INGENIO PAY PER CALL® ADVERTISING DISTRIBUTION AGREEMENT
Exhibit
10.7
INGENIO
PAY PER CALL® ADVERTISING
DISTRIBUTION AGREEMENT
Ingenio,
Inc., a Delaware corporation, with its principal place of business at ▇▇▇
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Ingenio") and Upsnap, Inc. with its principal place
of
business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
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("COMPANY" together with Ingenio, the "Parties") hereby enter into the agreement
set forth herein ("Pay Per Call Advertising Distribution Agreement" or
"Agreement"), effective as of March 9,
2006
(the "Effective Date"). All capitalized terms not otherwise defined herein,
shall have the meaning attributed to them
on
Exhibit
A attached
hereto and incorporated by this reference.
1. Services.
1.1 Pay
Per Call Advertising Service.
The pay per call advertising service is an information service provided by
Ingenio to COMPANY under which Subscribing Advertisers pay a Successful Call
Fee
for each call that they receive on an Ingenio Toll-Free Number ("Pay Per
Call
Advertising Service").
1.2 Distribution
and Display of Pay Per Call Listings.
Under this Agreement, COMPANY will have the right
to
request Ingenio to supply Pay Per Call Listings for display on the following
COMPANY mobile service 27627 (the
"COMPANY website(s)"). COMPANY may make such requests and Ingenio will supply
such listings in accordance
with the then current terms of Ingenio's Pay Per Call Advertising Network
Program (the "Network Program") provided to you by Ingenio. Updates to the
Network Program may be sent to Company from time to time and
the
Company will have a reasonable time to comply with any new requirements.
Pay Per
Call Listings will be displayed
on the COMPANY website(s) such that visitors to the COMPANY website(s) may
call
Subscribing Advertisers.
Ingenio has the right to reject any affiliates at any time that Ingenio deems
inappropriate for Pay Per Call.
1.3 Launch
Date.
The Parties will use commercially reasonable efforts to display Pay Per Call
Listings on the COMPANY website(s) within sixty (60) days following the
Effective Date of this Agreement (the "Pay Per Call Listings Launch
Date").
2. COMPANY's Obligations.
COMPANY
shall be solely responsible to: (i) prominently promote Pay Per Call Listings
and utilize best practices
(e.g., show
your
ads above the fold, place ads on highly trafficked pages, place ads within
search results if available)
on the COMPANY website(s), and (ii) display listings in accordance with the
Network Program. COMPANY agrees
to
comply with the specifications provided by Ingenio to enable proper delivery,
display, tracking, and reporting of
Pay
Per Call Listings in connection with COMPANY website(s), including without
limitation by not modifying the API or other programming provided to COMPANY
by
Ingenio in any way, unless expressly authorized in writing by Ingenio.
3. Ingenio's
Obligations.
Ingenio
shall be solely responsible to: (i) operate, maintain and make available
to
COMPANY Pay Per Call Advertising Service, including the provision and hosting
of
the telephony infrastructure and transactions; (ii) supply to Company Pay
Per
Call Listings for display on the COMPANY website(s); and (iii) ▇▇▇▇ each
Subscribing Advertiser an agreed upon amount for each call that such Subscribing
Advertiser receives on their Ingenio Toll-Free Number.
4. Revenue
Share and Payment Terms.
4.1 Pricing.
Net
Revenue
share to
COMPANY shall
receive 70% of the Net Revenue received for Successful Calls generated by
Ingenio Advertising Network Subscribing Advertisers on
COMPANY.
4.2 General
Pavment Terms.
Ingenio will calculate all fees due to COMPANY on a monthly basis and provide
a
report to COMPANY detailing fees owed within 30 days following the end of
each
calendar month. If COMPANY's unpaid cumulative quarterly fees exceed $250
in any
given month then Ingenio will pay COMPANY the cumulative amount within 30
days
following the end the month. If COMPANY's unpaid, cumulative monthly fees
are
less than $250 such unpaid fees will be rolled to the following month. If
this
Agreement is terminated, all fees due at the time of termination will be
paid
within thirty (30) days following termination.
4.3 Reporting.
Ingenio
will provide COMPANY
with Pay Per
Call
Advertising Service standard reports that
will
include information about Successful Calls made by Calling Customers to
Subscribing Advertisers through Ingenio's Toll-Free
Number(s).
This
information may include call counts, duration of calls, date of calls, revenue
earned,
and other relevant data.
4.4 Audit.
Ingenio
shall keep records for one year from the date of recording the item or activity.
Upon thirty
(30)
days'
written notice, not more than once during any twelve (12)
month
period,
COMPANY
may, on reasonable
notice by appointment during normal business hours, cause an independent
auditor
to inspect the records reasonably
related to the calculation of revenues,
costs
and
payments due
to
COMPANY, for
the
purpose of verifying payments
under this Agreement.
The
independent accredited auditor shall have a non-disclosure
agreement with Ingenio.
The
Auditor shall share with
COMPANY only
the
results of the Audit conducted and will not share any of the data reviewed
in
the conduct of the Audit.
If
the
amounts actually paid by
Ingenio to COMPANY are
determined to be less than the appropriate amount payable under the terms
of
this Agreement,
Ingenio
shall pay
to
COMPANY the amount
of
any such underpayment.
Any
audit
shall be conducted at
COMPANY's sole
cost
and expense, except that, if an
examination of Ingenio' books and/or records reveals a deficiency in
amounts paid
to
COMPANY of
ten
(10%) percent
or more of the total amounts accounted to
COMPANY during
any monthly period examined,
Ingenio
shall pay all
reasonable expenses related to the performance of the audit.
All
statements rendered by Ingenio to COMPANY
shall be
deemed
conclusive unless objection is made within twelve (12)
months from the date of such statement.
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4.5 No
Guarantee.
Ingenio
makes no guarantee regarding the level of mpressions of or calls on any Pay
Per
Call Listing, the timing of delivery of such impressions and/or calls, or
the
amount of any revenue to be earned by COMPANY
under this Agreement. Any forecast related discussions are for illustrative
purposes only and not indicative of
a
guarantee of performance.
5. Proprietary
Rights and Restrictions.
5.1 General. Ingenio
is the non-exclusive supplier of Pay Per Call Advertising Services and like
services provided
by third parties to COMPANY, and is the exclusive owner of all right, title
and
interest in and to the Ingenio Toll-Free
Number, all software, databases and other aspects and technologies related
to
the Pay Per Call Advertising Service,
any modifications, improvements and enhancements thereto and any materials
provided to COMPANY by Ingenio
for purposes of utilizing the Pay Per Call Advertising Service, or otherwise.
COMPANY may not use the Pay Per
Call
Advertising Service except pursuant to the limited rights expressly granted
in
this Agreement.
5.2 Rights
Regarding Trademarks.
Subject
to the terms of this Agreement and as necessary to perform the
obligations under this Agreement, each Party has the nonexclusive,
nontransferable and nonsublicensable right to use
and
display the other Party's trademarks and service marks relating to Pay Per
Call
Advertising Services. Such usage
must be truthful, fair and not misleading or disparaging. Each
Party retains all right, title and interest to its respective
marks and no right, title or interest is transferred to the other.
6. User
Data.
Ingenio
owns all information collected from Calling Customers and Subscribing
Advertisers using the Pay Per Call
Advertising Service ("Pay Per Call User Data"). Ingenio will not sell, disclose,
transfer or rent any such Pay Per Call User Data, that could reasonably be
used
in any manner, alone or in conjunction with other information provided
by
Subscribing Advertisers and Calling Customers or third parties, to identify
a
specific named individual ("Individual Data")
to
any third party nor use such Individual Data on behalf of any third party
without the express consent of the Subscribing
Advertiser or Calling Customer. Notwithstanding
the foregoing or anything to the contrary in this Agreement, Ingenio has
the
right to aggregate data and provide general statistical information about
the
Pay Per Call Advertising Service and the usage of such service to third parties.
Ingenio
agrees to abide by the then-current laws regarding
publicity and right of privacy.
7. Term
and Termination.
7.1 Initial
Term and Renewals.
This
Agreement will become effective as of the Effective Date and shall, unless
sooner terminated as provided below or as otherwise agreed, remain effective
for
an initial term of one (1) year from
the
Pay Per Call Listings Launch Date (the "Initial Term"). After the Initial
Term,
this Agreement will be renewed
for additional one (1) year period (a "Renewal Term"), unless either Party
notifies the other Party of its intention
not to renew not less than thirty (30) days prior to the end of the Initial
Term
or any Renewal Term, as the case may
be.
As used herein, the "Term" means the initial Term and any Renewal Term,
collectively.
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7.2 Termination
for Cause.
At
any
time during the Term, this Agreement shall terminate (i) thirty (30)
days
after a Party's notice to the other Party that such other Party is in breach
hereunder, unless the other Party cures such
breach within said thirty (30) day period or (ii) upon five (5) days prior
written notice from Ingenio to COMPANY of
Ingenio's reasonable determination that COMPANY is using the Pay Per Call
Advertising Service in a manner that will
damage or cause injury to the Pay Per Call Advertising Service or reflect
unfavorably on the reputation of Ingenio, unless
COMPANY cures such breach within said five (5) day period.
7.3 Effect
of Termination.
Any
termination pursuant to this Section 7 shall be without any liability or
obligation
of the terminating Party, other than with respect to any breach of this
Agreement by the terminating Party prior to such termination. Upon the
expiration or termination of this Agreement each Party shall: (i) immediately
cease its
use
of the other Party's Intellectual Property Rights in connection with this
Agreement; (ii) immediately pay to the other
any
sums outstanding that are then due and payable under this Agreement; and
(iii)
return to the other Party marketing
literature and materials of the other Party in its possession or shall destroy
such items and certify their destruction
to the other Party. Notwithstanding
the foregoing or anything to the contrary in this Agreement, upon termination
of this Agreement, Ingenio shall retain all rights to the Pay Per Call User
Data
and the Pay Per Call Listings, including
but not limited to, the right to use on the Ingenio website and the right
to
include in the Ingenio Advertising Network.
The provisions of Sections 6 (User Data), 7 (Termination), 8 (Indemnification),
9 (Warranties Excuded), 10 (Limitation
and Exclusion of Liability), 11 (Confidentiality) and 13 (Miscellaneous)
shall
survive any termination or expiration
of this Agreement.
8. Indemnification.
Each of
COMPANY and
Ingenio agree to indemnify and hold harmless the other Party and their
respective employees,
directors,
representatives,
agents,
and affiliates,
against
any and all costs,
damages, and expenses, including,
but
not
limited to, reasonable attorneys'
fees
and
costs awarded against or otherwise incurred by the indemnified Party in
connection with or arising from any third party claims, suits,
actions,
or other proceedings brought against the other Party
based on or arising from any claim that the website, content,
ads
or
displays of the indemnifying Party misappropriate
or infringe upon the intellectual Property Rights of a third party, provided
that the indemnifying Party receives prompt notice and an opportunity to
assume
sole control of the defense and settlement of such claim (provided that the
indemnifying Party shall not obligate the indemnified Party in any way without
the indemnified Party's written
consent).
9. Warranties
Excluded
EXCEPT
AS OTHERWISE SET FORTH IN THIS
AGREEMENT,
NEITHER PARTY MAKES ANY REPRESENTATIONS
OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY ITEMS
OR
SERVICES PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY
ARISING
BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE AND ANY IMPLIED
WARRANTY
OF NON-INFRINGEMENT. WITHOUT LIMITING
THE
GENERALITY OF THE FOREGOING, EACH PARTY
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ACKNOWLEDGES
THAT THE WEB SITES, SERVERS AND OTHER HARDWARE, SOFTWARE AND ANY
OTHER
ITEMS USED OR PROVIDED IN CONNECTION WITH HOSTING SUCH WEB SITES OR PERFORMANCE
OF
ANY
SERVICES
HEREUNDER ARE PROVIDED "AS 1S" AND THAT, EXCEPT AS OTHERWISE PROVIDED
HEREIN,
NEITHER PARTY MAKES ANY WARRANTY THA'I' THE SERVICES IT PROVIDES HEREUNDER
WILL
BE
FREE FROM BUGS, FAULTS, DEFECTS OR ERRORS OR THAT ACCESS TO ANY OF THE SERVICES
WILL BE UNINTERRUPTED.
10. Limitation
and Exclusion of
Liability.
EXCEPT
FOR LIABILITIES ARISING FROM BREACH OF CONFIDENTIALITY OR INFRINGEMENT
OF
THE
INTELLECTUAL PROPERTY RIGHTS OF THE OTHER PARTY UNDER
NO
CIRCUMSTANCES SHALL
EITHER PARTY BE
LIABLE
TO
THE
OTHER
PARTY FOR
INDIRECT, INCIDENTAL,
CONSEQUENTIAL,
SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING FROM THIS AGREEMENT, WHETHER
BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE,
EVEN
IF
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING,
BUT
NOT
LIMITED TO, LOSS OF DATA, REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.
OTHER
THAN
THE
FEES DESCRIBED IN SECTION 5 HEREIN, IN NO EVENT SHALL EITHER PARTY'S
AGGREGATE LIABILITY
UNDER THIS AGREEMENT EXCEED ONE HUNDRED THOUSAND DOLLARS ($100,000).
11. Confidentiality.
The
terms
of this Agreement and information and data that one Party (the
"Receiving Party")
has
received or will
receive from the
other
Party
(the
"Disclosing Party")
about
the Pay Per Call Advertising Service and each party's trade
secrets and other matters are proprietary and confidential information
("Confidential
Information"), including without
limitation any information that is marked as "confidential"
or
should
be reasonably understood to be confidential
or proprietary to the Disclosing Party and any reference manuals compiled
or
provided hereunder.
The Receiving
Party agrees that for the Term and for two (2)
years
thereafter, the Receiving Party will not disclose the Confidential
Information to any third party, nor use the Confidential Information for
any
purpose not permitted under this
Agreement.
The
nondisclosure obligations set forth in this Section shall not apply to
information that the Receiving Party
can
document is generally available to the public (other
than through breach of this Agreement),
was
already lawfully
in the Receiving Party's possession at the time of receipt of the information
from the Disclosing Party, is independently
developed by the Receiving Party without use of or reference to the Disclosing
Party's Confidential Information,
or
becomes known by the Receiving Party
from
a
third party and, to the Receiving
Party's knowledge,
is not
subject to an obligation of
confidentiality to
the
Disclosing Party.
12. Public
Announcement.
lngenio
has the right to include
COMPANY in marketing materials
as a member of the
5
Network
Program. Neither
Party shall issue
a
press release regarding the existence of
this
Agreement
without the other party's
prior
written approval
and consent.
13. Miscellaneous.
13.1 Notice.
All
notices, requests, demands, claims and other communications provided for
or
permitted under
this Agreement shall be in writing and shall be deemed duly given (i) if
personally delivered, when so delivered, (ii) if mailed, two business days
after
having been sent by registered or certified mail, return receipt requested,
postage prepaid and addressed to the intended recipient as set forth below,
(iii) if given by facsimile, once such notice or other communication is
transmitted to the facsimile number specified below and the appropriate answer
back or telephonic confirmation is received, provided that such notice or
other
communication is promptly thereafter mailed in accordance with
the
provisions of clause (ii) above, or (iv) if sent through an overnight delivery
service in circumstances to which such service guarantees next day delivery,
the
day following being so sent. Notices may be given by means other than those
described herein, but in such case they shall be deemed given when
received.
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For
Ingenio:
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Vice
President, Business Development
Ingenio,
Inc.
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Fax:
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For
COMPANY:
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CEO,
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13.2 Force
Majeure.
Neither Party shall be deemed to be in default of or to have breached any
provision of this
Agreement as a result of any delay, failure in performance or interruption
of
service, resulting directly or indirectly from
acts
of God, acts of civil or military authorities, civil disturbances, wars,
strikes
or other labor disputes, fires, transportation
contingencies, interruptions in telecommunications, carrier access,
distribution, billing, manufacturing or Internet
services, other catastrophes or any other occurrences that are beyond such
Party's reasonable control; provided, however,
that either Party may terminate this Agreement upon written notice to the
other
Party in the event of non-performance by the other Party for more than sixty
(60) days following the initial delay, failure or interruption caused
by
any
such "force majeure" occurrence.
13.3 Governing
Law
and Dispute Resolution.
This
Agreement will be
governed by and construed
in accordance
with the laws of
the
State of California, without
reference to its conflicts
of laws rules. If
any
provision of this
Agreement is found invalid
or unenforceable, that provision will be enforced to the maximum extent
permissible, and
the
other provisions of this Agreement will remain in
force.
Any claims or disputes will
be
submitted to executives of
each
Party prior to initiation of any formal legal process; provided,
however, this provision shall not preclude either
Party
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from
resorting to
judicial proceedings if:
(i)
good faith efforts to
resolve the dispute by
such
executives are unsuccessful;
or (ii) the
claim
or dispute relates
to Intellectual Property
Rights; or (iii) interim
relief from a
court
is necessary
to prevent serious and
irreparable injury to the
Party
or
to third parties.
13.4 Relationship.
Neither
this Agreement, nor
any
terms and conditions
contained herein
may be construed
as creating or
constituting a
partnership, joint venture,
employment or
agency
relationship between
the Parties.
Each Party shall be
and
act as
an
independent contractor.
13.5 Modifications
and Waivers.
This
Agreement represents the
entire and exclusive agreement
between Ingenio
and COMPANY relating
to the subject matter
of
this Agreement and supersedes all prior
agreements or
understandings,
written or
oral,
relating to the subject matter
of
this Agreement. No failure or delay on the part of either Party
in
exercising any right, power or remedy under this Agreement shall operate
as
a
waiver, nor shall any single
or
partial
exercise of any such
right, power or remedy preclude
any other or further exercise
or the exercise of
any
other right,
power or remedy. Unless
otherwise specified, any
amendment, supplement or modification of or to any provision
of
this
Agreement, any waiver of
any
provision of this Agreement and
any
consent to any departure by the Parties from the
terms
of this Agreement, shall be effective only if it is
made
or given in writing and
signed by both Parties.
13.6 Assignment.
This Agreement and the rights
hereunder are not transferable
or assignable without
the prior
written consent of
the
non-assigning Party;
provided, however, that
this
Agreement may be
assigned without the other
Party's consent (a)
to a
person or entity
who acquires all, or substantially
all, of
the
Party's assets, stock
or
business by sale, merger or otherwise and
(b)
by
Ingenio
to
an affiliate
of
Ingenio in the event of any corporate reorganization.
IN
WITNESS WHEREOF, the
Parties have caused this
Agreement to
be
executed by
their
duly authorized representatives as of the date first written above.
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"COMPANY"
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"INGENIO"
Ingenio,
Inc.
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By:
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By:
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Name:
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Name:
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Title:
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Title:
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7
EXHIBIT
A
DEFINITIONS
"Calling
Customer" shall
mean an individual who initiates a call from a Subscribing Advertiser's
Pay Per Call Listing.
"Intellectual
Property Rights" shall mean all rights in and to trade secrets, patents,
copyrights, trademarks, service marks,
logos, trade dress, know-how, and similar rights of any type under the laws
of
airy governmental authority, domestic or foreign, now known or hereafter
developed.
"Ingenio
Toll-Free Number" shall mean a unique toll-free phone number assigned by
Ingenio
to a Subscribing Advertiser.
“Ingenio
Advertising Network" shall mean the web-based reference service that lists
the
names, descriptive information and contact information of Subscribing
Advertisers, which may be promoted by Ingenio and/or third parties.
"Net
Revenue" is equal to total revenues collected and received by Ingenio from
Subscribing Advertisers for Successful
Call Fees less (a) a telecommunications fee of $0.10 per minute or any fraction
thereof, and (b) an administration
fee of 10% of the cost of Successful Call.
"Pay
Per
Call Listing" shall mean the name, Ingenio Toll-Free Number and other
descriptive information of the Subscribing
Advertiser listed in the Ingenio Advertising Network.
"Subscribing
Advertiser" shall mean an advertiser who elects to subscribe to the Pay Per
Call
Advertising Service.
"Successful
Call" means a charged call from a Calling Customer through the Ingenio Toll-Free
Number that is transmitted
by Ingenio, regardless of whether the call is transmitted to a busy signal,
is
unanswered, or a connection is
made
to a live person or to voicemail.
"Successful
Call Fee" shall mean the
fee
paid to Ingenio by a Subscribing Advertiser for each Successful Call made
by a
Calling Customer to a Subscribing Advertiser's Ingenio Toll-Free
Number.
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