ADMINISTRATIVE FLYCAST
FlycastTM Communications
Corporation
Web Advertising Services Agreement
For Buyers
Company Name ("Buyer") Acceleration Software
Primary Site(s) URL(s) xxx.xxxxxxxxxxxxxx.xxx
Contact Person(s) Name Xxxxx Xxxxxxx
Phone (000) 000-0000
Email xxxxx@xxxxxxxxxxxxxx.xxx
Flycast Sales Representative X.X. Xxxxx
Flycast Customer Support
Representative
This agreement, dated April 24, 1998, describes the entire terms and conditions
for the purchase of web advertising impressions on the Flycast Open Network.
Section 1.0. Definitions
1.1. AdAgent
The client software provided by Flycast for the purpose of purchasing
impressions on the Flycast Open network.
1.2. Ad Creative.
The creative content of Buyer's advertising that appears when Buyer purchases an
Impression.
1.3. Ad Spaces.
The web page section (s) on Seller's web site registered with Flycast that
generate Impressions.
1.3. Buyers.
Customers who buy Impressions on the Flycast Open Network.
1.4. Default Advertisements.
Advertisements promoting Seller's web site (or Seller's goods or services) that
are displayed in the event there is no qualified Buyer for Impressions on
Seller's Ad Spaces.
1.5. Flycast.
Flycast Communications Corporation, a California corporation.
1.6. Flycast Ad Management System.
The tools and services provided by Flycast to manage web advertising campaigns,
including AdAgent, Ad Reporter, Site Registry and Site Reporter.
1.7. Flycast Blind Buy Sale.
A transaction on the Flycast Open Network in which the Impression is sold as
part of a pool of Impressions from multiple sites, and the Buyer is unable to
specify web sites or Ad Spaces.
1.8. Flycast Open Network.
The network of web sites on which Buyers can purchase Impressions.
1.9. Flycast Spot Sale.
A transaction on the Flycast Open Network where the Impression is sold pursuant
to a real-time bidding process to the highest bidder that bids above the
Seller's minimum bid price.
1.10. Flycast Upfront Sale.
A transaction on the Flycast Open Network where a fixed number of Impressions
are sold to a specific Buyer (including Flycast) for a fixed, predetermined
price. A Flycast Upfront Sale cannot be canceled by the Seller or by the Buyer.
1.11. Impressions.
Web advertising impressions sold or made available for sale over the Flycast
Open Network.
1.12. Sellers.
Web sites that register Ad Spaces for sale on the Flycast Open Network.
1.13. Seller Status Information.
The Seller's Impression sale parameters with respect to each Ad Space, including
the number of Impressions available to be sold on the Flycast Open Network, the
minimum price for the sale of the Impressions, etc.
1.14. Site Registry.
The HTML form(s) on Flycast's web site used by Sellers to register their Ad
Spaces with the Flycast Open Network, and to set and adjust Seller Status
Information.
Section 2.0. Buying Impressions
2.1. Flycast Spot Sale.
Buyer represents and warrants that by using AdAgent to initiate a Flycast Spot
Sale, it has made an offer to buy Impressions at its designated price. Neither
Flycast nor the Sellers represent or warrant that Buyer will enter into a
Flycast Spot Sale at its designated price, or otherwise secure impressions on
the Sellers' Ad Spaces.
2.2. Flycast Upfront Sale.
Buyer represents and warrants that by using AdAgent to initiate a Flycast
Upfront Sale, it has made a firm offer to buy Impressions at its designated
price from a particular Seller. If Seller accepts this offer, Buyer represents
and warrants that it is obligated to pay for the Flycast Upfront Sale in
accordance with Section 2.6 hereof.
2.3. AdAgent License.
Notwithstanding any other provision contained herein, Buyer represents and
warrants that it shall use AdAgent in accordance with the AdAgent License
Agreement attached hereto as Exhibit A. In addition, Buyer represents and
warrants that it shall comply with the Terms and Conditions of use of AdAgent as
may be posted on the Flycast web site from time to time.
2.4. Billing.
Except as provided in Section 2.8, Flycast shall provide a detailed invoice to
Buyer within thirty (30) days of the end of the month in which Impressions are
purchased on the Flycast Open Network. For example, Buyer will be billed by the
end of February for ads placed during the preceding month of January. If Buyer
is also a Seller, Flycast has the option to adjust the invoice to reflect an
offset equal to the amount of any balance due Flycast from the Seller's
purchases of impressions on the Flycast Open Network.
2.5. Payment.
Except as provided in Section 2.8, Buyer represents and warrants that it will
pay Flycast within 30 days of the mailing date of the invoice. Late payments
bear interest at the rate of 2% per month, or, if less, the highest rate
permitted under law.
2.6. Discrepancies.
Buyer has thirty (30) days from the receipt of the invoice to report any
discrepancy or disagreement with the invoice. Flycast and Buyer will use their
best efforts to resolve any discrepancy or disagreement quickly and fairly. The
existence of a discrepancy with respect to a portion of the invoice does not
relieve Buyer's obligation to pay the uncontested portion of the invoice on a
timely basis.
2.7. Credit Application: Prepayment.
Upon Buyer's completion of the credit application attached hereto as Exhibit B,
Flycast will determine the Buyer's monthly credit limit. Buyer agrees that it
will prepay any amounts anticipated to exceed its monthly credit limit.
2.8. Credit Card Purchases.
Buyer may elect to pay any amounts due hereunder with a valid credit card. Buyer
shall be required to pay amounts due hereunder with a credit card in the event
Buyer's expenditures hereunder average $1,000 or less per month.
2.9. Ad Blocking.
Flycast provides Sellers with an automated procedure for blocking selected
advertisers or advertisements from appearing on their Ad Spaces. Seller is
responsible for utilizing Flycast's ad blocking system in accordance with the
procedures set forth on Flycast's web site. The effectiveness of the Flycast
blocking procedure depends upon the Buyer registering accurately each Ad
Creative using Flycast Ad Registry. Buyer represents and warrants that it will
complete Ad Registry accurately and completely with respect to each Ad Creative
Buyer places on the Flycast Open Network.
2.10. Web Site Content.
Buyer can evaluate each Ad Space and associated web site or web page content
prior to purchasing an Impression on the Flycast Open Network. Although Flycast
maintains strict quality standards with respect to the content of the Sellers
making Impressions available for sale, Flycast cannot determine the
appropriateness of specific content for Buyer's advertising. Accordingly, it is
the Buyer's responsibility to evaluate the content of the web site or web page
associated with the Ad Spaces it purchases. BUYER AGREES THAT NEITHER FLYCAST
NOR ANY SELLER SHALL BE LIABLE FOR THE CONTENTS OF ANY WEB SITE OR WEB PAGE ON
THE FLYCAST OPEN NETWORK.
Section 3.0. Standard Terms and Conditions
Section 3.1. Quality Assurance.
Buyer will conduct its web advertising campaigns on the Flycast Open Network in
accordance with the highest industry standards. Buyer acknowledges that Flycast
has no responsibility to review the Buyer's Ad Creative. Without limiting the
foregoing, Buyer's web site(s) and Ad Creative shall not contain, or contain
links to, content promoting the use of alcohol, tobacco or illegal substances;
nudity, sex, pornography, or adult-oriented content; expletives or inappropriate
language; content promoting illegal activity, racism, hate, "spam", mail fraud,
pyramid schemes, or investment opportunities or advice not permitted under law;
or any other content deemed inappropriate by Flycast in its sole discretion.
Section 3.2. Proprietary Rights.
Buyer agrees that it shall not have, nor will it claim, any right, title or
interest in any advertising content delivered by Flycast (other than its own
advertising content), the Flycast Ad Management System or any elements thereof
(including, without limitation, the grant of a license in or to the Flycast Ad
Management System or any software, source codes, modifications, updates and
enhancements thereof or any other aspect of Flycast's service), the name
"Flycast" or any derivative thereof, or any other trademarks or logos which are
owned or controlled by Flycast and made available to Buyer in any manner.
Section 3.4. Public Relations.
Flycast retains the right to refer to Buyer as a customer in its web site, press
releases and marketing collateral.
Section 3.5. Representation and Warranties.
Each party represents and warrants to the other party that such party has the
full corporate right, power and authority to enter into this Agreement and to
perform the acts requires of it hereunder, and the execution of this Agreement
and the performance by such party of its obligations and duties hereunder, do
not and will not violate any agreement to which such party is a part or by which
it is otherwise bound; and when executed and delivered by such party, this
Agreement will constitute the legal, valid and binding obligation of such party,
enforceable against such party in accordance with its terms. Such party
acknowledges that the other party makes no representations, warranties or
agreements (written or oral) related to the subject matter except as expressly
provided for in this Agreement.
Section 3.6. Limitation of Liability.
The parties agree that: (i) Flycast exercises no control and has no
responsibility whatsoever over the content or quality of any web site content,
Ad Spaces, or Ad Creative, (ii) use of Flycast's services is at Buyer's own
risk, and (iii) this is not a contract for the sale of goods, and, therefore, is
not subject to the Uniform Commercial Code.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED "AS IS" AND "AS
AVAILABLE" AND FLYCAST DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR
IMPLIED, FOR THE ADVERTISING SERVICES, INCLUDING BUT NOT LIMITED TO THE IMPLIED
WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED
WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. Flycast
shall not be liable for any advertisers or content providers whose content
appear on the Flycast Open Network, nor the contents of any Ad Creative, web
site or web page, nor shall Flycast be liable for any loss, cost, damage, or
expense (including attorney's fees) incurred by Buyer or any content provider in
connection with a content provider's or Buyer's participation in the Flycast
Open Network. Flycast makes no guarantees with respect to the services rendered
under this Agreement, and neither Flycast nor any of its officers, directors,
agents, Flycast Open Network members or sponsors shall have any liability as a
result of Flycast's performance of this Agreement, including, without
limitation, Internet disruption, interrupted service, errors or delays in
providing the service, levels of use or impressions, loss of data, failure to
provide requested subject categories, failure to meet Seller or advertiser's
requirements, or other injury, damage, or disruption to advertiser or
advertiser's web site. Without limiting the foregoing, Flycast's entire
liability under, for breach of, arising under, or related to this Agreement or
the services to be provided hereunder (whether in tort, contract or any other
theory), and Buyer's sole remedy, is for Flycast, if possible, to provide the
services agreed hereunder or refund any amounts prepaid by Buyer related to the
services giving rise to such liability, provided such refund shall not exceed
the aggregate charges for services rendered for the prior six months under this
Agreement that gave rise to such liability. In no event shall Flycast be liable
for indirect, exemplary, special, incidental or consequential damages, or costs,
including but not limited to, any lost profits or revenues, loss of use or
goodwill, or any third party claims, even if such party has been advised of the
possibility of such damages.
Section 3.7. Nondisclosure and Proprietary Information.
Buyer shall not disclose any of the terms and conditions of this Agreement to
any third party without the express written consent of Flycast. Neither party
shall disclose to any third party the Confidential Information of the other
party and shall not use any such Confidential Information for any purpose other
than the purpose for which it was originally disclosed to the receiving party.
"Confidential Information" means any information of a party disclosed to the
other party, which is identified as, or should be reasonably understood to be,
confidential to the disclosing party, including, but not limited to the results
of Buyer's purchase of Impressions on the Flycast Open Network, know-how, trade
secrets, technical processes and formulas, software, customer lists, unpublished
financial information, business plans, projections, and marketing data.
"Confidential Information" shall not include information that (i) is known to
the receiving party at the time it receives Confidential Information; (ii) has
become publicly known through no wrongful act of the receiving party; (iii) has
been rightfully received by the receiving party from a third party authorized to
make such communication without restriction; (iv) has been approved for release
by written authorization of the disclosing party; or (v) is required by law to
be disclosed.
Section 3.8. Indemnification.
Buyer, at its own expense, shall indemnify, defend and hold Flycast and its
officers, directors, employees, agents, distributors and licensees harmless from
and against any judgement, losses, deficiencies, damages, liabilities, costs and
expenses ( including reasonable attorneys' fees and expenses) incurred in
connection with or arising from any claim, suit, action or proceeding
(collectively, a "Claim") to the extent the basis of such Claim relates to a
breach by Buyer under this Agreement or in connection with claims arising out of
publication of any content or information published by Buyer hereunder
(including, without limitation, any claim of trademark or copyright
infringement, libel, defamation or breach of confidentiality) or any product or
service related to such content or information or any breach of a third party
contact.
Section 3.9. Miscellaneous.
(a) Independent Contractors. The parties to this Agreement are independent
contractors. Neither party is an agent or partner of the other party. Neither
party shall have any right, power or authority to enter into any agreement for
or on behalf of, or incur any obligation or liability of, or to otherwise bind,
the other party. This Agreement shall not be interpreted or construed to create
an association, agency, joint venture or partnership between the parties or to
impose any liability attributable to such a relationship upon either party.
(b) Entire Agreement. This Agreement and the AdAgent License Agreement attached
hereto as Exhibit A sets forth the entire Agreement between the parties and
supersedes prior proposals, agreements, and representations between the parties,
whether written or oral, regarding the subject matter contained herein. This
Agreement may be changed only by mutual agreement of the parties in writing.
This Agreement shall be executed in any number of counterparts, each of which
shall be an original and all of which shall constitute together but one and the
same document.
(c) Assignment. Buyer may not assign or otherwise transfer, whether voluntarily
or by operator of law, any rights or obligations under this Agreement without
the prior written consent of Flycast.
(d) Governing Law/Notice. This Agreement shall be construed and interpreted
according to the laws of the State of California without reference to conflicts
of law provisions. The parties hereby consent to the exclusive jurisdiction of
the courts of San Francisco County, California. All written notices between the
parties shall be deemed to have been given if personally delivered, sent by
courier or certified, registered or express mail, transmitted by electronic mail
via the Internet (with copy sent by registered or certified airmail) to the
address set forth above (or as otherwise directed in writing). Unless otherwise
provided herein, all notices shall be deemed to have been duly given on: (a) the
date of receipt (or if delivery is refused, the date of such refusal) if
delivered personally, by electronic mail or by courier; or (b) three (3) days
after the date of posting if transmitted by mail.
(e) Waiver/Severability. The waiver by either party of a breach or right under
this Agreement will not constitute a waiver of any other or subsequent breach or
right. If any provision of this Agreement is found to be invalid or
unenforceable by a court of competent jurisdiction, such provision shall be
severed from the remainder of this Agreement, which will remain in full force
and effect.
(f) Force Majeure. Flycast shall not be in default or otherwise liable for any
delay in or failure of its performance under this Agreement where such delay or
failure of its performance under this Agreement arises by reason of any Act of
God, or any government or any governmental body, acts of war, strikes or labor
disputes, or other cause beyond the control of Flycast.
Flycast Communications Corporation
By: /s/ Xxxx Xxxxxxxx
Title: COO
Flycast Communications Corporation
Buyer
By: /s/ Xxxxxxx X. Xxxxxxx
Title: C.E.O.
(Company Name): Acceleration Software
Exhibit A
AdAgent License Agreement
ONCE YOU DOWNLOAD FLYCAST'S SOFTWARE, YOU AND THE COMPANY OR ENTITY THAT YOU
REPRESENT ("YOU") WILL BE BOUND BY THE FOLLOWING LICENSE AGREEMENT
("AGREEMENT").
1. GRANT. Subject to the terms of this Agreement, Flycast Communications
Corporation ("Flycast") hereby grants You a limited, personal,
nontransferable, nonsublicensable, royalty-free, nonexclusive license to
use the AdAgent software product that You are about to download in object
code form, along with the documentation that accompanies it ("Software")
for managing, displaying, and placing advertising on the World Wide Web.
The Software consists of various components, which are identified by
appropriate filenames in the download. You may copy, distribute, install,
and use AdAgent for internal use only. You may only install and use one
copy of the AdAgent and other components of the Software. You may also copy
the Software for archival purposes, provided any copy must contain all
of the original Software's proprietary notices.
2. RESTRICTIONS. You may not, directly or indirectly: modify, translate,
reverse engineer, decompile, disassemble (except to the extent applicable
laws specifically prohibit such restriction), create derivative works based
on, or otherwise attempt to discover the source code or underlying ideas or
algorithms of the Software; a copy and distribute (except for the purposes
set forth above), rent, lease, or otherwise transfer rights to the
Software; use the Software for timesharing or service bureau purposes, or
for performing comparisons or other "benchmarking" activities, either alone
or in connection with any other software (and you will not publish the
results of such activities); or remove any proprietary notices or labels on
the Software. As between the parties, title, ownership rights, and
intellectual property rights in and to the Software, and any copies or
portions thereof, shall remain in Flycast and its suppliers and licensors.
The Software is protected by the copyrights laws of the United States and
international copyright treaties.
3. SUPPORT AND UPGRADES. This agreement does not obligate Flycast to provide
any support or upgrades, patches, enhancements, and fixes (collectively,
"Upgrades") for the Software. Notwithstanding the foregoing, and Upgrades
that You may receive become part of the Software and the terms of this
Agreement apply to them.
4. CONTENT. Title, ownership rights, and intellectual property rights in and
to any advertisements, information, text, pictures, images, avatars,
characters, sounds, personalities, code (source and object), data and other
materials ("Content") provided by third parties, or accessed through,
managed with, processed with, or otherwise used in connection with the
Software is the property of the applicable owner any may be protected by
applicable copyright or other law. This Agreement gives You no rights,
title, or interest to Content (including without limitation Content that
You post or create using the Software). Flycast exercises no screening,
editorial, or other control over Content, and Content may include material
that could be deemed distasteful, misleading, inaccurate, offensive,
pornographic or otherwise objectionable. You hereby agree to indemnify and
hold harmless Flycast from any and all damages, liability, costs, and
expenses (Including attorneys' fees) arising from claims related to your
use of the Content, including, without limitation, infringement,
misappropriation, privacy, security, right of publicity, false advertising,
fraud, consumer protection, and claims that Content is obscene,
pornographic, indecent, or otherwise objectionable.
5. WARRANTY AND DISCLAIMER. FLYCAST PROVIDES THE SOFTWARE AND ANY SERVICES
THAT YOU RECEIVE "AS IS" AND WITHOUT WARRANTY OF ANY KIND, AND FLYCAST
HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT
LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT. THIS DISCLAIMER
OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
6. LIMITATION OF LIABILITY. You assume the entire risk as to the quality and
performance of the Software. Flycast assumes no liability for the cost of
any service or repair if the Software is defective. Further, You assume
the responsibility f, and any costs or liability associated with, making
a connection (by any means) to the Internet, or other online service, or
network and You understand that some features of the Software will not
operate without such a connection. UNDER NO CIRCUMSTANCES AND UNDER NO
LEGAL THEORY, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE, SHALL FLYCAST
OR ITS LICENSORS, SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER
PERSON FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST
PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER
FAILURE OR MALFUNCTION, DAMAGES RESULTING FROM DISABLING OF THE SOFTWARE,
OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES. IN NO EVENT WILL
FLYCAST BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE LICENSE FEES PAID IN
CONNECTION WITH THE SOFTWARE, EVEN IF FLYCAST SHALL HAVE BEEN INFORMED OF
THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY.
7. TERMINATION. This Agreement will become effective upon the effective date
of the Web Advertising Services Agreement between You and Flycast and will
last until terminated under this Section. You may terminate this Agreement
and the license granted herein at any time by destroying or removing from
all hard drives, networks, and other storage media all copies of the
Software, and paying all amounts due to
Flycast under the web Advertising Services Agreement. Flycast may
terminate this Agreement and the license granted herein immediately if You
breach any provision of this Agreement. This Agreement will automatically
terminate, without notice from Flycast, upon the termination of the web
Advertising Services Agreement between You and Flycast. Upon termination of
this Agreement You agree to destroy or remove from such storage media all
copies of the Software. Sections 2 and 4 through 11 shall survive
termination of this Agreement.
8. EXPORT CONTROLS. You shall comply with all export laws and restrictions
and regulations of the Department of Commerce, the United States Department
of Treasury Office of Foreign Assets Control ("OFAC"), or other United
States or foreign agency or authority, and agree not to export, or allow
the export or re-export of the Software in violation of any such
restrictions, laws or regulations (including, without limitation, export
or re-export to destinations prohibited either in Country Groups Q, S, W, Y
or Z country specified in the then current Supplement No. 1 to Section 770
of the U.S. Export Administration regulations (or any successor supplement
or regulations), or the OFAC regulations found at 31 C.F.R. 500 et seq.)
By downloading or using the Software, You are agreeing to the foregoing
and You are representing and warranting that You are not located in, under
the control of, or a national or resident of any restricted country or on
any such list.
9. U.S. GOVERNMENT RESTRICTED RIGHTS. Use, duplication or disclosure of the
Software by the Government is subject to restrictions set forth in
subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer
Software clause at DFAR 252227-7013 or subparagraphs (c)(1) and (2) of the
Commercial Computer Software - Restricted Rights at FAR 52.227-19, as
applicable, and all other Federal laws and regulations that protect
Flycast's rights in privately developed computer software.
10. MISCELLANEOUS. This Agreement represents the complete agreement concerning
this license between the parties and supersedes all prior agreements and
representations between them. It may be amended only by a writing executed
by both parties. If any provision of this Agreement is held to be
unenforceable for any reason, such provision shall be reformed only to the
extent necessary to make it enforceable. This Agreement shall be governed
by and construed under California law, without reference to conflict of law
provisions.
11. CONFIDENTIALITY. The Software and other technical, business, and financial
information, including, without limitation, all pricing information, that
You receive from Flycast is the confidential information of Flycast
("Confidential Information"). You agree not to disclose or use Confidential
Information for any purpose except the purposes permitted in this
Agreement. Confidential Information shall remain confidential until You
can document that such Confidential Information is generally available to
the public. You acknowledge that a breach of the obligations of this
Section will cause irreparable harm to Flycast, and you hereby consent to
Flycast being entitled to equitable relief (in addition to any other
remedies) to enforce the terms of this Section.
