FASTCLICK Internet Advertising Network
ONLINE ADVERTISING SERVICES CONTRACT #906-01
Effective Date: 2/1/2001 Effective until terminated or superceded.
1) PARTIES
Pursuant to this Agreement, Xxxxxxxxx.xxx, Inc. ("Fastclick") of 0000 Xxxxxxxxx
Xxxxxx, Xxxxx Xxxxxxx, XX 00000, and Customer ("Customer") shall agree to the
following terms and conditions for the provision of online advertising services.
This includes, but is not limited to, the serving, tracking and reporting of
advertising campaigns separately contracted between Customer and Customer's
Client(s) ("Client") who may be web publishers, agencies, brokers, or other
entities.
2) USE POLICY
2A) SCOPE OF SERVICES: Fastclick online advertising services are web-based
management applications. All serving, tracking, and reporting activities
associated with one transaction are hereby called an Event ("Event"). Each Event
may include, but is not limited to: image serving, targeting, frequency capping,
redirection, click tracking, and ROI tracking. Services can be customized for
Customer to a limit determined solely by Fastclick on a case-by-case basis.
Active participation in the development of Fastclick online advertising services
and the user interface to enhance the ability to provide cost-effective
solutions is encouraged for all Customers and their Clients.
2B) PRICING AND PAYMENT: A minimum fee of $500 per month will be billed
regardless of account activity for all open accounts. Above the $500 minimum,
pricing of Fastclick online advertising services covered by this contract is
based on throughput only (the number of actual Events per month). In addition to
all of the possible components of an Event, pricing includes all interface setup
and account administration. All Events falling under the same contract are
billed at the same rate, regardless of relative complexity. Service fees are
waived for Customer campaigns run on the Fastclick Network. Rates are based on
the number of Events actually provided in any given calendar month. Payment
terms are negotiated separately from this contract and are typically NET 30,
invoiced by calendar month. Fastclick reserves the right to set and negotiate
specific payment terms on a Customer-by-Customer basis. Under no circumstances
will payment for Event services be delayed by the receipt of payment by Customer
from Client(s). Fastclick reserves the right to adjust rates based on market
pressures and will provide Customer 30-day written notice of such changes.
Effective rates and other specific points for this contract are provided in the
Fee Table.
2C) ACCOUNT ACTIVATION AND TERMINATION: This contract includes the right to
72-hour cancellation by either party, with or without cause. In the event of
cancellation, actuals will be billed, including the $500 minimum if applicable.
Termination notice may be provided via email or any other public means and will
be effective 72-hours from the date and time the notice is sent. Upon receipt of
such termination notice, Customer agrees to immediately remove, or have Clients
immediately remove, from webpages and other files, all Fastclick software code
for serving and tracking. Fastclick reserves the right to refuse service to any
new or existing Customer, in its sole discretion, with or without cause.
Fastclick reserves the right, in its sole discretion and without liability, to
reject, omit or exclude any Creative; Client or Website for any reason at any
time, regardless of whether such Creative, Client, or Website was previously
accepted.
0000 Xxxxxxxxx Xxxxxx #000 Xxxxx Xxxxxxx, XX 00000
Phone: (000) 000-0000 Fax: (000) 000-0000 xxx.xxxxx0xxx.xxx
Online Advertising Services Contract #906-01 fastclick
FEE TABLE
MAX
MILLIONS OF EVENTS PER CALENDAR MONTH(1) FEE(2) LEAD TIME(3) CLIENTS(4)
---------------------------------------- ---------- ------------ ----------
0 to 2 $ 500 < 1 day Unlimited
---------------------------------------- ---------- ------------ ----------
2 to 50 $ 0.15 CPM < 1 day Unlimited
---------------------------------------- ---------- ------------ ----------
50 to 250 $ 0.12 CPM < 3 weeks Unlimited
---------------------------------------- ---------- ------------ ----------
250 to 500 $ 0.10 CPM < 3 weeks Unlimited
---------------------------------------- ---------- ------------ ----------
Over 500 $ 0.09 CPM < 6 weeks Unlimited
---------------------------------------- ---------- ------------ ----------
(1) An Event constitutes all serving, tracking, and reporting activities
associated with one transaction between advertiser and publisher. For
example, the image serving, click tracking, ROI tracking and online
reporting for a single banner impression are all part of the same Event.
(2) A minimum fee of $500 per month will be billed regardless of account
activity for all open accounts. For the purposes of this contract, CPM is
defined as the Cost per 1000 Events.
(3) Lead times are estimates only and will only be relevant when significant
throughput changes occur. Complex Events may require additional lead time.
(4) Max clients is the total number of advertisers and publishers for the
account.
2D) REPRESENTATION: Customer represents and warrants that: (1) it is the owner
or is licensed to use the entire contents and subject matter contained in the
Creative and all Websites associated with an Event; (2) the Creative and all
Websites associated with an Event are free of any 'worm", "virus" or other
device that could impair or injure any person or entity; (3) the Creative and
all Websites associated with an Event do not violate any law or regulation
governing false or deceptive advertising, sweepstakes, gambling, comparative
advertising, or trade disparagement; (4) the Creative and all Websites
associated with an Event do not contain any misrepresentation, or content that
is defamatory or violates any rights of privacy or publicity; (5) Customer and
Customer's Clients are generally familiar with the nature of the Internet and
will comply with all laws and regulations that may apply to the Creative and all
Websites associated with an Event; and (6) the Creative and all Websites
associated with an Event do not and will not infringe any copyright, trademark,
patent or other proprietary right. Customer grants Fastclick the right and
license to use, reproduce, transmit, and distribute the Creative and associated
software codes to all websites or other files associated with the Event.
2E) CLIENT ACCESS: Administration of Client access is Customer's responsibility,
and is subject to prior approval of Fastclick. Fastclick reserves the right, in
its sole discretion and without liability to refuse access to any new or
existing Client.
2
Online Advertising Services Contract #906-01 fastclick
2F) CREATIVE, LINKS AND CODE: Customer is solely responsible for the upload,
download and distribution of pieces of software code associated with the
effective performance of an Event. All ineffective Events that result from the
failure of Customer, or Customer's Clients, to effectively implement or
distribute code provided by Fastclick will be billed as actuals. All ineffective
Events that result from unauthorized code modifications will be billed as
actuals. All Fastclick code is proprietary to Fastclick, and may not be -shared
with unauthorized Customers or Clients.
2G) CONFIDENTIALITY AND NON-DISCLOSURE: Fastclick, Customer, and Customer's
Client(s) mutually agree to hold confidential and proprietary all account
information and trade secrets ("confidential information") in trust and
confidence and agree that it shall be used only for the contemplated purposes,
shall not be used for any other purpose, or disclosed to any third party.
Confidential information includes, but is not limited to: the value of
customer's business with Fastclick, rates and fees, traffic volumes, the
identity of Client(s), business models, business practices, revenue sources,
software code, software designs, hardware designs, and network architecture
designs. Fastclick reserves the right to identify its relationship with Customer
per paragraph 4b herein.
2H) TRAFFIC LIMITATIONS: Terms of this agreement are subject to Fastclick
hardware, software, and bandwidth traffic limitations. Failure to deliver
because of technical difficulties does not represent a failure to meet the
obligations of this contract. In the event that Fastclick causes Events to be
ineffective, liabilities are limited to Fastclick fees that would otherwise have
been incurred. Ineffective Events that are a result of Fastclick "down-time",
due to technical problems, or other problems, will not be counted as part of the
actuals. It is Fastclick' s sole discretion to determine if Fastclick is the
cause of ineffective Events.
2I) DATA REPORTING AND DISCREPANCIES: Fastclick Event counts are final with
respect to the terms of this contract between Customer and Fastclick. Fastclick
Event counts, and other associated data, may be used by Customer, at the sole
discretion of Customer, as final numbers for the campaign transaction between
Customer and Client(s). Under no circumstances will Fastclick be required to
produce data sources not presented or downloadable from Customer's online
interface. Under no circumstance does Fastclick certify or warrant that the
numbers used by Customer represent the "actual" or "audited" transactions
between Customer and Client(s).
3) LIABILITY POLICY
3A) INDEMNIFICATION: Customer hereby indemnities and holds harmless Fastclick
(including their successors, directors, officers, employees, agents, assigns)
from and against all claims, loss, liability, damage and expense of any nature
(including attorneys' reasonable fees) in connection with the online advertising
services provided, for any actual or alleged breach of any term of this
Agreement.
3B) DAMAGES: In no event shall either party be liable for special, indirect,
incidental, or consequential damages,- including, but not limited to, loss of
data, loss of use, or loss of profits arising there under or from the provision
of services.
3C) WARRANTY DISCLAIMER: Fastclick does not make and hereby expressly disclaim
all warranties, express or implied, with respect to any matter whatsoever,
including, without limitation, the performance of any software programs
incidental to services rendered by Fastclick, services provided there under, or
any output or results thereof. Fastclick specifically disclaims any implied
warranty of merchantability or fitness for a particular purpose.
3
Online Advertising Services Contract #906-01 fastclick
3D) LIMITATION OF LIABILITY: Fastclick will not be subject to any liability
whatsoever for (a) any failure to provide reference or access to all or any part
of the Event due to systems failures or other technological failures of
Fastclick or of the Internet; (b) delays in delivery and/or non-delivery of a
campaign, including, without limitation, difficulties with a Publisher or
Website, difficulties with a third-party server, or electronic malfunction; and
(c) errors in content or omissions in any Creative provided by Customer. The
total liability of Fastclick arising out of this contract or the services
provided there under, whether based in contract, tort or otherwise, shall not
exceed (1) the amount paid to Fastclick for services provided on Customer's
behalf or (2) $10,000, whichever is less,
4) GENERAL
4A) APPLICABILITY: In This Agreement, including all attachments which are
incorporated herein by reference, constitutes the entire agreement between the
parties with respect to the subject matter hereof, and supersedes and replaces
all prior and contemporaneous understandings or agreements, written or oral,
regarding such subject matter. Applicable sections shall survive expiration or
early termination of this Agreement. Nothing in this Agreement shall be deemed
to create a partnership or joint venture between the parties and neither
Fastclick nor Customer shall hold itself out as the agent of the other, except
for that specified in this Agreement. Neither party shall be liable to the other
for delays or failures in performance resulting from causes beyond the
reasonable control of that party, including, but not limited to, acts of God,
labor disputes or disturbances, material shortages or rationing, riots, acts of
war, governmental regulations, communication or utility failures, or casualties.
Any notice required or permitted to be given by either party under this
Agreement shall be in writing and shall be sent by a reputable overnight mail
service (e.g., Federal Express), or by first class mail (certified or
registered). Failure by either party to enforce any provision of this Agreement
shall not be deemed a waiver of future enforcement of that or any other
provision. Any waiver, amendment or other modification of any provision of this
Agreement shall be effective only if in writing and signed by the parties. If
for any reason a court of competent jurisdiction finds any provision or this
Agreement to be unenforceable, that provision of the Agreement shall be enforced
to the maximum extent permissible so as to affect the intent of the parties, and
the remainder of, this Agreement shall continue in full force and effect.
Headings used in this Agreement are for ease of reference only and shall not be
used to interpret any aspect of this Agreement.
4B) PUBLIC RELEASE: Customer shall not release any information regarding
Customer's or Client(s)'s relationship with Fastclick, including, without
limitation, in press releases or promotional or merchandising materials, without
the prior written consent of Fastclick. Fastclick shall have the right to
publicly identify Customer as such for marketing and promotional purposes, given
the specific limitations of paragraph 2g herein (Confidentiality and
Non-Disclosure). No press releases or general public announcements shall be made
without the mutual consent of Fastclick and Customer.
4C) AUDIT: Fastclick shall have the sole responsibility for calculation of all
Event statistics, including impressions and click through numbers. In the event
Customer or Client disagrees with any such calculation, a written request should
be sent immediately to Fastclick. Fastclick will provide Customer with a
reviewed audit of the statistics, which shall be final and binding on both
parties.
4D) ASSIGNMENT: Customer may not assign this Agreement, in whole or in part,
without written consent from Fastclick. Any attempt to assign this Agreement
without such consent will be null and void.
4
Online Advertising Services Contract #906-01 fastclick
4E) GOVERNING LAW: This Agreement will be governed by and construed in
accordance with the laws of the State of California.
4F) ABILITY TO ENTER INTO AGREEMENT: By executing this Agreement, Customer
warrants that Customer (or Authorized Representative of Customer) is at least 18
years of age, and that there is no legal reason that Customer cannot enter into
a binding contract.
Accepted by Fastclick: Accepted by Customer:
Fastclick. Inc. Fastclick. Inc.
------------------------- -------------------------
(Company) (Company)
/S/ Xxxx Xxxxx /S/ Xxxx Xxxxxxx
------------------------- -------------------------
(Signature) (Signature)
Xxxx Xxxxx Xxxx Xxxxxxx
------------------------- -------------------------
(Printed Name) (Printed Name)
CEO President and CEO
------------------------- -------------------------
(Title) (Title)
24 January, 2001 2/13/2001
------------------------- -------------------------
(Date) (Date)
5
FASTCLICK CREDIT APPLICATION
Complete this application, print, sign and return by fax to: (000) 000-0000
The undersigned company is applying for credit with Xxxxxxxxx.xxx, Inc. and
agrees to abide by the standard terms and conditions of Xxxxxxxxx.xxx, Inc. as
printed at the end of this application.
BILLING INFORMATION
Company name Nettaxi Online Communities
-------------------------------------------------------------------------------
DBA (if different)
-------------------------------------------------------------------------------
Contact person Xxxx Xxxxxxx
-------------------------------------------------------------------------------
Address 1696 Dell Avenue Campbell CA 95008
-------------------------------------------------------------------------------
Phone 000-000-0000 Fax
----------------------------------------- ------------------------------------
Federal tax ID or Social Security number 00-0000000
-------------------------------------------------------------------------------
Date business established 1997 No. of employees 20
----------------------------------------- ------------------------------------
Type of business
-------------------------------------------------------------------------------
Are you a:
[X] CORPORATION State of incorporation DE
----------------------------------------------
Names, titles, and addresses of your three chief corporate officers
Xxxxxx Xxxxxxxx, Xx
-------------------------------------------------------------------------------
Xxxx Xxxxxxxx
-------------------------------------------------------------------------------
Name and address of your resident agent
-------------------------------------------------------------------------------
[ ] PARTNERSHIP
Names and addresses of the partners
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
[ ] SOLE PROPRIETORSHIP
Have you ever had credit with us before? [ ] Yes [ ] No
If yes, under what name?
-------------------------------------------------------------------------------
Authorized purchasers
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Purchase order required? [X] Yes [ ] No
-------------------------------------------------------------------------------
BANK REFERENCE
Account #
-------------------------------------------------------------------------------
Phone
-------------------------------------------------------------------------------
Contact person
-------------------------------------------------------------------------------
Name of bank
-------------------------------------------------------------------------------
Address
-------------------------------------------------------------------------------
0000 Xxxxxxxxx Xxxxxx #000 Xxxxx Xxxxxxx, XX 00000
Phone: (000) 000-0000 Fax: (000) 000-0000 - xxx.xxxxxxxxx.xxx
FASTCLICK CREDIT APPLICATION
TRADE REFERENCES
Reference #1 Name Alchemy Communication
-------------------------------------------------------------
Address 0000 XxXxxx Xxxxxx Xxxxxxxxxx, XX 00000
-------------------------------------------------------------
Phone 000-000-0000
-------------------------------------------------------------
Reference #2 Name South Bay VII
-------------------------------------------------------------
Address 0000 Xxxx Xxxxxx Xxxxxxxx XX 00000
-------------------------------------------------------------
Phone 000-000-0000
-------------------------------------------------------------
Reference #3 Name Stream Magic Inc
-------------------------------------------------------------
Address 0000 X 0xx Xxxxxx Xxx X0-000 Xxx Xxxxxxx XX 00000
-------------------------------------------------------------
Phone213-596-3000
-------------------------------------------------------------
I represent that the above information is true and is given to induce
XXXXXXXXX.XXX, INC. to extend credit to the applicant. My company and I
authorize XXXXXXXXX.XXX, INC. to make such credit investigation as
XXXXXXXXX.XXX, INC. sees fit, including contacting the above trade references
and banks and obtaining credit reports. My company and I authorize all trade
references, banks, and credit reporting agencies to disclose to XXXXXXXXX.XXX,
INC. any and all information concerning the financial and credit history of my
company and myself,
Please print, sign and return this application by fax to: (000) 000-0000
Signatory must be a proprietor, a general partner or an officer of the company
with authority to enter into contractual agreements. To the best of my/our
knowledge all information provided is complete and accurate. I/WE AGREE TO BE
BOUND BY THE TERMS AND CONDITIONS SET FORTH BELOW.
Authorized signature: /s/ Xxxx Xxxxxxxx
-------------------------------------------------------------------------------
Printed name: Xxxx Xxxxxxxx
-------------------------------------------------------------------------------
Title: President and CEO Date: 2/13/01
-------------------------------------------------------------------------------
TERMS AND CONDITIONS
1. Payment terms are NET 30 from campaign end date or end-of-month for
extended campaigns. Fastclick will invoice amounts due. In addition to
payment by check, NET 30 payments can be made online, by credit card.
2. A service charge of 2% per month, or the maximum allowable by law, will be
added to all amounts billed if not paid by the due -date indicated on the
Invoice.
3. No additional credit will be extended to past due accounts unless
satisfactory arrangements are made with our credit department.
4. In the event that payment is not timely made, you agree to pay all
reasonable attorney's fees and court or other collection costs as permitted
by law as actually incurred by Xxxxxxxxx.xxx. Xxxxxxxxx.xxx reserves the
right to assess a fee for returned checks to cover administrative costs and
bank charges.
5. Personal guarantee: if the credit customer is a corporation, then those
signing this application, whether signing as an officer or not, personally
guarantee payment for all items purchased on credit by the corporation.
2
