EXHIBIT 10.3
Addendum No. 1
This Addendum No. 1, dated as of July 10, 2002 (the
"Addendum Date"), hereby amends the DART Service Attachment for Publishers by
and between DoubleClick Inc. ("DoubleClick"), and L90, Inc. ("Company"), dated
as of October 2, 2001 (the "Agreement"), and the DoubleClick Master Services
Agreement by and between DoubleClick and L90, dated as of October 2, 2001 (the
"Master Agreement"). Capitalized terms used herein but not otherwise defined
herein shall have the meanings assigned to such terms in the Agreement and
Master Agreement.
1. The parties hereby agree that the Monthly Service Fee provisions at the
commencement of the Custom Arrangements section of the Agreement is
replaced in its entirety with the following, and the pricing below
shall apply from the date of this Addendum No.1 through the end of the
DFP Term:
MONTHLY SERVICE FEE
A. $0.15 CPM flat fee rate for all ads (including house ads and
redirects, but excluding those ad units set forth in Items C, D and E
below) served by DoubleClick hereunder during years 1 through 4 of the
DFP Term (subject to the Pricing Review described below)
B. $0.14 CPM flat fee rate for all ads (including house ads and
redirects, but excluding those ad units set forth in Items C, D and E
below) served by DoubleClick hereunder during year 5 of the DFP Term
(subject to the Pricing Review described below)
C. 1x1 pixels = $0.08 CPM; power ads and other above the browser ads
(e.g., pop-ups and pop-unders) that require two ad calls will be priced
as one ad; and large file size pricing = $.025 CPM uplift (from the
rates in Item A. and B. above) for every 25k an ad's file size is above
20k.
D. CLICK FEE: If You elect to use a DoubleClick tag to track the click,
without, at the same time, delivering an ad impression associated with
such tag, You shall be charged a click fee equal to $.01 /click.
E. Bounce Backs. Bounce Backs (defined as occurring when an internal
redirect from a DFP network other than Your own (the "Redirecting
Site") is sent to Your DFP network and does not result in an ad being
served from Your DFP network, but instead, the ad call is fulfilled by
the Redirecting Site) will be free of charge to You and no impression
will be tracked on Your DFP network.
MINIMUM MONTHLY IMPRESSION LEVELS
You agree (i) to serve a minimum of one hundred million (100,000,000)
impressions per month for the period of January 1, 2002 through June
30, 2002 using the DFP Service pursuant to this DFP Attachment, (ii) to
serve a minimum of one and three quarters billion (1,750,000,000)
impressions per month for the period of July 1, 2002 through June 30,
2004, using the DFP Service pursuant to this DFP Attachment, and (iii)
to serve a minimum of one and one half billion (1,500,000,000)
impressions per month for the period of July 1, 2004 through September
30, 2006 (such minimum monthly impression levels described above to be
collectively referred to as the "Minimum Monthly Impression Level(s)").
Notwithstanding the above, if in any month of the DFP Term, the total
number of ad impressions delivered on the L90 Network (defined below)
through the DFP Service and any other ad serving solution used by You,
drops below such month's applicable Minimum Monthly Impression Level,
and You are able to provide DoubleClick with reasonable evidence of
such fact, certified by an officer of Yours, DoubleClick agrees to
adjust Your Minimum Monthly Impression Level for such month (each such
month, an "Exception Month") to equal one hundred percent (100%) of the
total number of ad impressions delivered on the L90 Network through the
DFP Service and any other ad serving solution used by You.
To the extent You and Your Affiliates (defined below) fail to meet the
applicable Minimum Monthly Impression Level in any month of the DFP
Term, You shall pay to DoubleClick additional DFP service fees so that
the total amount for ad serving services paid to DoubleClick for such
month (i.e., the applicable Minimum Monthly Impression Level
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multiplied by Your then-current ad serving CPM flat rate) is equal to
the amount that should have been paid to DoubleClick if the applicable
Minimum Monthly Impression Level had been met. For example, if during
the month of January 2003, You served and paid for one billion
(1,000,000,000) impressions using the DFP Service pursuant to this DFP
Attachment, and such month was not an Exception Month, then You would
owe DoubleClick an additional amount equal to 750,000,000 impressions,
multiplied by a $0.15 CPM. Such payment shall be DoubleClick's sole and
exclusive remedy for a breach of this provision.
Notwithstanding the above, if, as a result of DoubleClick's settlement
of the multi-state investigation of its ad serving and data collection
practices, DoubleClick is required to materially alter the manner in
which it provides the DFP Service to You, and such change materially
adversely impairs functionality of the DFP Service which is material to
Your use of the DFP Service, then DoubleClick agrees to waive the
Minimum Monthly Impression Levels for the duration of such impairment.
The parties acknowledge and agree that the waiver set forth in the
preceding sentence shall not apply to any changes affecting the
industry generally in which DoubleClick operates.
For the purposes of this Section, "L90 Network" shall mean the network
of Web sites commonly referred to as the L90 Network and all successor
networks thereto and any alternative or additional networks created by
You or one or more of Your Affiliates, which includes but is not
limited to all Web sites owned, controlled or operated by You or one or
more of Your Affiliates (defined as any entity controlled by You; it
being understood that fifty percent (50%) or greater voting, equity, or
equivalent interest in the controlled entity shall be deemed
"control"), or for which You or one of Your Affiliates perform ad sales
and representation services, including Web sites or networks of sites
acquired by You or an Affiliate or otherwise merged with the L90
Network or alternative or additional networks after the Addendum Date.
For the purposes of this Section references to "representation" shall
mean representation in relation to sales of ad inventory for a Web
site. The parties agree that the L90 Network shall exclude (a) ad
inventory sold or represented by You or Your Affiliates for which
neither You nor Your Affiliates (nor any third party ad serving
solution contracted for by You or Your Affiliates) provide ad serving
services (including instances in which You merely broker a transaction
or You merely provide the creative to the owner of the ad inventory),
and (b) ad inventory sold or represented by You or Your Affiliates
(excluding ad inventory of Web sites owned or controlled by You or Your
Affiliates) for which the owner of such ad inventory elects to serve
advertisements through its own or an alternative ad serving solution
contracted for by such owner other than the DFP Services.
2. The parties hereby agree that the initial "Pricing Review", as
described in the Custom Arrangements section of the Agreement, shall
occur within thirty (30) days of the second anniversary of the DFP
Effective date, as opposed to after the first anniversary.
3. The parties hereby agree that the initial sentence of the section
entitled "Termination Right" in the Custom Arrangements section of the
Agreement is hereby replaced in its entirety with the following: "In
addition to the terminations provisions set forth in the Master
Agreement and the Terms and Conditions, You have the right to terminate
this DFP Attachment on ninety (90) days prior written notice to
DoubleClick in the event that You discontinue Your media business."
4. The parties hereby agree that the fourth sentence of Section 5 of the
Master Agreement is hereby replaced in its entirety with the following:
"Company has the right to terminate the Agreement on ninety (90) days
prior written notice to DoubleClick in the event that Company
discontinues its media business."
5. The parties hereby agree that the following provisions shall be added
to the end of the Custom Arrangements section of the Agreement and
shall apply from the date of this Addendum No.1 through the end of the
DFP Term:
Transition of Contracts: For Clients (defined as those entities that
are members of or included within the X00 Xxxxxxx) who have a
non-exclusive media representation agreement with DoubleClick as of the
Addendum Date and have an executed DART Service Agreement/Attachment
for Publishers (a "DFP Agreement") with DoubleClick for their U.S.
inventory as of the Addendum Date or after the Addendum Date (such
Clients to be defined as "Remnant Clients"), You agree to renegotiate
Your representation agreement with such Remnant Clients within eighteen
(18) months from the Addendum Date, so as to remove any waivers in such
agreements for ad serving fees under such Remnant Clients' DFP
Agreement for ads sold/represented by You pursuant to Your agreements
with such Remnant Clients. When You are so able to renegotiate such
Remnant Client's media agreement to remove any DFP fee waivers, You
agree to notify DoubleClick in writing of such fact on a monthly basis.
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Privacy PSAs: As part of this DFP Attachment, You agree, over a two (2)
year period commencing on the Addendum Date, to serve on the Web Site
at least 300,000,000 public service announcements ("PSAs") provided to
You by DoubleClick, it being understood that DoubleClick shall waive
Your standard ad serving CPM rates set forth at the beginning of this
Custom Arrangements section for such PSAs.
Reselling Restrictions: You acknowledge and agree that from and after
the Addendum Date, You shall not enter into any new agreement with any
of Your Clients to offer ad serving through the DFP Service to Your
Clients for inventory on the Web Site that You do not reasonably plan
to sell (i.e., You cannot, in substance or principle, act as a reseller
of the DFP Service). Inventory that You do not reasonably plan to sell
(which includes, without limitation, unsold ads over and above what You
reasonably expect to sell, and Client sold ads, but excludes the
privacy PSAs described in these Custom Arrangements and excludes a
reasonable amount of inventory that You plan to sell that ultimately
remains unsold) must either be excluded from Your media arrangement
with such Client or redirected back to Your Client at the fees set
forth herein. If DoubleClick has reason to believe, in good faith, that
You are in breach of the reselling restrictions set forth in this
paragraph, DoubleClick may notify You in writing of such fact, setting
forth the basis for such belief, and within ten (10) business days of
such written notice, You agree to provide DoubleClick with enough
proof, to DoubleClick's reasonable satisfaction, necessary to counter
DoubleClick's assertion. As an additional restriction on Your license
to the DFP Service, in all agreements You enter into after the Addendum
Date, You agree not to offer Your Clients ad serving of such Clients'
unsold/unrepresented inventory at a less favorable rate (i.e., higher
rate) than Your ad serving rate set forth herein (note, while serving
of some unsold/unrepresented inventory is acceptable to DoubleClick, so
long as You reasonably expected to sell it, as stated earlier in this
paragraph, You are restricted from entering into arrangements for
serving unsold/unrepresented inventory beyond this reasonable level).
With respect to any agreements entered into by You with Your Clients
prior to the execution of this Addendum No. 1 in which You perform ad
serving services for such Clients' unsold/unrepresented inventory at a
less favorable ad serving rate (a higher rate) than the ad serving
rates charged to You by DoubleClick hereunder, You agree, as soon as
possible (but in no event later than at the time of renewal of such
Clients' agreements), to renegotiate the CPM rate in such agreements
and replace it with a rate which is no less favorable than the rate
charged to You hereunder.
System Security and Access Restrictions: You agree (i) to restrict
access to only Your DART network through the System to those employees
of Yours who have a need to access Your DART network in connection with
Your use of the Services in accordance with the terms and conditions of
the Agreement, and (ii) not to use the System for any purpose other
than to provide DFP Service to Your Web Site. In particular, You agree
that You will not use the System to access or attempt to access the
data or information of any other entity using a DoubleClick service.
Should You breach the preceding sentence, DoubleClick shall have the
right to immediately suspend Services to You until such time as You can
reasonably demonstrate that adequate procedures and protections have
been put in place to help ensure no future breaches shall occur.
Custom Reports, Modifications and Additional Features:
Fees: Grandfathered Reports Fees: See Exhibit A
Initial Scoping Fee: $5,000 per scope
Additional Scoping Fee Rate: $225 per hour per person
Any customization work provided by DoubleClick, including, without
limitation, customization work relating to (i) log files, (ii) site
redesign, (iii) report requests (e.g., reports that entail development,
coding or automation work) ("Custom Reports"), and (iv) modifications
to the System or DFP Service ("Custom Modifications"), may be provided
by DoubleClick upon Your request, pursuant to mutually agreed upon
written statements of work entered into prior to the commencement of
any work by DoubleClick, such statements of work to be attached to and
made a part hereof (each, a "Statement of Work" or "SOW"). Statements
of Work shall include, without limitation, the applicable fees, payment
schedule, and delivery schedule for such services. All services
provided under a Statement of Work shall constitute a DFP Service under
this DFP Attachment. Set forth above is the flat fee for all initial
scoping work performed by DoubleClick for each potential Statement of
Work, which fee shall be waived by DoubleClick should the parties
execute such Statement of Work. All Custom Reports provided by
DoubleClick hereunder (excluding the non-company-specific elements of
such Custom Reports such as the report template) shall be Your sole and
exclusive property (save and except any of DoubleClick's trademarks or
service marks which may be contained therein and which shall remain
DoubleClick's property). Unless otherwise provided in the Statement of
Work, all Custom Modifications to the System provided by DoubleClick
shall be the sole and exclusive property of DoubleClick (save and
except any of Your trademarks or service marks which may be contained
therein and which shall remain Your property), and DoubleClick grants
to You a non-exclusive, non-transferable, worldwide license to use such
Custom Modifications developed hereunder solely in connection with the
terms and conditions of this DFP Attachment.
(A) The parties agree that Custom Modifications shall include, without
limitation, development of any System feature which is not, at the time
of the request, a feature of the DFP Service or slated to become a
feature of the DFP
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Service within the same timeframe as requested by You. You agree to pay
DoubleClick at the rate set forth in the Custom Arrangements section
for any additional scoping work to be performed by DoubleClick based on
changes or adjustments by You to the initial specifications for the
requested Custom Modification. In the event You elect to terminate a
Statement of Work for a Custom Modification and/or Custom Report after
DoubleClick has commenced performance of services pursuant to such
Statement of Work, You agree to promptly pay DoubleClick for all
reasonable costs and expenses incurred by DoubleClick for services
rendered as of the date of termination.
(B) The fee for each Custom Report to be set forth in the applicable
Statement of Work shall be comprised of two (2) parts: an initial
development fee and a monthly maintenance fee. The initial development
fee shall account for DoubleClick's time and costs spent in (i)
determining feasibility of a request, (ii) developing the actual script
to retrieve and format the data for the Custom Report, (iii) testing
such developed script, (iv) generating the sample data file that
DoubleClick will send to You for sign-off, and (v) setting up the
parameters for the automated generation, delivery and event logging
(i.e., logs that inform DoubleClick developers when a particular report
ran, whether it retrieved data successfully and whether it was sent out
successfully to the intended recipients) of such Custom Report. The
monthly maintenance fee shall account for DoubleClick's time and costs
spent in (i) ongoing monitoring of the event logs, (ii) addressing any
issues that arise with respect to such Custom Report, (iii)
incorporating possible modifications requested by You into the existing
script for the Custom Report, (iv) re-generating, at Your request,
Custom Reports that have already been sent out, and (v) delivering the
reports to You via the applicable delivery method agreed upon by the
parties. DoubleClick shall charge You a monthly maintenance fee of
$2,225 for each block of five (5) Custom Reports generated during the
DFP Term; provided, however, if there is a particular Custom Report
that requires a significantly greater amount of DoubleClick resources
to maintain (e.g., the Site Wizard Application Data report), the
parties will negotiate in good faith a reasonable uplift in fee for the
block of reports containing such report; and provided further, however,
for each block of five (5) Custom Reports (including, without
limitation, the Grandfathered Reports described below) that You choose
to discontinue during the DFP Term, DoubleClick shall reduce Your
monthly maintenance fee by $2,225, it being understood that if such
block of discontinued reports includes a report for which greater fees
were owed, such greater fee would be reduced accordingly. In addition,
You agree to pay DoubleClick at the rate set forth in the Custom
Arrangements section for any additional scoping work to be performed by
DoubleClick based on changes or adjustments by You to the initial
specifications for the requested Custom Report. For Custom Reports that
are already being generated for You as of the Addendum Date that You
elect to have generated pursuant to this DFP Attachment, a list of
which is attached as Exhibit A (the "Grandfathered Reports"), the
parties agree that You shall be obligated to pay DoubleClick the
monthly maintenance fee for all such Grandfathered Reports at the rate
set forth in Exhibit A hereto. In the event You request a modification
to any Grandfathered Report, however, such modified report shall be
subject to the Statement of Work process and fees described herein.
(C) Conversion Builder and Auto-Optimization: Commencing on the
Addendum Date, DoubleClick agrees to license to You use of the
Conversion Builder and Auto-Optimization functionality in accordance
with the terms and conditions set forth in Exhibit B.
Boomerang: In accordance with the Boomerang Service Attachment by and
between the parties, dated as of even date herewith, DoubleClick agrees
to provide You and Your Clients with the Boomerang technology services.
Fees for Boomerang-targeted Advertising: $10,000/month System
Maintenance Fee DoubleClick has the right to charge You, and You agree
to pay, the monthly System Maintenance Fee in connection with Your the
use of the Boomerang technology by You and Your Clients.
6. DoubleClick and Company hereby ratify all other terms and conditions of
the Agreement which have not been modified by this Addendum No. 1, and
such other terms and conditions shall remain in full force and effect.
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Company and DoubleClick confirm their mutual agreement to this
Addendum No. 1 as of the date first written above by signing below.
DOUBLECLICK INC. L90, INC.
By:/s/ Xxxxx Xxxxxxxxxx By:/s/ Xxxxxxxx Xxxxxxx
-------------------- --------------------
Name: Xxxxx Xxxxxxxxxx Name: Xxxxxxxx Xxxxxxx
Title: President Title: Chief Executive Officer
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