24/7 MEDIA INC.
NETWORK AFFILIATION
AGREEMENT
WHEREAS, the undersigned (hereinafter the "Network Affiliate") is the
operator and owner of the Internet Web site(s) (the "Web Site") specified on the
signature pages hereto;
WHEREAS, 24/7 Media, Inc. ("24/7"), a Delaware corporation with an
address at 0000 Xxxxxxxx, 00xx xxxxx, Xxx Xxxx, XX 00000, operates a network of
Internet Web sites (the "24/7 Network") for which it solicits advertisers,
advertising agencies, buying services or others ("Advertisers") regarding the
placement of advertising banners and similar devices and sponsorships
("Advertising") for display on pages, screens, and other segments or spaces on
Web site reasonably suitable for the display of advertising and to which the
Tags (as defined in Section 2(A) below) can be affixed as provided herein (the
"Pages");
WHEREAS, Network Affiliate and 24/7 wish to include the Web Site in the
24/7 Network;
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. AFFILIATION.
The Network Affiliate hereby grants to 24/7 the worldwide exclusive
right to sell all Advertising on the Web Site.
2. OBLIGATIONS OF 24/7.
In furtherance of the foregoing, 24/7 covenants and agrees:
A. to provide the Network Affiliate, during the term of this
Agreement (the "Term") and only for use in the performance of this Agreement,
with unique tags in HTML/Java or other appropriate languages (the "Tags")
which shall be affixed appropriately by Network Affiliate to the Web Site's
Pages to enable 24/7 to serve Advertising to those Pages;
B. to utilize its best efforts to sell to Advertisers Advertising
on the Web Site's Pages, (including sales of the Web Site as a single site,
through multi-site packages and through the 24/7 Network package, at such
prices as 24/7 shall deem appropriate);
C. to serve Advertising to the Web Site's Pages;
D. to provide the Network Affiliate with notice, via on-line
posting, of new Advertising that has been solicited by 24/7 to be displayed
on the Web Site's Pages, and to use its best efforts to honor any decision by
Network Affiliate to decline any Advertising, in accordance with the
provisions in 3(D) below;
E. to provide the Network Affiliate with real-time access to
records that will allow it to monitor the volume of paid Advertising
delivered to the Web Site's Pages and the revenue produced
(subject to billing corrections and adjustments) thereby; all such records,
including data, statistical information or other traffic analysis, produced
or provided by 24/7 shall be the joint property of 24/7 and Network Affiliate;
F. to deliver to the Network Affiliate a monthly statement showing
revenues earned by Network Affiliate during the calendar month and any sum(s)
due the Network Affiliate on account thereof pursuant to Section 4 hereof; and
G. to maintain suitable and qualified personnel in administrative,
sales and technical positions necessary for 24/7 to perform effectively the
terms of this Agreement.
3. OBLIGATIONS OF NETWORK AFFILIATE.
The Network Affiliate covenants and agrees:
A. to use its best efforts to continue and maintain the Web Site
and the Web Site's Pages in a manner consistent with the intent and purpose
of the Web Site;
B. to insert the Tags on each of the Web Site's Pages and only on
such Pages in such a manner as to assure that the Advertising to be affixed
to said Tag is fully and clearly visible on the first Web Site Page viewed
when that Page is viewed at a 640 x 480 pixel resolution;
C. to insert a button with the 24/7 logo on the Web Site's Home
Page directing potential advertisers to the 24/7 web site.
D. to notify 24/7 within one business day from the time of notice
of any new Advertising is given of the Network Affiliate's rejection of any
new Advertising. Failure to provide timely notice of rejection of the new
Advertising shall be deemed acceptance thereof, until such time as Network
Affiliate notifies 24/7 of Network Affiliate's rejection thereof at which
time 24/7 will use its best efforts to remove the Advertising;
E. to furnish 24/7 with all subscribership, viewership, inventory,
and usage reports, reviews and audience studies, deliveries, census
requirements, and any other information regarding the Web Site and the Web
Site's Pages as is reasonably available to the Network Affiliate and
appropriate for use by 24/7 for the sale of Advertising; and
F. not to engage, contract with, license or permit any person, firm
or entity (including the Network Affiliate and its employees) other than 24/7
and its employees to sell, or represent the Network Affiliate for the sale
of, Advertising on the Web Site and to refer all advertising inquiries to
24/7.
4. PAYMENTS.
A. Advertisers shall be directed to pay all cash and other
consideration generated from the sale of Advertising by 24/7 during the term
of this Agreement and for a period of six months following the termination of
this Agreement (except for sponsorships, with respect to which payments shall
be made to 24/7 and a percentage shall be retained by 24/7 for the duration
of the sponsorship regardless of the date of termination of this Agreement).
Within 45 days after the end of each calendar month, 24/7 shall pay to the
Network Affiliate the Network Affiliate's entire share of
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all revenue generated during that month, reduced only by any advertising
agency commissions retained by the agency or paid by 24/7, and by 24/7's
commission for the sale of Advertising which shall be determined in
accordance with the following chart:
---------------------------------------- --------------------------------------
Number of Impressions Delivered in Percentage Retained by 24/7 for
Preceding Month Current Month
---------------------------------------- --------------------------------------
999,999 to 1,999,999 55%
---------------------------------------- --------------------------------------
2,000,000 to 2,999,999 50%
---------------------------------------- --------------------------------------
3,000,000 to 4,999,999 45%
---------------------------------------- --------------------------------------
5,000,000 to 14,999,999 40%
---------------------------------------- --------------------------------------
15,000,000+ 35%
---------------------------------------- --------------------------------------
Network Affiliate represents and warrants that the number of impressions
served in the month preceding the Effective Date was ______________, and
thus, subject to verification of monthly ad impressions, the initial
percentage to be retained by 24/7 is _____%. The percentage retained by 24/7
shall be lowered effective upon Network Affiliate's notifying 24/7 that the
number of impressions delivered in the preceding month requires the
percentage retain to be adjusted.
B. The Network Affiliate may elect to have 24/7 serve promotional
or barter advertisements not sold by 24/7, for which Network Affiliate will
pay 24/7 a serving fee of $2.50 cost per thousand ("CPM"); such promotional
and barter advertisements shall not exceed thirty percent (30%) of the Pages.
C. In the event any Advertiser remits any payment for Advertising
sold by 24/7 directly to the Network Affiliate rather than to 24/7, the
Network Affiliate agrees to make prompt payment to 24/7 of any and all such
payments.
D. Network Affiliate will be obligated to compensate 24/7 on any
business contracted by 24/7 Media prior to termination date.
E. Network Affiliate acknowledges that 24/7 has an ownership
interest in the "xxxxxxxxxx.xxx" e-commerce service (the "Service") and that
the Service includes the placement of banners on the 24/7 Network, generally
on a "cost per transaction" basis and on terms no more favorable to
xxxxxxxxxx.xxx than would be made available to a party not affiliated with
24/7.
F. Network Affiliate also acknowledges that 24/7 owns and operates
the Profilz database of demographic profiles (the "Database "). Network
Affiliates understands and agrees that the Payment in respect of Advertising
sold that employs the Database shall be calculated by subtracting from gross
revenue a fee for use of the Database, which fee shall be disclosed to
Network Affiliate prior to implementation and shall reasonably reflect 24/7's
cost of developing and operating the Database. Network Affiliate shall have
the option not to accept Advertising that employs the Database.
5. INTELLECTUAL PROPERTY. 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. Network Affiliate shall have no rights, title or interest in the
24/7 Technology. All hardware, software, programs, codes, trade names,
technology, intellectual property, licenses,
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patents, trademarks, copyrights, trade secrets, know-how, and processes
(collectively, the "Network Affiliate Technology") used by Network Affiliate
under this Agreement shall remain the sole property of Network Affiliate.
24/7 shall have no rights, title or interest in the Network Affiliate
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.
6. CONFIDENTIALITY. 24/7 and Network Affiliate covenant to each other that
neither 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 they 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 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 the others 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 they are notified of the provisions of this
Agreement; (iii) in order to enforce its rights pursuant to this Agreement;
(iv) 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; and (v) in a
confidential disclosure made in connection with a contemplated financing,
merger, consolidation or sale of capital stock of 24/7 or the Network
Affiliate. Information which is or should be reasonably understood to be
confidential or proprietary includes, but is not limited to, information
about the 24/7 Network, sales, cost and other unpublished financial
information, product and business plans, projections, marketing data, and
sponsors but shall not include information (a) already lawfully known to or
independently developed by a party, (b) disclosed in published materials, (c)
generally known to the public, (d) lawfully obtained from any third party or
(e) required to be disclosed by law.
7. TERM.
A. The term of this Agreement (the "Term") shall commence on the
Effective Date and shall continue for at least one year from the Effective
Date. Either party may terminate the Agreement by giving notice no earlier
than eight months after the Effective Date. Termination will be effective
four (4) months after the date on which written notice is given, as
determined under the provisions of Section 13 below, to the other party.
B. Notwithstanding Section A. above, this Agreement may be
terminated by either party on 60 days' prior written notice to the other
party upon the occurrence of a material breach by the other party of any
covenant, duty or undertaking herein, which material breach continues without
cure for a period of 30 days after written notice of such breach from the
non-breaching party to the breaching party.
C. Notwithstanding Section A. or B. above, this Agreement may be
terminated by 24/7 on written notice to the Network Affiliate upon the
occurrence of a material breach by Network Affiliate of its covenants under
Section 8 of this Agreement, which material breach continues without cure for
a period of more than 48 hours after written notice of such breach from 24/7
to Network Affiliate of such breach, or which material breach occurs on more
than two occasions.
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D. Notwithstanding Section A. or B. above, this Agreement may be
terminated by 24/7 on 30 days' prior written notice to the Network Affiliate
if the number of Pages in any three consecutive months is less than one
million or if the average click through rate for any three-month period is
less than 0.25%.
8. CONTENT OF WEB SITE. Network Affiliate covenants and agrees not to include
or provide via the Web Site or the Web Site's Pages any material that is or
may be considered: (i) libelous, pornographic, obscene, or defamatory under
any federal or state law; (ii) an infringement of any third party's
intellectual property rights (including copyright, patent, trademark, trade
secret or other proprietary rights); or (iii) an infringement on any third
party's rights of publicity or privacy. Network Affiliate further covenants
and agrees, with respect to the operation of its Web Site and its Pages, to
comply with all laws, statutes, ordinances, and regulations.
9. INDEMNIFICATION. Network Affiliate shall indemnify and hold harmless 24/7,
its advertisers and other suppliers and any related third parties, against
and in respect of any and all third party 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) as and when incurred,
arising out of or based upon any act or omission or alleged act or alleged
omission by Network Affiliate in connection with the acceptance of, or the
performance or non-performance by Network Affiliate of, any of its duties
under this Agreement or arising from the breach by Network Affiliate of its
warranties, representations or covenants contained in this Agreement. 24/7
shall indemnify and hold harmless the Network Affiliate, against and in
respect of any and all third party 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 Network Affiliate) 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.
10. NO POACHING. Network Affiliate agrees that, during the Term and for a
period of one year from the end of the Term, neither it nor its affiliates
will solicit or recruit the services of any 24/7 employees, or hire any such
employees.
11. NO WAIVER. This Agreement shall not be waived, modified, assigned or
transferred except by a written consent to that effect signed by Network
Affiliate and 24/7. Network Affiliate agrees that if it assigns or transfers
this Agreement, it shall cause such successor, assignee, or transferee to
assume all of the Network Affiliate's obligations hereunder. Any assignment,
transfer, or assumption shall not relieve the Network Affiliate of liability
hereunder.
12. GOVERNING LAW. This Agreement shall be governed by and construed in
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.
13. NOTICES. All notices required or permitted to be given hereunder shall 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
or parties hereto at the address(es) set forth below. A notice shall be
deemed given when delivered personally, when the telecopied notice is
transmitted by the sender,
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three business days after mailing by certified first class mail, or on the
delivery date if delivered by electronic mail.
14. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
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.
15. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which together shall constitute
one and the same document.
16. FORCE MAJEURE. Neither party shall be held liable or responsible to the
other party nor be deemed to have defaulted under or breached this Agreement
for failure or delay in fulfilling or performing any term of this Agreement
when such failure or delay is caused by or results from causes beyond the
reasonable control of the affected party, including but not limited to fire,
floods, failure of communications systems or networks, embargoes, war, acts
of war (whether war is declared or not), insurrections, riots, civil
commotion, strikes, lockouts or other labor disturbances, acts of God or
acts, omissions or delays in acting by any governmental authority or the
other party; provided, however, that the party so affected shall use
reasonable commercial efforts to avoid or remove such causes of
nonperformance, and shall continue performance hereunder with reasonable
dispatch whenever such causes are removed. Either party shall provide the
other party with prompt written notice of any delay or failure to perform
that occurs by reason of force majeure. The parties shall mutually seek a
resolution of the delay or the failure to perform as noted above.
17. SEVERABILITY. Should one or more provisions of this Agreement be or
become invalid, the parties hereto shall substitute, by mutual consent, valid
provisions for such invalid provisions which valid provisions in their
economic effect are sufficiently similar to the invalid provisions that it
can be reasonably assumed that the parties would have entered into this
Agreement with such valid provisions. In case such valid provisions cannot be
agreed upon, the invalidity of one or several provisions of this Agreement
shall not affect the validity of this Agreement as a whole, unless the
invalid provisions are of such essential importance to this Agreement that it
is to be reasonably assumed that the parties would not have entered into this
Agreement without the invalid provisions.
18. DISPUTE RESOLUTION. Any controversy or claim arising out of or relating
to the Agreement, or the breach thereof, shall be settled exclusively by
arbitration. Such arbitration shall be conducted before a single arbitrator
in accordance with the Commercial Arbitration Rules of the American
Arbitration Association then in effect. If arbitration is commenced by 24/7,
it shall take place in the city in the continental United States in which the
principal U.S.A. corporate offices of Network Affiliate are located. If
Network Affiliate has no corporate offices in the U.S.A. or if arbitration is
commenced by Network Affiliate, then arbitration shall take place in New
York, New York. Judgment may be entered on the arbitrator's award in any
court having jurisdiction, and the parties irrevocably consent to the
jurisdiction of such courts for that purpose. The parties waive personal
service in connection with any such arbitration; any process or other papers
under this provision may be served outside the home state of Network
Affiliate or New York by registered mail, return receipt requested, or by
personal service, provided a reasonable time for appearance or response is
allowed. All decisions of the arbitrator shall be final and binding on the
parties. The parties shall equally divide all costs of the American
Arbitration Association and the arbitrator. Each party shall bear its own
legal fees in any dispute. The arbitrator may grant injunctive or other
relief.
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19. INDEPENDENT CONTRACTORS. 24/7 Media and Network Affiliate shall each act
as independent contractors. Neither party shall exercise control over the
activities and operations of the other party. 24/7 Media and Network
Affiliate shall each conduct all of its business in its own name and as it
deems fit, provided it is not in derogation of the other's interests. Neither
party shall engage in any conduct inconsistent with its status as an
independent contractor, have authority to bind the other with respect to any
agreement or other commitment with any third party, nor enter into any
commitment on behalf of the other, except as expressly provided for by this
Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement this
28th day of May, 1999 (the "Effective Date").
27/4 MEDIA, INC.
By: (illegible)
------------------------------------------------
Name:
Title: VP Bus Dev
E-mail address: xxxxxx@000xxxxx.xxx
------------------------------------
NETWORK AFFILIATE:
Name of Web Site: iChargeit
-----------------------------------
Web Site URL: xxx.xXxxxxxxx.xxx
---------------------------------------
Corporate Name of Web Site owner: iChargeit Inc.
-------------------
Address: 000 Xxxxxxx Xxxxx Xxxxxxx
--------------------------------------------
Address: Xxxxxxxxxx Xxxxx, XX 00000
--------------------------------------------
By: /s/ Xxxxx Xxxxx
-------------------------------------------------
Name: Xxxxx Xxxxx
Title: CEO
E-mail address: xxxxxxxxx@xxxxxxxxx.xxx
-------------------------------------
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