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EXHIBIT 10.17
24/7 MEDIA INC.
NETWORK AFFILIATION
AGREEMENT
WHEREAS, the undersigned (hereinafter the "Network Affiliate") is the
operator and owner of the Internet website(s) (the "Web Site") specified on the
signature pages hereto;
WHEREAS, 24/7 Media, Inc. ("24/7"), a Delaware corporation with an address
at 0000 Xxxxxxxx, 00xx xxxxx, Xxx Xxxx, XX 00000, operates a network of internet
web sites (the "24/7 Network") for which it solicits advertisers, advertising
agencies, buying services or others ("Advertisers") regarding the placement of
advertising banners and similar devices and sponsorships ("Advertising") for
display on pages, screens, and other segments or spaces on web sites reasonably
suitable for the display of advertising and to which the Tags (as defined in
Section 2(A) below) can be affixed as provided herein (the "Pages");
WHEREAS, Network Affiliate wishes to subscribe to include the Web Site in
the 24/7 Network, and 24/7 wishes to accept such subscription;
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, it is agreed as
follows:
1. AFFILIATION.
The Network Affiliate hereby subscribes as a member of 24/7 Network and
hereby grants to 24/7 the exclusive right to sell all Advertising on the Web
Site.
2. OBLIGATIONS OF 24/7.
In furtherance of the foregoing, 24/7 covenants and agrees to:
A. provide the Network Affiliate, during the term of this
Agreement (the "Term") and only for use in the performance of this Agreement,
with unique tags in HTML/Java or other appropriate languages (the "Tags") (in
which the Network Affiliate will not have or acquire any proprietary or property
rights or interests, including any intellectual property rights), which shall be
affixed appropriately by Network Affiliate to the Web Site's Pages to enable
24/7 to serve Advertising to those Pages;
B. utilize its best efforts to sell to Advertisers Advertising on
the Web Site's Pages, including sales of the Web Site as a single site, through
multi-site packages and through the 24/7 Network package, at such prices as 24/7
shall deem appropriate;
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C. serve or cause to be served Advertising to the Web Site's
Pages;
D. provide the Network Affiliate with notice, via on-line
posting, of new Advertising that has been solicited by 24/7 to be displayed on
the Web Site's Pages, and to use its best efforts to honor any decision by
Network Affiliate to decline any Advertising, in accordance with the provisions
in 3(D) below;
E. provide the Network Affiliate with real-time access to records
that will allow it to monitor the volume of paid Advertising delivered to the
Web Site's Pages and the revenue produced (subject to billing corrections and
adjustments) thereby; all such records, including data, statistical information
or other traffic analysis, produced or provided by 24/7 shall be the joint
property of 24/7 and Network Affiliate; and
F. 24/7 agrees to deliver to the Network Affiliate, (i) a monthly
statement showing revenues earned by Network Affiliate during the calendar month
and any sum(s) due the Network Affiliate on account thereof, and (ii) within 30
days of collection, payment representing the Network Affiliate's portion of such
revenues;
G. maintain suitable and qualified personnel in administrative,
sales and technical positions necessary for 24/7 to perform effectively the
terms of this Agreement.
3. OBLIGATIONS OF NETWORK AFFILIATE.
The Network Affiliate covenants and agrees:
A. that during the Term, it shall use its best efforts to
continue and maintain the Web Site and the Web Site's Pages in a manner
consistent with the intent and purpose of the Web Site;
B. to insert the Tags on each of the Web Site's Pages and only on
such Pages in such a manner as to assure that the Advertising to be affixed to
said Tag is fully and clearly visible on the first Web Site Page viewed when
that Page is viewed at a 640 x 480 pixel resolution;
C. to insert a button with the 24/7 logo on the Web Site's Home
Page directing potential advertisers to the 24/7 web site.
D. to notify 24/7 within one business day from the time of notice
of any new Advertising is given of the Network Affiliate's rejection of any new
Advertising. Failure to provide timely notice of rejection of the new
Advertising shall be deemed acceptance thereof, until such time as Network
Affiliate notifies 24/7 of Network Affiliate's rejection thereof at which time
24/7 will use its best efforts to remove the Advertising;
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E. to furnish 24/7 with all subscribership, viewership,
inventory, and usage reports, reviews and audience studies, deliveries, census
requirements, and any other information regarding the Web Site and the Web
Site's Pages as is reasonably available to the Network Affiliate and appropriate
for use by 24/7 for the sale of Advertising; and
F. not to engage, contract with, license or permit any person,
firm or entity (including the Network Affiliate and its employees) other than
24/7 and its employees to sell, or represent the Network Affiliate for the sale
of, Advertising on the Web Site;
4. PAYMENTS.
A. Advertisers shall be directed to pay all cash and other
consideration (the "Payment") generated from the sale of Advertising by 24/7
during the term of this Agreement. 24/7 shall retain a percentage of such
Payment (reduced by those advertising agency commissions actually retained by
agencies or paid by 24/7 to agencies with respect to the sale of Advertising on
the Web Site in accordance with the following chart, and shall pay to the
Network Affiliate the remainder of the Payment received by 24/7 for the sale of
Advertising on the Web:
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Number of Impressions Percentage Retained by 24/7
Delivered in Preceding Month for Current Month
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999,999 to 2,000,000 50%
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2,000,000 to 2,999,999 45%
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3,000,000 to 4,999,999 40%
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5,000,000 to 14,999,999 35%
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15,000,000+ 30%
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Subject to verification of monthly Ad Impressions, the initial commission rate
to 24/7 Media is 50%.
B. The Network Affiliate may elect to have 24/7 serve promotional
or barter advertisements not sold by 24/7, for which Network Affiliate will pay
24/7 a serving fee of $2.50 cost per thousand ("CPM"); such promotional and
barter advertisements shall not exceed thirty percent (30%) of the Pages.
C. In the event any Advertiser remits any payment for Advertising
sold by 24/7 Media directly to the Network Affiliate rather than to 24/7 Media,
the Network Affiliate agrees to make prompt payment to 24/7 of any and all such
payments.
D. Network Affiliate will be obligated to compensate 24/7 Media
on any business contracted by 24/7 Media prior to termination date.
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5. INTELLECTUAL PROPERTY. All hardware, software, programs, codes, trade
names, technology, intellectual property, licenses, patents, trademarks,
copyrights, trade secrets, know-how, and processes (collectively, the "24/7
Technology") used by 24/7 under this Agreement shall remain the sole property of
24/7. Network Affiliate shall have no rights, title or interest in the 24/7
Technology. Upon the expiration or termination of this Agreement, each party
shall promptly return all information, documents, manuals and other materials
belonging to the other party except as otherwise provided in this Agreement.
6. CONFIDENTIALITY. 24/7 and Network Affiliate covenant to each other that
neither party shall disclose to any third party (other than its employees and
directors, in their capacity as such, and the employees and directors of any
affiliate on a need to know basis so long as they are bound by the terms of this
Agreement) any information regarding the terms and provisions of this Agreement
or any non-public confidential information which has been identified as such by
the other Party hereto except (i) to the extent necessary to comply with any law
or valid order of a court of competent jurisdiction (or any regulatory or
administrative tribunal), in which event the party so complying shall so notify
the others as promptly as practicable (and, if possible, prior to making any
disclosure) and shall seek confidential treatment of such information, if
available; (ii) as part of its normal reporting or review procedure to its
auditors or its attorneys, as the case may be, so long as they are notified of
the provisions of this Agreement; (iii) in order to enforce its rights pursuant
to this Agreement; (iv) in connection with any filing with any governmental body
or as otherwise required by law, including the federal securities laws and any
applicable rules and regulations of any stock exchange or quotation system; and
(v) in a confidential disclosure made in connection with a contemplated
financing, merger, consolidation or sale of capital stock of 24/7 or the Network
Affiliate. Information which is or should be reasonably understood to be
confidential or proprietary includes, but is not limited to, information about
the 24/7 Network, sales, cost and other unpublished financial information,
product and business plans, projections, marketing data, and sponsors but shall
not include information (a) already lawfully known to or independently developed
by a 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.
7. TERM. The term of this Agreement (the "Term") shall commence on the
Effective Date and shall continue in effect until either party terminates it.
Termination will be effective four (4) months after the date on which written
notice is given, as determined under the provisions of Section 13 below, to the
other party.
8. CONTENT OF WEB SITE. Network Affiliate covenants and agrees not to include
or provide via the Web Site or the Web Site's Pages any material that is or may
be considered: (i) libelous, pornographic, obscene, or defamatory under any
federal or state law; (ii) an infringement of any third party's intellectual
property rights (including copyright, patent, trademark, trade secret or other
proprietary rights); or (iii) an infringement on any third party's rights of
publicity or privacy. Network Affiliate further covenants and agrees, with
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respect to the operation of its Web Site and its Pages, to comply with all laws,
statutes, ordinances, and regulations.
9. INDEMNIFICATION. Network Affiliate shall indemnify and hold harmless 24/7,
its advertisers and other suppliers and any related third parties, against and
in respect of any and all claims, suits, actions, proceedings (formal and
informal), investigations, judgments, deficiencies, damages, settlements,
liabilities, and legal and other expenses (including reasonable legal fees and
expenses of attorneys chosen by 24/7) as and when incurred, arising out of or
based upon any act or omission or alleged act or alleged omission by Network
Affiliate in connection with the acceptance of, or the performance or
non-performance by Network Affiliate of, any of its duties under this Agreement
or arising from the breach by Network Affiliate of its warranties,
representations or covenants contained in this Agreement. 24/7 shall indemnify
and hold harmless the Network Affiliate, against and in respect of any and all
claims, suits, actions, proceedings (formal and informal), investigations,
judgments, deficiencies, damages, settlements, liabilities, and legal and other
expenses (including reasonable legal fees and expenses of attorneys chosen by
Network Affiliate) as and when incurred, arising out of or based upon any act or
omission or alleged act or alleged omission by 24/7 in connection with the
acceptance of, or the performance or non-performance by 24/7 of, any of its
duties under this Agreement or arising from the breach by 24/7 of its
warranties, representations or covenants contained in this Agreement.
10. NO POACHING. Network Affiliate agrees that, for a period of one year from
the end of the Term, neither it nor its affiliates will solicit or recruit the
services of any 24/7 employees, or hire any such employees.
11. NO WAIVER. This Agreement shall not be waived, modified, assigned or
transferred except by a written consent to that effect signed by Network
Affiliate and 24/7. Network Affiliate agrees that if it assigns or transfers
this Agreement, it shall cause such successor, assignee, or transferee to assume
all of the Network Affiliate's obligations hereunder. Any assignment, transfer,
or assumption shall not relieve the Network Affiliate of liability hereunder.
12. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and performed therein, without regard to principles of conflicts of laws.
13. NOTICES. All notices required or permitted to be given hereunder shall be
in writing and either hand-delivered, telecopied, mailed by certified first
class mail, postage prepaid, or sent via electronic mail to the other party or
parties hereto at the address(es) set forth below. A notice shall be deemed
given when delivered personally, when the telecopied notice is transmitted by
the sender, three business days after mailing by certified first class mail, or
on the delivery date if delivered by electronic mail.
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14. ENTIRE AGREEMENT. This Agreement, including the Additional Terms attached
hereto, constitutes the entire agreement and supersedes all prior agreements of
the Parties with respect to the transactions set forth herein and, except as
otherwise expressly provided herein, is not intended to confer upon any other
person any rights or remedies hereunder.
15. COUNTERPARTS. This Agreement may be executed in counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same document.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
this_______________day of_____________________, 1998 (the "Effective Date").
24/7 MEDIA, INC.
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: SVP, Business Development
E-mail address: XXxxxxxxx@000Xxxxx.xxx
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NETWORK AFFILIATE:
Name of Web Site: xxxxxxx.xxx
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Web Site URL: xxx.xxxxxxx.xxx
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Corporate Name: xxxxxxx.xxx, Inc.
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Address: ONE ARIZONA CENTER
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Address: 000 X. XXX XXXXX, 0XX XXXXX
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By: /s/ XXXXXXX XXXXXX
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Name: Xxxxxxx Xxxxxx
Title: COO
E-mail address:
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