CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BASED UPON A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS ARE DENOTED BY ASTERISKS.
DATABASE
DEVELOPMENT AGREEMENT
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This Agreement (this "Agreement") is dated as of September 7, 1999
between Naviant Technology Solutions, Inc. ("NAVIANT"), a Delaware corporation
with an address at 00 Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx Xxxxxx, Xxxxxxxxxxxx
00000-0000, and 24/7 Media, Inc. ("24/7"), a Delaware corporation with an
address at 0000 Xxxxxxxx, 00xx xx, Xxx Xxxx, XX 00000 (each of 24/7 and NAVIANT,
a "Party" and together, the "Parties").
WITNESSETH
WHEREAS, NAVIANT has acquired assets from IntelliQuest Information
Group, Inc. ("IntelliQuest") relating to customer registration services for
computer hardware, software and peripheral companies, and, in connection with
such services, NAVIANT obtains identification data of technology users, and by
employing such identification data, develops demographic profiles of such
technology users;
WHEREAS, 24/7 operates networks (the "24/7 Networks") of Internet web
sites for which it solicits advertisers regarding the placement of advertising
for display on such web sites and obtains identification data from registrants
thereto; and
WHEREAS, the Parties desire to enter into this Agreement to supersede
the existing Database Development Agreement between IntelliQuest and 24/7 dated
October 2, 1998 (the "Original Agreement").
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. License of NAVIANT data to 24/7.
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A. License of Data. NAVIANT hereby licenses in perpetuity, and
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shall use commercially reasonable efforts to deliver to 24/7, data files
("NAVIANT Data File Records") (as defined below). The NAVIANT Data File Records
shall consist of the name, addresses and phone numbers of those consumers who
have granted the necessary permissions (in determining its whether necessary
permissions have been granted, NAVIANT shall consider the views of 24/7 and its
advisors) and all data available to NAVIANT from the NAVIANT High Tech Household
Database and other databases that are or become the property of NAVIANT
(collectively, the "HTHH Database"), where permissible and consistent with data
collection procedures associated with the HTHH Database. Each NAVIANT Data File
Record will also contain (i) a unique ID number, as mutually agreed to by the
Parties, that NAVIANT sets on the Internet browsers of registrants during the
registration process (each such number may be referred to as a cookie and the
process shall be referred to as "setting cookies"), in a manner mutually agreed
upon by 24/7 and NAVIANT, and (ii) certain other non-royalty based elements of
the HTHH Database as may be mutually agreed upon by the Parties. 24/7 shall not
provide any NAVIANT data to third parties; provided, however, that 24/7 may use
such data to enable
Web sites affiliated with the 24/7 Networks to demographically segment their
audiences for targeted ad delivery via 24/7. All licenses granted hereunder
shall be subject to any pertinent third party data use restrictions that are
made known in writing to the licensee. In the event that the any such use
restrictions become unduly burdensome to the licensee, the licensor shall employ
commercially reasonable efforts to thereafter source demographic profiles from
an alternative source.
B. Schedule. NAVIANT shall use commercially reasonable efforts to
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start setting "cookies" in the registration process immediately after the
Effective Date. NAVIANT will employ commercially reasonable efforts to provide
new data (cookie ID number and appended data elements) monthly during the term
of this Agreement.
C. Audits. During the term of the Agreement NAVIANT will have the
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right to audit certain matters as related to the provision of NAVIANT Data File
Records, up to two times per year. NAVIANT may at certain intervals designate an
independent auditor to examine books and records pertaining to the provision of
NAVIANT Data File Records. Such examinations will take place during business
hours with five (5) days prior written notice and be performed in such a manner
as not to interfere with normal business operations. The audits will be
conducted at the expense of NAVIANT, unless the audit reveals non-conformance
with the terms of this Agreement.
2. Fees. Beginning on February 1, 2001, and continuing through the end of
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the Term, 24/7 shall purchase all NAVIANT Data File Records made available to it
by NAVIANT for a fee no higher than the lowest fee that NAVIANT sells to any
similarly situated customer, but, in any event, not more than ***** per Data
File Record. NAVIANT shall not charge 24/7 for any records that are NAVIANT Data
File Records that are duplicates of 24/7 Data File Records furnished by 24/7 to
NAVIANT or duplicates of records previously provided by NAVIANT to 24/7.
3. Data Services: Data Matching. NAVIANT will provide data matching
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services for 24/7 for the purpose of targeting ads through the 24/7 Networks.
The data matching process includes; address standardization, validation, NCOA,
and appending of the HTHH data. NAVIANT shall charge 24/7 a fee for this
matching process, provided however, that said fee shall be no higher than the
lowest fee that NAVIANT charges for said services to any similarly situated
customer.
4. Banner Advertising. 24/7 will provide banner advertising inventory to
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NAVIANT for the purpose of enabling NAVIANT to resell such inventory to its
clients for targeted banner advertising by consumer via the 247 Network.
NAVIANT shall make commercially reasonable efforts to resell such banner
inventory. 24/7 shall charge NAVIANT for this banner inventory a ***** CPM for
such inventory.
5. License of 24/7 Data to NAVIANT.
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A. License. Where permissible (in determining its whether necessary
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permissions have been granted, 24/7 shall consider the views of NAVIANT and its
advisors) and consistent with data collection procedures associated with 24/7,
24/7 hereby licenses in
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perpetuity, and shall use commercially reasonable efforts to deliver to NAVIANT
the names, phone numbers, addresses and other information of all individuals who
are identified to the 24/7 Networks, plus all on-line channel preference
activity information (based on, among other things, frequently visited sites)
(to be mutually defined by NAVIANT and 24/7, consistent with the terms of this
paragraph), for such individuals and for any of the NAVIANT Data File Records
provided by NAVIANT to 24/7 pursuant to Section 1, for NAVIANT's use (the "24/7
Data File Records"). NAVIANT shall not provide any 24/7 data to third parties,
provided, however, that NAVIANT shall have the right to use 24/7 data solely to
identify households that are Internet-enabled households for inclusion in the
NAVIANT HTHH Database.
B. Delivery. 24/7 will collect, and deliver to NAVIANT, 24/7 Data File
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Records as soon as it is technologically able to do so and will deliver new
records on a monthly basis.
C. Fees. NAVIANT, at its option, may purchase all 24/7 Data File
-- ----
Records made available to it by 24/7 for the lowest fee that 24/7 sells 24/7
Data File Records to any similarly situated customer, but not more than *****
per 24/7 24/7 Data File Record. 24/7 shall not charge NAVIANT Data File Records
furnished by NAVIANT to 24/7 or duplicates of records previously provided by
24/7 to NAVIANT.
D. Audits. During the term of the Agreement 24/7 will have the right
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to audit certain matters as related to the provision of 24/7 Data File Records,
up to two times per year. 24/7 may at certain intervals designate an independent
auditor to examine books and records pertaining to the provision of 24/7 Data
File Records. Such examinations will take place during business hours with five
(5) days prior written notice and be performed in such a manner as not to
interfere with normal business operations. The audits will be conducted at the
expense of 24/7, unless the audit reveals non-conformance with the terms of this
Agreement.
6. Exclusivity.
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A. Prior to January 1, 2002, NAVIANT will not, without 24/7's written
consent, provide any products or services for DoubleClick, Flycast, ADSmart,
Real Media ValueClick, Winstar Interactive, Cybereps, Latitude 90, Burst,
AdForce, NetGravity, LinkExchange, Engage Technologies, and NetPerceptions and
any other companies that compete directly in a material manner with 24/7 Media's
business of selling inventory on behalf of third party Web sites. It is
understood and agreed that NAVIANT may perform any services and provide all
products to @Home/Excite.
B. Until January 1, 2002, 24/7 will use NAVIANT as its exclusive data
source of data derived from the business of processing third party product
registration data (registration data) and will not enter into a similar
agreement with other providers of technology customer or product registration
services such as Husdawg, Leader, SoftBank, Axtive, and Encompass.
C. NAVIANT acknowledges that 24/7 seeks to solicit registration data
from 24/7's networks of Web sites for inclusion in 24/7 Profilz.
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D. Prior to January 1, 2002, 24/7 Media will not, without NAVIANT's
written consent, provide any user registration data to Experian, Polk, or Axciom
and other data source providers that compete directly in a material manner with
NAVIANT's business of selling demographic records that identify Internet enabled
households. 24/7 and NAVIANT shall confer regularly during the Term and shall
each negotiate diligently and in good faith to minimize to the greatest extent
possible any sales conflicts between the parties, including conflicts with
24/7's Web sites.
7. Intellectual Property.
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A. 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. NAVIANT shall have no
rights, title or interest in the 24/7 Technology. All hardware, software,
programs, codes, trade names, technology, intellectual property, licenses,
patents, trademarks, copyrights, trade secrets, know-how, and processes
(collectively, the NAVIANT Technology") used by NAVIANT under this Agreement
shall remain the sole property of NAVIANT. 24/7 shall have no rights, title or
interest in the NAVIANT 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.
B. Upon termination or expiration of this Agreement, NAVIANT shall
retain ownership of the 24/7 Data File Records and 24/7 shall retain ownership
of the NAVIANT Data File Records, subject to the terms of each party's license
of such data from third parties.
8. Confidentiality. 24/7 and NAVIANT covenant to each other that neither
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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 such persons 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 in writing
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 in writing the other party 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 such persons are notified of the provisions of this Agreement and subject to
the confidentiality provisions herein; (iii) 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, provided that the written consent of the non-disclosing
party is obtained; and (iv) in a confidential disclosure made in connection with
a contemplated financing, merger, consolidation or sale of capital stock of 24/7
or NAVIANT, provided that the third parties receiving such information are
subject to the confidentiality provisions herein. Information which is or should
be reasonably understood to be confidential or proprietary includes, but is not
limited to, the NAVIANT Data File Records, the 24/7 Data File Records,
information about the 24/7 Network, sales, cost and other unpublished financial
information,
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product and business plans, projections, marketing data, and sponsors but shall
not include information (a) previously lawfully known to or independently
developed by a third party, (b) disclosed in publicly available materials, (c)
generally known to the public or (d) lawfully obtained from any third party.
This Section 7 shall survive the termination or expiration of this Agreement for
a period of three (3) years.
9. Term. The term of this Agreement (the "Term") shall commence on the date
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hereof and shall continue in effect until December 31, 2002. If a party
materially breaches a material provision of this Agreement, the other party may
terminate this Agreement upon thirty (30) days written notice unless the breach
is cured within the notice period.
10. 24/7 and NAVIANT agree not to employ or solicit for employment, directly
or indirectly, any of the other's employees during the term of this Agreement
and for a period of one (1) year after termination of this Agreement, including
all renewal periods.
11. Indemnification. NAVIANT shall defend, indemnify and hold harmless 24/7
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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) ("Claims") as and when
incurred, arising out of or based upon any act or omission or alleged act or
alleged omission by NAVIANT in connection with the acceptance of, or the
performance or non-performance by NAVIANT of, any of its duties under this
Agreement or arising from the breach by NAVIANT of its warranties,
representations or covenants contained in this Agreement. 24/7 shall defend,
indemnify and hold harmless NAVIANT, against and in respect of any and all
Claims 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.
12. Limitation of Liability. Neither party will be liable for any failure
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to perform any obligation hereunder, or from any delay in the performance
thereof, due to causes beyond its control, including industrial disputes of any
nature, acts of God, acts of any public enemy, acts of government, failure of
telecommunications, fire or other casualty. Under no circumstances will either
party, its affiliates or their respective officers, directors, employees be
liable for any incidental, special or consequential damages with respect to each
party's obligations under this Agreement, regardless of whether such damages
could have been foreseen or prevented.
13. Representations and Warranties.
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A. 24/7 represents and warrants to NAVIANT that (a) the execution,
delivery and performance by 24/7 of this Agreement do not and will not (i)
violate the organization documents of 24/7, (ii) violate any applicable law,
rule, regulation, judgment, injunction, order or decree, including, but not
limited to, privacy laws, or (iii) require any notice or consent or other action
by any person under, constitute a default under, or give rise to any right of
termination, cancellation or acceleration of any right or obligation of 24/7 or
to a loss of any benefit to which 24/7 is entitled under, any agreement or other
instrument binding upon 24/7 or any license, franchise, permit or other similar
authorization held by 24/7, and (b) all obligations
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owed to third parties with respect to 24/7's performance of its obligations
hereunder shall be fully paid by 24/7, so that NAVIANT shall not have any
obligations with respect thereto.
B. NAVIANT hereby represents and warrants to 24/7 that (a) the
execution, delivery and performance by NAVIANT of this Agreement does not and
will not (i) violate the organizational documents of NAVIANT, (ii) violate any
applicable law, rule, regulation, judgment, injunction, order or decree, or
(iii) require any notice or consent or other action by any person under,
constitute a default under, or give rise to any right of termination,
cancellation or acceleration of any right or obligation of NAVIANT or to a loss
of any benefit to which NAVIANT is entitled under, any agreement or other
instrument binding upon NAVIANT or any license, franchise, permit or other
similar authorization held by NAVIANT, and (b) all obligations owed to third
parties with respect to NAVIANT's performance of its obligations hereunder shall
be fully paid by NAVIANT, so that 24/7 shall not have any obligations with
respect thereto.
14. Publicity. Neither party will make or issue any public statement or
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announcement regarding the existence of this Agreement unless (a) it has
received the express written consent of the other party, which will not be
unreasonably withheld or (b) it is required to do so by law or regulation,
including the federal securities laws and any applicable rules and regulations
of any stock exchange or quotation system.
15. No Waiver. No provision of this Agreement shall be waived or modified
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except by a written consent to that effect signed by each of NAVIANT and 24/7.
16. Governing Law. This Agreement shall be governed by and construed in
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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.
17. Notices. All notices required or permitted to be given hereunder shall
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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
hereto at the addresses set forth in the preamble hereto. A notice shall be
deemed given when delivered personally, when the telecopied notice is
transmitted by the sender, one day after mailing by overnight courier, three
business days after mailing by certified first class mail, or on the delivery
date if successfully transmitted by electronic mail. Notice shall be given to
the addresses set forth in the first paragraph of this Agreement, and shall be
addressed to "Legal Department".
18. Assignment. Neither this Agreement, nor the license granted hereunder,
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may be assigned to any third party by operation of law or otherwise without the
express written consent of the other party, which may not be unreasonably
withheld. Notwithstanding the foregoing, if a successor in interest acquires
more than 51% of the assets of NAVIANT, it shall have the right to terminate all
exclusivity portions of this Agreement on six months' notice to 24/7, but not
prior to January 31, 2001. If a successor in interest acquires more than 51% of
the assets of 24/7, NAVIANT shall have the right to consent to such entity's
assumption of this agreement, such consent not to be unreasonably withheld. If
a successor in interest acquires more than 51% of the assets of NAVIANT, 24/7
shall have the right to consent to such entity's assumption of this Agreement,
such consent not to be unreasonably withheld.
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19. Entire Agreement. This Agreement constitutes the entire agreement and
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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.
20. Counterparts. This Agreement may be executed by facsimile in
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counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same document.
21. Acknowledgement and Consent. 24/7 and NAVIANT each hereby acknowledge
---------------------------
that IntelliQuest has assigned its rights and obligations under the Amended
Database License Agreement. NAVIANT, and 24/7 hereby consents to and approves
such assignment and 24/7 and NAVIANT agree that NAVIANT shall be entitled to all
of IntelliQuest's rights and subject to all of IntelliQuest's obligations
thereunder from and after the date hereof. This Agreement shall replace and
supersede the Original Agreement in its entirety.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
24/7 MEDIA, INC.
By:___________________________
Name:_________________________
Title:________________________
NAVIANT TECHNOLOGY SOLUTIONS, INC.
By:___________________________
Name:_________________________
Title:________________________
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Naviant
00 Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx Xxxxxx, XX 00000-0000
February 10, 2000
24/7 Media, Inc.
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xx. Xxxxx X. Xxxxx
Dear Xxxxx:
As you may know, Naivant, Inc. ("Naviant") proposes to enter into a strategic
relationship (the "Strategic Relationship") with Young & Rubicam Inc. ("Y&R").
One component of the Strategic Relationship is a license of certain portions osf
Naviant's proprietary database (the "Database") to Y&R for purposes of data
mining, analyticas and modeling by Y&R for its own behalf and on behalf of its
clients.
This letterserves to confirm our agreement that Naviant may include as part of
the Database licensed to Y&R the data fields licensed by 24/7 Media, Inc.
("24/7") to Naviant pursuant to that certain Database Development Agreement
dated September 7, 1999 between 24/7 and Naviant, (the "Agreement") provided,
that (i) Naviant and Y&R must represent and wrrant to 24/7 that the use and
distribution by Naviant Or Y&R of all 24/7 Data File Records (as defined in the
Agreement) shall comply fully with all of 24/7's policies relating to the
collection of electronic information, and use and distribution of such
information, in effect at the time of the collection, use or distribution of
such data fields; (ii) Naviant shall agree that the amount payable by Naviant
per 24/7 Data File Record under Section 5.C of the Agreement shall be increased
effective immediately to the lower of (a) ***** or (b) ***** higher than the
lowest fee at which 24/7 sells 24/7 Data File Records to any similarly situated
customer; and (iii) Y&R must agree that any data mining, analytics and/or
modeling results generated by Y&R using data of 24/7 origin shall be owned by
Y&R, but Naviant and 24/7 shall be granted a non-exclusive perpetual license in
such results.
If you believe the foregoing represents the understanding of Naviant and 24/7
regarding this matter, please indicate so by signing this letter agreement in
the space provided below.
Very truly yours,
NAVIANT, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Ph.D.
Title: President and Chief Executive Officer
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AGREED AND ACCEPTED:
24/7 MEDIA, INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: President and Chief Executive Officer
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