is or becomes a part of the public domain
through no act or omission on the part of the receiving party, (ii) is disclosed
to
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third parties by the disclosing party without restriction on such third parties,
(iii) is in the receiving party's possession, without actual or constructive
knowledge of an obligation of confidentiality with respect thereto, at or prior
to the time of disclosure under this Agreement, (iv) is disclosed to the
receiving party by a third party having no obligation of confidentiality with
respect thereto, (v) is independently developed without access or reference to
the disclosing party's Confidential Information, or (vi) is released from
confidential treatment by written consent of the disclosing party.
4. CLIENTS
a. To avoid possible sales conflicts, 2CAN will not call on
any of the advertising agencies or clients specified by FRT. (See Attachment B
for list).
b. To avoid duplication of sales efforts with CyberReps (FRT
contract expires May 1, 1999), 2CAN shall not pursue any advertiser listed on
Attachment C ("Attachment C") and made a part of this Agreement, however, after
May 1, 1999 2CAN has the right to pursue all advertisers listed in Attachment C.
c. FRT reserves the right to develop an in-house ad sales
staff to coordinate with and supplement 2CAN's ad sales efforts.
5. MARKETING MATERIAL
a. 2CAN will highlight the Service in its World Wide Web site
on the Internet located at xxx.0xxxxxxxx.xxx and within its media kit. FRT will
have rights of advance review and final approval of media kit marketing material
before 2CAN presents it to any potential clients.
b. FRT agrees to provide 2CAN with reasonable amounts of FRT
promotional material so the 2CAN may sell advertising on the Service.
c. Both parties must approve all press releases, announcements
or collateral materials referring to 2CAN-FRT partnership before they are
released to the press or any third party.
d. FRT will authorize 2CAN Media, Inc. to register as FRT's
Agent in all relevant periodicals, directories, and other marketing sources
during the term of this Agreement.
6. TERM AND TERMINATION
a. The term of this exclusive Agreement is one (1) year from
the date of this execution with an evaluation privilege sixty (60), one hundred-
twenty (120), one hundred-eighty (180), two hundred-forty (240), and three
hundred (300) days from such date. At such evaluation periods, 2CAN and FRT will
evaluate advertising revenue performance for the prior two month period,
including a consideration of allocated banner inventory and advertising revenues
generated for FRT, and if revenues are below fifty (50) percent of projections
(see Attachment D) FRT has the option to terminate this Agreement with thirty
(30) days-advanced written notice. Either party may terminate this Agreement at
the end of one (1) year with ninety-(90)
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days-advanced written notice. With the written consent of both parties this
Agreement can be amended at any time during the term of this Agreement. This
agreement will automatically renew for one (1) year in full force at the end of
the term, unless sooner terminated in accordance with the provisions hereof.
b. If either party shall materially breach any provision
contained in the Agreement and such breach shall not have been cured within
thirty (30) days after written notice thereof shall have been given to the
breaching party, the party giving such notice may then give further written
notice to the breaching party immediately terminating this Agreement in which
event this Agreement and rights granted hereunder shall terminate on the date
specified in such further notice. All revenue due FRT minus all ad-serving fees
(as defined in section 2b) and compensation (as defined in section 8) due 2CAN
prior to termination will be paid in accordance with Section 10c. of this
Agreement.
c. 2CAN may, at our sole discretion, decide to terminate this
Agreement immediately if we feel that continuing to represent FRT's Website
conflicts with our standards and the standards being set by other website in our
network. Examples of this include: pornography, excessive violence, abusive
and/or foul language, or a pattern of neglect on the Website such that it
appears FRT is not updating it regularly, or has abandoned it altogether.
7. ACCOUNT BOOKING
Once a month, 2CAN will e-mail advertising schedule details to
FRT, to include cost, banner advertising placement, flight dates, and impression
targets.
8. COMPENSATION
For all advertising revenue booked on the Service during the
term of this Agreement, 2CAN will receive Thirty percent (30%) commission on all
net advertising revenues sold by this Service.
9. EXPENSES
2CAN will be solely responsible for all expenses related to
client entertainment and travel expenses.
10. INVOICING
a. Collection. 2CAN will invoice and collect all allocated
advertising revenue that it books for FRT.
b. Billing. Billing by 2CAN is calculated using gross invoice
amount, equal to CPM in effect at the time of signature of the Insertion Order,
multiplied by the number of Impressions delivered divided by one thousand. The
net invoice amount is the gross invoice amount less a 15% agency commission
(where applicable). The invoice sent by 2CAN to the Advertiser will include both
a gross invoice amount and the net invoice amount in applicable situations. 2CAN
shall pay FRT the amount for each campaign calculated from the net invoice
amount billed to the Advertiser (i.e., the amount that we are actually due to
receive from the Advertiser), less 2CAN's Commission, as set forth in Section 8.
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c. Payment. 2CAN shall remit amounts due to FRT within fifteen
(15) business days from when we are in receipt of payment or within 120 days of
the end of the campaign, whichever occurs first.
d. Any advertiser who becomes a bad debt client (non-payment
greater than sixty (60) days shall be restricted from the Service until the
account is current.
E. Reports. 2CAN will provide written details of 2CAN
generated activity on the Website. These reports will be bi-weekly, at a
minimum, summarize the 2CAN xx xxxxxxxxx, including (i) the number of
Impressions delivered, (ii) the type of advertisement (e.g. site specific,
network/ bundled)and the corresponding CPM and (iii) the total revenue
generated.
11. GENERAL
a. If any action at law or in equity is necessary to enforce
or interpret the terms of this Agreement, the prevailing party shall be entitled
to reasonable attorneys' fees, costs and necessary disbursements, in addition to
any other relief to which the party may be entitled.
b. This Agreement constitutes the entire understanding between
the parties, and supersedes all prior negotiations or understandings between the
parties concerning the subject matter contained in this Agreement.
c. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California applicable to contracts
made and performed in California without regard to conflicts of law principle.
The parties hereto submit to the exclusive jurisdiction of the Federal courts
located in the County of Los Angeles, California for the purpose of resolving
any dispute relating to the subject matter of this Agreement.
d. The provisions of this agreement are severable and the
invalidity or unenforceability of any provisions hereof shall not affect the
validity or enforceability of the other provisions hereof.
12. FRT'S REPRESENTATIONS AND WARRANTIES.
FRT represents and warrants that (i) it has full power and
authority to enter into this Agreement, (ii) this Agreement does not conflict
with any other agreement or commitment made by FRT, (iii) it shall not do
anything to harm or bring into disrepute or disparage 2CAN or any Advertiser,
(iv) the Website is year 2000 compliant, and (v) it will use its best efforts to
provide its services in accordance with the terms of this Agreement and in
accordance with industry standards.
13. 2CAN'S REPRESENTATIONS AND WARRANTIES.
2CAN represents and warrants that
(i) it has full power and authority to enter into this
Agreement, (ii) this Agreement does not conflict with any other agreement or
commitment made by FRT, (iii) it shall not do anything to harm or bring into
disrepute or disparage 2CAN or any Advertiser, (iv) it will
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use its best efforts to provide its services in accordance with the terms of
this Agreement and in accordance with industry standards.
14. EXCLUSION OF DAMAGES.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL,
INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO,
LOSS OF DATA, LOSS OF USE, OR LOSS OF PROFIT ARISING HEREUNDER OR FORM THE
PROVISION OF SERVICES, INCLUDING ADVERTISING ON FRT'S WEB SITE, EVEN IF ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of March 10, 1999:
2CAN Media, Inc.: XxxxXxxxXxxx.xxx:
By: /s/ Xxxxx X'Xxxxx By: /s/ Xxxx Xxxx
---------------------------- --------------------------
Name: Xxxxx X'Xxxxx Name: Xxxx Xxxx
Date: March 10, 1999 Date: March 10, 1999
Title: Manager, Business Development Title: President
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Attachment A
This Attachment dated March 10, 1999 supersedes any previous
drafted Attachment. Representation by 2CAN for XxxxXxxxXxxx.xxx includes the
following Website(s):
Site Name - xxxx://xxx.xxxxxxxxxxxx.xxx
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Attachment B
This Attachment dated March 10, 1999 supersedes any previous drafted
Attachment.
The following is a list of Accounts and/or Categories that FRT will
directly sell advertising to or FRT finds competitive to their Service. 2CAN is
not to contact any of the following accounts on behalf of FRT, unless FRT
formally notifies 2CAN in writing. If FRT runs any of the following Accounts
and/or Categories using 2CAN's banner serving service, FRT agrees to pay the set
Tracking Fee as determined in Section 2.
A. Co-Brands
Big Charts -- xxx.xxxxxxxxx.xxx
Xxxxxxxx.xxx -- xxx.xxxxxxxx.xxx
Business Wire -- xxx.xxxxxxxxxxxx.xxx
Individual Investor Online -- xxx.xxxxxxxx.xxx
InfoSpace -- xxx.xxxxxxxxx.xxx
Internet Stock News -- xxx.xxxxxxxxxxxxxxxxx.xxx
XXX.xxx -- xxx.xxx.xxx
Market Guide -- xxx.xxxxxxxxxxx.xxx
Wall Street Traders -- xxx.xxxxxxxxx.xxx
Zack's Investment Research -- xxx.xxxxx.xxx
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Attachment C
This Attachment dated March 10, 1999 supersedes any previous
drafted Attachment.
Current Advertisers
AF Trader
Ameritrade - xxx.xxxxxxxxxx.xxx
Datek - xxx.xxxxx.xxx
DLJ Direct
Multex Investor Network
Quick & Xxxxxx
S&P Personal Wealth
Scottrade - xxx.xxxxxxxxx.xxx
Xxxxx Xxxxxx
Stock Buyer
Stock Find
Stock Genie
The Stock Page
StockPoint
StockVantage
Strong Funds
Suretrade - xxx.xxxxxxxxx.xxx
XxxXxxxxx.xxx
USANet
Company
ABN Amro
Accutrade/Xxxxx Group
AFTrader
AIM Funds/Interactive Deutsch
All-American Brokers (xxxxxxx.xxx)
AllState Corporation
AllState/Xxx Xxxxxxx
American Century/Chase/Organic Online
American Century/ibank/Xxxxx Xxxxxxx & A...
Ameristock Mutual Funds
Ameritrade Holding Corp.
Ameritrade/OgilvyOne Worldwide
AmEx Financial Advisor's/Wunderman, Cato,...
Xxxxxxxx Consulting
AT&T/Modem Media
Atlanta Internet Bank
Atlanta Internet Bank, S&P/K2 Design
Bank Boston/Hill Holiday
Bank of America/LeftField
Baseline Financial Services
Big Charts
British Airways
Broadview Associates
Xxxxxx Brothers
Brookstone
Xxxxx & Co./Xxxxxxx
Xxxxx. & Co./Gearon & Xxxxxxx
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Bull & Bear
Cadillac/Pontiac/DMB&B
Xxxxxxx Group
Xxxxxxx Xxxxxx/KP Media
Chicago Board Options Exchange
Citicorp
CS First Boston
Datek Securities Corporation (Datek Online)
Datek/Upside/Strong Funds/Mediaplex
Datek/Web Connect
DBC Online (Data Broadcasting Corp.)
Delta Airlines/Modem Media
Discover Brokerage Firm/J. Xxxxxx Xxxxxxxx
Discover Brokerage/Lot2l
DLJ Direct
Dreyfus Corporation
Dreyfus/Citron, Haligman, Bedecarre
Dreyfus/edreyfus
Dreyfus/edreyfus/Xxxxx Xxxx-Xxxxxx
E-Forex
E-Trade
E-Trade (Gotham)
E*Trade (Modem Media)
Xxxxxx Xxxxx
Ernst & Young
FarSight Financial
Fidelity Investments
Financial Intranet
First Union Bank/Xxx Xxxxx
Forbesnet
Founders Asset Management
Franklin Xxxxxxxxx
Freedom Investments
Xxxxxxx Sachs
H & R Block
H & R Block/Wunderman, Cato, Xxxxxxx
Xxxxxxxxx & Xxxxx
IMF Corporation
Individual lnvestor Online/Digital Pulp
Innotech Multimedia Corporation
InterAdNet
Intuit (Quicken)
INVESCO Funds Group, Inc.
InvesTools
J. and X. Xxxxxxxx
Jaguar Cars Inc.
Jaguar/OgilvyOne Worldwide
Janus Funds
Janus Funds/Think New Ideas
JB Oxford & Company
Xxxx Xxxxxxx Mutual Life Insurance
Xxxx Xxxxxxx/Modem media
K Aufhauser & Company, Inc.
Xxxxxxxx Fund. Inc.
KOSTECH Small Cap research
KPMG Peat Marwick LLP
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Liberty Financial Companies
Lincoln Financial/Beyond Interactive
Xxxx-Xxxxxxx & Company
Mastercard International
Mastercard International/Multimedia Resources
MCI/Xxxxxxx, Xxxxxx
MCSI Consulting Group
Xxxxxxx Xxxxx
Xxxxxxx Xxxxx & Co., Inc.
Xxxxxxx Xxxxx/J. Xxxxxx Xxxxxxxx
Messner, Vetere, Xxxxxx. XxXxxxx, Schme...
MetLife
Microsoft Investor/Xxxxxxxx Xxxxxx
Microsoft Investor/Home Advisor
Microsoft Money/Xxxxxxxx Xxxxxx
Microsoft/Xxxxxxxx Xxxxxx
Money Magazine/ALC Interactive
MoneyNet (Reality Online)
Xxxxxxxxxx Securities
Xxxxxxxxxx Securities/Goodby Xxxxxxxxxxx
Xxxxxx Xxxxxxx & Co. Inc.
Xxxxxxxxxxx.xxx
Xxxxxxxx & Xxxxxxxx
Mr. Stock
Xxxxxxxxxx & Company
Multex Investor Network/i33
Multex Systems
Mutual Funds Encyclopedia.
National Discount Brokers
National Discount Brokers/Xxxxxx Xxxxxxxxxx
Xxxxxxxxx & Xxxxxx Management Services
Northwestern Mutual Life Insurance Co.
Olde Discount Corporation
Pacific Continental Securities Corp./US Invest
PaineWebber Inc.
Paradigm Interactive/lstTennessee Bank/La...
Paradigm Interactive/Crestar Financial
Xxxxx Stock Picks
Pioneer Capital Corp.
Price Waterhouse LLP
Xxxxxx Investments
Quick & Xxxxxx
Quick & Xxxxxx/in2
Quick & Xxxxxx/Publicis Bloom
Xxxxxxxxx Xxxxxxxx & Co.
S&P Personal Wealth/K2 Design
Saab Cars USA, Inc.
Saab/The Xxxxxx Agency
Saab/The Xxxxxx Agency
Xxxxxxx Xxxxx Barney/Xxxxxx.xxx
Schwab/Partners & Xxxxxx
Scottrade Securities (Scottsdale Securities)
SEI Investments
Select Information Exchange
Xxxxx Xxxxxx
Sovereign Securities, Inc (mydiscountbroker...
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Sprint Corporation
Sprint/Eagle River Interactive
Standard & Poor's
Xxxxx Xxx & Farnham
Stock Genie
Stock Genie/Ad Shop
Stock Group
StockBuyer/Impact Marketing
StockPage
StockPoint
StockScape
Stocksite (xx0.xxx)
StockSmart
XxxxxxXxXxxxx.xxx
Strong Capital Management (Strong Funds)
Strong Funds
SURETRADER/i33
X. Xxxx Price
The Future Superstock
The Image Team
The Principal Financial Group
The Roman Group/PCFN
The Sharper Image
Xxxxxxxxx.xxx/XXX
Xxxxxxxxx.xxx/XXX NY
Xxxxxxx Investors Network
Xxxxxxx Investors Network/ReaXions
Paradigm Interactive/1stTennessee Bank/La...
Paradigm Interactive/Crestar Financial
Xxxxx Stock Picks
Pioneer Capital Corp.
Price Waterhouse LLP
Xxxxxx Investments
Quick & Xxxxxx
Quick & Xxxxxx/in2
Quick & Xxxxxx/Publicis Bloom
Xxxxxxxxx Xxxxxxxx & Co.
S&P Personal Wealth/K2 Design
Saab Cars USA, Inc.
Saab/The Xxxxxx Agency
Saab/The Xxxxxx Agency
Xxxxxxx Xxxxx Barney/Xxxxxx.xxx
Schwab/Partners & Xxxxxx
Scottrade Securities (Scottsdale Securities)
SEI Investments
Select Information Exchange
Xxxxx Xxxxxx
Sovereign Securities, Inc (mydiscountbroker...
Sprint Corporation
Sprint/Eagle River Interactive
Standard & Poor's
Xxxxx Xxx & Famham
Stock Genie
Stock Genie/Ad Shop
Stock Group
StockBuyer/Impact Marketing
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StockPage
StockPoint
StockScape
Stocksite (xx0.xxx)
StockSmart
XxxxxxXxXxxxx.xxx
Strong Capital Management (Strong Funds)
Strong Funds
SURETRADE/133
X. Xxxx Price
The Future Superstock
The Image Team
The Principal Financial Group
The Roman Group/PCFN
The Sharper Image
Xxxxxxxxx.xxx/XXX NY
Xxxxxxx Investors Network
Xxxxxxx Investors Network/ReaXions
Thunder House (Chase Bank, SGI)
Thunder House/Xxxxxxx
Thunder House/Xxxxx Xxxxxx
Trading Direct
Union Bank of Switzerland
US Trust
Vanguard Group
VestCom Holdings Inc./StockVantage
Vital Information
Wall Street Access Discount Brokerage
Xxxx Xxxxxx Xxxx
Xxxx Xxxxxx Journal Interactive/Xxxxxxx & A...
Waterhouse Securities (Web Broker)
Web Street Securities
Web Street Securities/DDB Xxxxxxx
Wellington Capital
Xxxxx Fargo
Xxxxxx Brothers
Yoyodyne/Beyond Interactive
Zurich Xxxxxx Investments
