AD 2-ONE
AD 2-ONE REPRESENTATION AGREEMENT
(1) AD 2-ONE a company registered in England and Wales under registered
number 4077801 having its registered office at 00 Xxxxx Xxxxxx, X0X0XX
("ad 2-one").
(2) HIGHTV, a company incorporated under registration number _____ the
registered office of which is at Narrowstep, 00 Xxx Xxxxxxxxx Xx Xxxxxx
X0X 0XX (the "Publisher").
THE PARTIES AGREE AS FOLLOWS:
1. APPOINTMENT: The Publisher appoints ad 2-one to be its exclusive
representative to perform the Services in respect of the Web Sites in
the Territory throughout the Term. (The terms "Services", "Web Sites"
and "Territory" shall have the meanings set out in Schedule 1).
2. TERM: This Agreement shall come into force on the date on which it is
countersigned by as 2-one and, unless terminated earlier in accordance
with Clause 10 below, shall continue in force for a period of one year
and shall continue thereafter unless and until terminated by either
party giving the other not less than three months prior written notice
at any time (the "Term").
3. EXCLUSIVITY: The Publisher shall not, during the Term, appoint a third
party to perform any of the Services for it. The Publisher will be able
to perform any of the Services itself with direct and core advertisers.
ad 2-one will sell advertising to agencies on an exclusive basis.
4. PUBLISHER'S OBLIGATIONS: The Publisher shall (a) operate the Web Site(s)
in accordance with all applicable laws and regulations; (b) use its
reasonable endeavors to develop the Web Site(s) and to maximise the
number of users of and use of the Web Site(s); (c) provide ad 2-one
regularly with any information and/or documentation about the Web
Site(s) or itself which will assist ad 2-one in performing the Services
and promptly inform ad 2-one of any circumstances of which it becomes
aware which could have an material adverse effect on ad 2-one's ability
to perform the Services; (d) use all tools provided by ad 2-one to
monitor use of the Web Site(s).
5. AD 2-ONE'S OBLIGATIONS: ad 2-one shall; (a) provide the Services with
reasonable skill and care and in accordance with all applicable laws and
regulations; and (b) keep the Publisher informed on a monthly basis of
the progress of the work it had undertaken in connection with the
Services.
6. INVOICING OF ADVERTISERS: ad 2-one shall be entitled to invoice and
collect all sums payable in respect of the Services together with any
VAT or other applicable sales taxes and duties thereon.
7. PAYMENTS: ad 2-one shall be entitled to receive commission and fees in
consideration of its performance of the Services at the tariffs set in
Schedule 2 together with any VAT or
other applicable sales tax or duty chargeable thereon. ad 2-one shall be
entitled to deduct the sums due to it hereunder from the sums it
receives from advertisers and others before paying the balance of such
sums to the Publishers within 30 days of receipt of the same by ad
2-one. ad 2-one shall provide the Publisher with an invoice for the sums
deducted by it.
8. BOOKS AND RECORDS: ad 2-one shall maintain books of account in respect
of the Services. The Publisher shall be entitled at its own cost to
review such books of account once in every twelve-month period.
9. PERFORMANCE REVIEWS: The parties shall meet to review the performance of
this Agreement once every six months, based on the revenue projection
agreed.
10. TERMINATION: Either party shall have the right to terminate this
Agreement upon 90 days prior written notice to the other if the other
fails to successfully complete the Performance Review in Clause 9.
Either party shall have the right to terminate this Agreement
immediately upon notice in writing to the other if: (a) the other party
commits a material breach of this Agreement which is not capable of
being remedied or, if capable of being remedied, is not remedied within
30 days of a request to do so; (b) the other party is prevented from
performing any of its material obligations pursuant to this Agreement as
a consequence of circumstances beyond its reasonable control for more
than 90 days; or (c) the other party becomes insolvent or unable to pay
its debts as they fall due or becomes subject to, or itself takes any
steps to invoke, any law, proceedings, procedure or third party action
preliminary or relating to its insolvency, winding-up, liquidation,
administration or receivership (or any analogous proceedings in any
jurisdiction) or any enforcement of any security against it, or to a
rescheduling, composition or arrangement in respect of any of its debts.
ad 2-one may terminate this Agreement immediately by written notice to
the Publisher if any event shall occur or circumstance shall arise in
relation to the Publisher which is likely to have a material adverse
effect on ad 2-one's or the Publisher's ability to perform any of their
obligations under this Agreement (whether immediately or at a future
time).
11. CONSEQUENCES OF TERMINATION: Termination of this Agreement shall not
affect any accrued rights or liabilities of either party or any
provision of this Agreement intended to come into or continue in force
on or after such termination. Following the termination of this
Agreement, the Publisher shall implement any orders secured and/or
agreements entered into by ad 2-one as part of the Services prior to the
date of termination and ad 2-one shall be entitled to receive commission
and fees in respect of those orders and agreements.
12. LIMITATION OF LIABILITY: Neither party will be liable to the other under
this Agreement in contract, tort or otherwise (including any liability
for any negligent act or omission) for any indirect or consequential
losses including but not limited to loss of revenue, anticipated savings
profits or wasted expenditure. Neither party shall be liable to the
other for any loss, damage, costs, expenses or other claims for
compensation arising as a direct or indirect result of breach or
non-performance of this Agreement due to circumstances beyond its
reasonable control. ad 2-one's aggregate liability in contract,
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tort, or otherwise (including negligence) arising out of or in
connection with this Agreement or the performance or non-observance of
its obligations hereunder in any calendar year (or part thereof) shall
be limited to the sums received by as 2-one for the Services in that
calendar year. Nothing in this Agreement will limit or exclude either
party's liability for death or personal injury arising from its own
negligence.
13. CONFIDENTIALITY: Each party undertakes to the other that it will not
divulge to any third party the terms of this Agreement or any
information of a confidential nature disclosed to it by the other party
and will use such information solely for the purpose of performing its
obligations under this Agreement provided that: (a) ad 2-one shall be
entitled to disclose the terms of this Agreement as required to perform
the Services; and (b) the obligation to keep information confidential
will not apply: (i) to the extent that disclosure of such information is
required by law or by any appropriate regulatory body; (ii) to any
information that is already in the public domain, other than as a result
of a breach of this obligation of confidentiality; (iii) to any
information that the receiving party can prove was already in its
possession at the time it is disclosed to it by the other party.
14. NOTICES: Any notice to be given by either party pursuant to this
Agreement shall be in writing.
15. GENERAL: (a) This Agreement constitutes the entire agreement between the
parties in relation to its subject matter and replaces and extinguishes
all prior agreements between the parties and all prior representations,
whether written or oral, made by either party with respect to such
subject matter provided that nothing in this Agreement shall operate to
limit or exclude liability for fraud or fraudulent misrepresentation;
(b) if any part, term or provision of this Agreement, not being of a
fundamental nature, be held illegal, invalid or unenforceable, such
part, term or provision shall be deemed deleted from this Agreement and
the remaining terms of the Agreement shall not be affected; (c) no
variation of this Agreement shall be effective unless in writing and
signed by or on behalf of a duly authorized representative of each
party; (d) ad 2-one shall be entitled to assign all or part of its
rights and obligations under this Agreement to any company which is a
holding company of ad 2-one, a subsidiary of ad 2-one or a subsidiary of
a holding company of ad 2-one ("subsidiary" and "holding company" having
the meanings set out in Sections 736 and 736A of the Companies Act 1985)
and to any purchaser of the whole or of the part of its business that
has responsibility for this Agreement. The Publisher, shall if so
required by ad 2-one procure that any purchaser of its business or of
the Web Site(s) agrees to be bound by the terms of this Agreement as if
it were the Publisher. Save for the foregoing neither party shall assign
or transfer all or any part of its rights under this Agreement without
the written consent of the other party; and (e) the failure by either
party to exercise or enforce any right conferred by this Agreement shall
not be deemed to be a waiver of any such right nor operate as to bar the
exercise or enforcement thereof of any other right on any other
occasion. Both Parties agree to contract in good faith and following
good business practices.
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16. GOVERNING LAW AND JURISDICTION: This Agreement is governed by the law of
England and Wales and the parties agree to submit disputes arising out
of or in connection with this Agreement to the non-exclusive
jurisdiction of the English Courts.
SIGNED for and on behalf of SIGNED for and on behalf of
AD-2ONE HIGHTV
Name: /s/ Julian Mile Name: /s/ Iolo Xxxxx
Date: 4/6/03 Date: 4/6/03
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The Web Site(s), the Services and the Territory
PART ONE
FThe Web Site(s): Any websites that are made available to ad 2-one by HighTV,
including:
xxx.xxxx.xx
The Territory: UK
PART TWO
The Services
1. Sale of Advertising:
(a) ad 2-one shall use its reasonable endeavours to procure Advertising for
the Web Site(s). For these purposes Advertising shall mean banners,
buttons and any other commercial opportunities THE PUBLISHER will allow.
(b) All campaigns sold by ad2-one are subject to approval by HighTV.
(c) ad 2-one shall:
(i) develop an advertising strategy for the Web Site(s) in
consultation with the Publisher;
(ii) determine the price and terms on which Advertising will be sold;
(iii) negotiate and conclude contracts for the sale of Advertising;
and
(iv) manage and administer the relationship and all communications
with advertisers and potential advertisers.
SCHEDULE 2
Commission and Fees
1. ad2-one shall be entitled to a commission of 35% of the amounts it
invoices to Advertisers less the commission due to any media buyer
retained by ad 2-one and less VAT or other applicable sales taxes.
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