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Exhibit 10.19
Interactive Advertising Agreement
Xxxxxxxxxx.xxx Xxxxxxxx.xxx
Global Discount Travel Services, LLC Macmillan Digital Publishing USA
000 Xxxxx Xxxxxxx Xxxxx 000 Xxxx 000xx Xxxxxx
Xxx Xxxxx, XX 00000 Xxxxxxxxxxxx, XX 00000
2Can Media, Inc.
00000 Xxxxxxx Xxxx.
Xxxxxxxx Xxxxx, XX 00000
Sponsorship/Booking Engine Program:
Subject to the terms and conditions of this Agreement, Xxxxxxxxxx.xxx, a
Division of Global Discount Travel ("Xxxxxxxxxx.xxx") will become the official
integrated travel booking-engine of Xxxxxxxx.xxx (the "MDP Website"), a division
of Macmillan Digital Publishing USA ("MDP"), and 2Can Media, Inc. ("2Can") shall
be responsible for all billing and provide services for the placement and
maintenance of all ads except MDP house ads. In addition, 2Can shall provide
certain MDP Website tracking reports to Xxxxxxxxxx.xxx and the MDP Website. The
Effective Date of this agreement shall begin October 15, 1998.
1. MDP Obligations
a. MDP and Xxxxxxxxxx.xxx shall work together to develop a customized,
co-branded booking engine (the "Co-branded Booking Engine") on the
MDP Website where users can book travel using the Xxxxxxxxxx.xxx
proprietary travel booking engine (the "Engine"). MDP retains final
approval over the design of the co-branded booking engine bridge
pages; such consent shall not be unreasonably withheld.
b. The MDP Website shall display a minimum of [CONFIDENTIAL TREATMENT
REQUESTED] banner impressions per month on the MDP Website. These
impressions will be run of site and link directly to the Co-branded
Booking Engine or the Xxxxxxxxxx.xxx website.
c. The MDP Website shall display a fixed Xxxxxxxxxx.xxx branded button
on the MDP Website homepage, which shall appear above the fold and
links directly to the Co-branded Booking Engine. This placement will
exist for the term of this agreement.
d. The MDP Website shall display a fixed Lowestfare.com-branded button
on all U.S. and International destination pages on the MDP Website.
Such button shall link directly to the Co-branded Booking Engine.
This placement will exist for the term of this agreement.
e. MDP shall coordinate PR and publicity effort via joint press release
with Xxxxxxxxxx.xxx highlighting the partnership set forth in this
Agreement. Such press release shall be written by MDP and MDP shall
obtain prior approval from Xxxxxxxxxx.xxx.
f. The MDP Website shall include an exclusive sponsorship position in
four "Hot
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Spots of the Month" promotions. The specific months of the
sponsorship shall be chosen by Xxxxxxxxxx.xxx from the MDP Website's
editorial calendar
(Exhibit B). Selections made after October 1 shall be subject to
availability. All sponsorship links will be to the Co-branded Booking
Engine. In addition each Hot Spot of the Month sponsorship will include
the following:
(i) MDP Website homepage promotional billboard (see example at
xxx.xxxxxxxx.xxx) during each month of sponsorship/[CONFIDENTIAL
TREATMENT REQUESTED] impressions per sponsorship.
(ii) Eight (8) e-mail newsletter promotions per month of sponsorship (32
total/CONFIDENTIAL TREATMENT REQUESTED] impressions per sponsorship.
(iii) In-house banner campaign promoting Xxxxxxxxxx.xxx's sponsorship of
the Hot Spot/[CONFIDENTIAL TREATMENT REQUESTED] impressions each
month of sponsorship.
(iv) Exclusive Hot Spot of the Month impressions reserved for sponsor
only/[CONFIDENTIAL TREATMENT REQUESTED] impressions each month of
sponsorship. Sponsor receives all impressions generated for each
month of sponsorship within the Hot Spot of the Month pages.
(v) Names collected via contest entry process given to Xxxxxxxxxx.xxx
for database collection and marketing efforts for each month of
sponsorship.
(vi) 2Can Media will provide [CONFIDENTIAL TREATMENT REQUESTED] banner
impressions per each month of sponsorship on their network of
websites. A representative list of 2CAN Media Network sites is
attached in Exhibit E. Impressions will not be applied on the
following 2Can Media websites: Teen Magazine Online, Mass Music,
National Inquirer Online, PCGame, or Xxxx Xxxx.
g. MDP shall provide guaranteed impressions as set forth in Exhibit C.
2. Xxxxxxxxxx.xxx Obligations
a. Xxxxxxxxxx.xxx shall be responsible for hosting, upkeep and
fulfillment duties on all linked pages of the Engine and will use
its best efforts to provide commercially reasonable backup resources
to make those pages available to end users of the MDP Website 24
hours per day. These resources will include computer and networking
capacity that provide Web page response times for end users
substantially equivalent to Xxxxxxxxxx.xxx booking engine response
times.
b. Users of the MDP Website who choose to call the Xxxxxxxxxx.xxx
Internet Customer Service Center in Las Vegas, NV (USA) will be
handled with the same high level of customer service as is offered
to all other users of Xxxxxxxxxx.xxx's Internet products.
c. Hotspot of the Month Sponsorship
(i) Xxxxxxxxxx.xxx shall provide one vacation package per
one-month sponsorship. Each prize must include a minimum of
two round-trip airfare tickets to the highlighted destination
and accommodations for at least 5 nights to the highlighted
destination. Each Hot Spot of the Month prize shall have a
published value of at least $3,000 but must not exceed
$10,000.
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(ii) Choice of four Hot Spot of the Month sponsorships must be
chosen no later than October 1, 1998. The list of Hot Spot of
the Month destinations are outlined in Attachment B.
(iii) Names collected remain the property of MDP and may not be
shared with or sold to any company other than Xxxxxxxxxx.xxx.
d. The package outlined above does not preclude MDP or the MDP Website
from accepting advertising from individual carriers, lodgers, rental
car agencies, tour providers, other travel providers or other online
travel sites. Notwithstanding the foregoing, no advertising shall
appear on the Co-branded Booking Engine with the exception of MDP
in-house/internal advertising.
e. Xxxxxxxxxx.xxx will supply creatives to 2Can Media as described in
Exhibit A.
f. Xxxxxxxxxx.xxx shall verify credit card information, process all
transactions originating on the MDP Website via the Engine, and
handle the fulfillment and post-transaction customer service, and
collect all applicable sales and other taxes for all orders received
from end users.
Xxxxxxxxxx.xxx will provide MDP with monthly reports of number of visitors
to Xxxxxxxxxx.xxx from the MDP Website as well as number of completed
bookings from these visitors. Reports should be delivered by the end of
the first week in the following month and should be e-mailed to Xxxxxxx
Xxxxxx at xxxxxxx@xxx.xxx.
3. 2Can Media Obligations
a. 2Can shall provide access and detailed tracking reports to
Xxxxxxxxxx.xxx and MDP to evaluate effectiveness of the MDP
campaign. Reporting may include, but is not limited to the
following:
(i) Total delivered impressions by day/week/month by banner
(ii) Total "adclicks" delivered by day/week/month by banner
(iii) Cumulative "adclicks" for the campaign by banner
(iv) Total "impressions" and "adclicks"
(v) Total cumulative report for all banners
b. All monthly 2Can Media reports as described above should be
delivered to Xxxxx Xxx at xxxx@xxxxxxxxxx.xxx, or as determined by
Xxxxxxxxxx.xxx, and Xxxxxxx Xxxxxx at xxxxxxx@xxx.xxx at the end of
each month for the length of this agreement.
4. Pricing and Payment
For and in consideration of the agreements contained herein, xxxxxxxxxx.xxx
agrees to pay 2Can Media, as an agent for MDP, the following non-refundable
fees:
a. [CONFIDENTIAL TREATMENT REQUESTED] per month ([CONFIDENTIAL
TREATMENT REQUESTED] annual cost) for the Term of this Agreement.
b. Two months' pre-payment ([CONFIDENTIAL TREATMENT REQUESTED]) is due
upon execution of this Agreement.
c. All payments are due 30 days net from receipt of invoice.
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d. All payments under this Agreement shall be sent to:
2Can Media
00000 Xxxxxxx Xxxx.
Xxxxxxxx Xxxxx, XX 00000
5. Term and Termination
a. The term of this Agreement shall be one (1) year from the Effective
Date (the "Term"). Thereafter, Xxxxxxxxxx.xxx will be given first
right of refusal to renew this Agreement for additional one (1) year
terms, for a period of two (2) additional years (each such renewal
shall be considered a Term), subject to the consent of MDP and under
the following conditions:
b. A full review of the program as described in this Agreement will be
executed by both parties in June of each year to assess
effectiveness of campaign and next steps as mutually agreed upon by
both parties
c. MDP will honor the same discounted rate of [CONFIDENTIAL TREATMENT
REQUESTED]for Xxxxxxxxxx.xxx relative to the present
agreement-pricing model against fair market value for the program at
the end of the first twelve months. Fair market value will be
derived from similar elements used in pricing the present agreement
(traffic estimates, promotional value, booking engine exclusivity,
etc.), and must reflect true market value as deemed appropriate by
both parties.
d. Either party may terminate this Agreement upon sixty (60) days prior
written notice to the other party, if the other party breaches any
material term of this Agreement, unless such breach is cured within
a thirty (30) day period.
e. The election of either party to terminate this Agreement pursuant to
Paragraphs 5.d. hereof shall not serve to waive, limit, bar or
otherwise extinguish any rights that party may have to pursue and
recover any damages that party may have suffered or incurred due to
the breach of any term or condition of this Agreement.
6. Warranty and Indemnification
a. Xxxxxxxxxx.xxx warrants and represents that it has the right, power
and authority to enter into this Agreement; that Xxxxxxxxxx.xxx's
execution and delivery of this Agreement will not violate any
material contractual or other obligation, that nothing in the
agreement, including the Engine, will infringe the copyright,
trademark, U.S. patent or any other right of any person or entity
and will not infringe any copyright or other personal or proprietary
right of any person or entity. Xxxxxxxxxx.xxx further warrants and
represents to the best of their knowledge that the Engine is free of
any software virus, worm, virus macro, Trojan Horse, or other such
component designed to permit unauthorized access, to disable, erase,
or otherwise harm or maliciously alter software, hardware or data.
The Engine shall be Year 2000 Compliant. "Year 2000 Compliant" shall
mean that the Engine shall not experience any abnormality,
malfunction, or degradation in its operation simply as a result of
changing date values in connection with moving from the calendar
year 1999 to the calendar year 2000. Xxxxxxxxxx.xxx shall indemnify
and hold MDP and its affiliates and their respective partners,
directors, officers, employees, agents, successors, assigns and
licensees harmless from and against any loss, liability, damage or
expense (including reasonable
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attorneys' fees and legal costs) arising out of a claim by a third
party and resulting from any breach or alleged breach of
Xxxxxxxxxx.xxx representations and warranties contained in this
Agreement. Xxxxxxxxxx.xxx shall have the sole right to control the
defense of any such claim and shall consult with MDP prior to
settlement thereof. MDP agrees to provide reasonable assistance to
Xxxxxxxxxx.xxx at Xxxxxxxxxx.xxx's expense, in the defense of same.
MDP shall have the right to approve any settlement which does not
provide a full and complete release of MDP liability in connection
with the settlement of such indemnified claim.
b. MDP represents and warrants to Xxxxxxxxxx.xxx that it has the right,
power and authority to enter into this Agreement; that it is the
owner and copyright holder of xxx.xxxxxxxx.xxx, that MDP's execution
and delivery of this Agreement will not violate any material
contractual or other obligation; that nothing in the Agreement as
provided to Xxxxxxxxxx.xxx by MDP will be libelous, obscene, or
invade the right of privacy or violate or infringe the copyright,
trademark or any other right of, any person or entity; that
Xxxxxxxxxx.xxx's exercise of its rights under this Agreement
pursuant to the terms of this Agreement will not violate or infringe
the copyright, U.S. trademark or any other right of any person or
entity. MDP shall indemnify and hold Xxxxxxxxxx.xxx and its
affiliates and their respective partners, directors, officers,
employees, agents, successors, assigns and licensees harmless from
and against any loss liability, damage or expense (including
reasonable attorneys' fees and legal costs) arising out of a claim
by a third party and resulting from any breach or alleged breach of
MDP's representations and warranties contained in this Agreement.
MDP shall have the sole right to control the defense of any such
claim and shall consult with Xxxxxxxxxx.xxx prior to settlement
thereof. Xxxxxxxxxx.xxx agrees to provide reasonable assistance to
MDP at MDP's expense, in the defense of same. Xxxxxxxxxx.xxx shall
have the right to approve any settlement which does not provide a
full and complete release of Xxxxxxxxxx.xxx liability in connection
with the settlement of such indemnified claim.
c. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY
INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT
LIMITATION, DAMAGES FROM LOST PROFITS OR GOODWILL, WHETHER OR NOT
THAT PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH
DAMAGE.
d. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS PARAGRAPH, EACH PARTY
PROVIDES ALL MATERIALS AND SERVICES PERFORMED BY SUCH PARTY UNDER
THIS AGREEMENT "AS IS". MDP MAKES NO WARRANTIES WITH RESPECT TO THE
MDP WEBSITE OR THE CO-BRANDED BOOKING ENGINE, EXPRESS OR IMPLIED,
AND MDP EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT
LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE. XXXXXXXXXX.XXX MAKES NO WARRANTIES WITH
RESPECT TO THE XXXXXXXXXX.XXX BOOKING ENGINE, EXPRESS OR IMPLIED,
AND XXXXXXXXXX.XXX EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES,
INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A
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PARTICULAR PURPOSE.
7. Ownership
Each party owns and shall retain all rights, title and interest in and to its
names, logos and service marks, proprietary features and proprietary technology,
trade secrets, patents, copyrights, trademarks, know-how and other proprietary
rights of any type under the laws of any governmental authority, domestic or
foreign, including rights in and to all applications and registrations relating
to any of the foregoing (the "Intellectual Property Rights"), or other rights of
each party, including any such rights in and to any information or works
contributed by such party to the Co-Branded Booking Engine shall at all times be
and remain the sole and exclusive property of such party. All present and future
rights in and title to the Engine are reserved to Xxxxxxxxxx.xxx for its
exclusive use and MDP shall have no proprietary rights and shall acquire no
proprietary rights to the Engine by virtue of this Agreement. All present and
future rights in and title to the MDP Website (including the right to exploit
the MDP Website over any present or future technology) are reserved to MDP for
its exclusive use and Xxxxxxxxxx.xxx shall have no proprietary rights and shall
acquire no proprietary rights to the MDP Website by virtue of this Agreement.
Except as specifically permitted herein, Xxxxxxxxxx.xxx may not copy or make any
use of the MDP Website. Except as specifically permitted herein, neither party
shall use the trademarks, trade names, service marks, trade dress, logos or
titles of the other party, or the names of any individual participant in, or
contributor to, such party's intellectual property, or any variations or
derivatives thereof, for any purpose, without such party's prior written
approval.
8. Confidentiality
a. Confidential Information. Each party hereto (the "Disclosing Party")
will disclose to the other party ("Recipient") information in
connection with the performance of this Agreement. All information
disclosed by the Disclosing Party to the Recipient during the term
of this Agreement, including but not limited to technical and
business information relating to Disclosing Party's products,
research and development, production, costs, engineering processes,
profit or margin information, finances, customers, marketing, and
future business plans, shall be deemed "Confidential Information."
All Confidential Information shall remain the sole property of
Disclosing Party and Recipient shall have no rights to or in the
Confidential Information. Recipient agrees that it shall hold the
Confidential Information in strict confidence. Recipient further
agrees that it shall not make any disclosure of the Confidential
Information (including methods or concepts utilized in the
Confidential Information) to anyone without the express written
consent of Disclosing Party, except to employees, consultants or
agents to whom disclosure is necessary to the performance of this
Agreement and who shall be bound by the terms hereof, or to the
extent it is required to disclose such information in the context of
any administrative or judicial proceeding; provided that prior
written notice of such required disclosure and an opportunity to
oppose or limit disclosure is given to Disclosing Party.
b. Return of Information. After termination of this Agreement, upon
written request, Recipient shall return within ten (10) business
days all originals and copies thereof of any requested Confidential
Information disclosed by Disclosing Party which has been fixed in
any tangible means of expression.
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c. Exceptions. Nothwithstanding the other provisions of this Agreement,
nothing received by Recipient shall be considered to be Confidential
Information of the other, if: (i) it has been published or is
otherwise readily available to the public other than by a breach of
this Agreement; (ii) it has been rightfully received by Recipient
from a third party without confidentiality limitations; (iii) it was
known to Recipient prior to its first receipt by Recipient, as shown
by files existing at the time of initial disclosure, or. (iv) is
required to be disclosed by a court of competent jurisdiction, by
Federal, state or local laws or by Federal, state or local agencies
including as part of any filing with the Securities and Exchange
Commission.
d. No Disclosure of Terms of this Agreement. Each party agrees that,
without the prior written consent of the other party, it will not
disclose to any third party the material terms of this Agreement,
except as required by law or regulatory body. The existence of this
Agreement may be disclosed without prior written consent.
9. Miscellaneous
a. The relationship between MDP, Xxxxxxxxxx.xxx and 2Can will be that
of independent contractors, and none of the parties nor any of their
respective officers, agents or employees will be held or construed
to be partners, joint ventures, fiduciaries, employees or agents of
the other.
b. This Agreement and its performance shall be governed by the laws of
the state of New York, without giving effect to any conflict of laws
provisions. The parties hereto consent and submit to the
jurisdiction of the state and federal courts in the state of New
York in all questions and controversies arising out of this
Agreement.
c. Except with respect to the performance of a party's payment
obligations under this Agreement (which shall be unconditional),
neither party shall be liable for delay or failure in its
performance hereunder to the extent that such failure or delay is
caused by any act of God, war natural disaster, strike, lockout,
labor dispute, work stoppage, fire, serious accident, act of
government or any other cause, whether similar or dissimilar, beyond
the reasonable control of that party.
d. Neither party may assign, convey, subcontract or delegate this
Agreement, or any of such party's rights, duties or obligations
hereunder, without the prior written consent of the other party;
provided however that either party may assign, delegate or
subcontract any or all of its rights, duties and obligations here
under to an affiliate or subsidiary or in the event of a major
internal corporate reorganization without the other party's consent.
e. All rights, remedies and obligations of the parties shall accrue and
apply solely to the parties and their successors and permitted
assigns and there is no intent to benefit any third parties.
f. This Agreement contains the entire agreement between the parties
relating to the subject matter hereof, supersedes any prior
understandings or agreements (whether oral or written) between the
parties regarding the subject matter, and may not be amended or
modified except in writing as mutually agreed by the parties.
g. The Exhibits to this Agreement are incorporated into this Agreement
and form a part hereof for all intents and purposes.
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h. No waiver of a breach of any provision of this Agreement by either
party shall constitute a waiver of any subsequent breach of the same
or any other provision hereof, and no waiver shall be effective
unless made in writing and signed by a duly authorized
representative of the waiving party.
i. This Agreement may be executed in separate counterparts, each of
which when so executed and delivered shall be an original, but all
such counterparts shall together constitute but one and the same
instrument. Execution may be effected by delivery of facsimiles of
signature pages (and the parties shall follow such delivery by
prompt delivery of originals of such pages).
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x _________________________________ x ______________________________________
Xxxx Xxxxxxx Xxxx Xxxxxx
President CEO
Macmillan Digital Publishing, USA Xxxxxxxxxx.xxx, A Division
of Global Discount Travel Services,
L.L.C.
Date: _____________________________ Date: __________________________________
x__________________________________
Xxxxxxx Xxxxxx
Vice President of Sponsorship and Syndication
2Can Media, Inc
Date: _____________________________
