EXHIBIT 10.26
LYCOS NETWORK ADVERTISING CONTRACT
Terms and Conditions
1. GENERAL. A signed contract must be submitted to Lycos five days in
advance of initial publication date. By submitting advertising for
inclusion or a Lycos site, advertiser/agency agrees to be bound by
the terms of this contract. No conditions other than those set
further herein shall be binding on Lycos unless specifically agreed
to in writing by Lycos. Lycos will not be bound by conditions
printed or appearing on order blanks or copy instructions submitted
by or on behalf of the advertiser/agency. This contract supersedes
all terms and conditions on Lycos' rate cards and any previous
agreements between Lycos and advertiser/agency.
2. CHANGES AND CANCELLATIONS. All artwork must be received at least five
days in advance of publication date. Cancellations or copy changes will
not be accepted after the published closing date of the update to the
Lycos site. Changes to artwork must be received by Lycos at least five
days in advance of requested change date. Lycos' ad banner
specifications are accessible through the URL
xxxxxxxxxxx.xxxxx.xxx/xxxxx.xxxx; Lycos reserves the right to change any
of its ad banner specifications at any time. Any cancellations or change
orders must be made in writing and acknowledged by Lycos. Change orders
cannot be submitted any more frequently than once every fourteen days.
This contract may be canceled or changed by Lycos or advertiser/agency
on 30 days written notice to the other party. Lycos may immediately
terminate this contract if any change occurs in any applicable laws or
regulations that would, in Lycos' reasonable opinion, render Lycos'
performance hereunder illegal or otherwise subject to legal challenge.
3. PAYMENT. Unless otherwise agreed in writing, the first month's fees are
due upon the execution of this contract by the advertiser/agency and
thereafter, pro rata monthly in advance. If payment is not made timely,
Lycos at its option, may immediately terminate the contract. In
addition, advertiser/agency shall be liable to Lycos for all attorney's
fees and other costs of collection. Interest will accrue on any past due
amounts at the rate of one and one-half (1 1/2%) percent per month, but
not in excess of the lawful maximum. Lycos shall have the right to hold
the advertiser and/or its agency or agent jointly and severally liable
for all amounts due.
4. FREQUENCY AND DISCOUNTS. If Lycos fails to provide the guaranteed number
of impressions, Lycos will make good on this contract by providing
advertiser with additional impressions. Lycos will not make good for
under-delivery due to delays caused by advertiser/agency.
advertiser/agency understands that all frequency discounts are based on
the advertiser's/agency's commitment to fulfilling the frequency
indicated in the contract. If, for any reason, this frequency is not met
by the time of expiration or cancellation of the contract,
advertiser/agency agrees to pay a short rate charge on all ads run. This
charge will be equal to the difference between the rate shown in the
contract and the rate earned based on the applicable rate card for the
actual frequency completed.
5. GROWTH AND RENEWAL. (a) Per Impression Contracts. At the expiration of a
contract for a guaranteed number of impressions, provided the contract
is for a length of time 180 days or longer, advertiser/agency has the
right to enter into a then-standard Lycos Network Advertising Contract
for the same number of impressions for a second contract period
identical in duration to the first. The purchase price for a second
contract period will be determined by Lycos' then-current rate card.
(b) Exclusive Key Word/Phrase Contracts. The estimated number of
impressions and the per impression charge for a contract for the
exclusive right to a key word/phrase will be determined at the time the
contract is signed. Advertiser/agency agrees to pay, on a per impression
basis, for any increase in impressions (calculated on a monthly basis)
up to and including twice the number of impressions estimated at the
time the contract is signed. At the termination of a key word/phrase
contract, provided the contract is for a length of time 180 days or
longer, advertiser/agency has the right to enter into a then-standard
Lycos Network Advertising Contract for the same key word/phrase for a
second contract period identical in duration to the first. The purchase
price for the second contract period will be determined by Lycos'
then-current rate card. (c) Notice of Renewal. In order to exercise the
right to enter into a second contract, advertiser/agency must notify
Lycos in writing 30 days before the termination date of this contract
that the advertiser/agency is purchasing the same number of impressions
or the same exclusive keyword/phrase for the second contract period.
Failure to give timely notice will result in forfeiture of the right to
renew.
7. LICENSES AND INDEMNIFICATION. The advertiser/agency represents that the
advertiser is the owner or is licensed to use the entire contents and
subject matter contained in its advertising and collateral information,
including, without limitation, (a) the names and/or pictures of persons;
(b) any copyrighted material, trademarks, service marks, logos, and/or
depictions of trademarked or service marked goods or services; and (c)
any testimonials or endorsements contained in any advertisement
submitted to Lycos. In consideration of Lycos' acceptance of such
advertisements and information for publication, the advertiser and
agency will jointly and severally indemnify and hold Lycos harmless
against all loss, liability, damage and expenses of any nature (including
attorney's fees) arising out of Lycos' performance under this contract
or the copying, printing, distributing or publishing of
advertiser's/agency's advertisements. If advertiser possesses any
preexisting copyright interests in the advertisements, advertiser grants
Lycos the right to use, reproduce, and distribute the advertisements.
8. KEY WORDS AND PHRASES. Each advertiser may be given a "first right" to
its exact company name and trademarks for keyword/phrase advertising. Lycos
may pre-empt an existing key word/phrase advertiser by submitting a three-
month advertising contract. The existing contract-holder for the key
word/phrase will be provided with a two-week notification of preemption and
will receive a pro-rated refund for any unfulfilled number of guaranteed
impressions. If two or more advertisers have the same name or trademark,
the allocation will be on a first-come basis and the existing contract will
take precedence.
9. REJECTIONS. Lycos reserves the right, without liability, to reject, omit
or exclude any advertisement or to reject or terminate any links for any
reason at any time, with or without notice to the advertiser/agency, and
whether or not such advertisement or link was previously acknowledged,
accepted, or published.
10. LIMITATION OF LIABILITY. Lycos shall not be liable for any errors in
content or omissions. Should an error appear in an advertisement, Lycos'
liability will be limited to the cost of the advertisement (prorated for
the publishing completed). Lycos will not be liable for any delays in
delivery and/or non-delivery in the event of an act of God, action by
any government entity, transportation, strike, network difficulties,
electronic malfunction, etc., or any feasibility, reliability, or
effectiveness related to the Lycos site. Lycos does not represent or
warrant that the Lycos site will meet the objectives or needs of
advertiser/agency or any third party. In no event will Lycos be liable
for any failure, disruption, downtime, interruption, miscalculation,
delay, inaccuracy, or any other nonperformance related to the Lycos site.
UNDER NO CIRCUMSTANCES WILL LYCOS BE LIABLE FOR ANY SPECIAL, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION,
FOR LOST INCOME OR PROFITS, IN ANY WAY ARISING OUT OF OR RELATED TO
THIS AGREEMENT, EVEN IF LYCOS HAS BEEN ADVISED AS TO THE POSSIBILITY
OF SUCH DAMAGES.
11. CHOICE OF LAW AND FORUM. This contract shall be interpreted and
construed in accordance with the laws of the Commonwealth of
Massachusetts, without regard to its conflicts of laws provision, and
with the same force and effect as if fully executed and performed
therein. Each party hereby consents to the personal jurisdiction of the
Commonwealth of Massachusetts, acknowledges that venue is proper in any
stat or Federal court in the Commonwealth or any objection that may
exist, now or in the future, with respect to any of the foregoing.
12. CREDIT CARDS. In the event that advertiser/agency pays any amounts due
hereunder with a credit card and the issuer of the credit card fails to
pay the amounts authorized by advertiser/agency, advertiser/agency shall
immediately remit full payment to Lycos plus any interest due on the
outstanding amounts. In addition, if advertiser/agency pays any amounts
due hereunder with a credit card and the issuer of the credit card seeks
to recover from Lycos any amounts received by Lycos from the issuer,
advertiser/agency shall immediately remit to Lycos all amounts necessary
to comply with the issuer's request and any costs and expenses incurred
by Lycos.
13. MISCELLANEOUS. No public statements concerning the existence or terms
of this contract will be made or released to any medium except with the
prior approval of both parties or as required by law. This contract
cannot be sold, assigned or transferred by advertiser/agency to any
party. If any portion of the contact is found unenforceable for any
reason, the remainder will remain in full force and effect. No waiver by
Lycos shall operate as a waiver of any other provision or any subsequent
default. This document represents the entire agreement of the parties;
Lycos will not be bound by the representations of any agents, brokers,
or other third parties. Any modifications must be in writing and signed
by an authorized representative of Lycos.
The undersigned is legally empowered with due corporate authority to enter
into this Contract and agrees to be bound by the Terms and Conditions of this
contract.
Advertiser or Agent Lycos, Inc.
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Signature: /s/ Chief Financial Officer /s/
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Date: 5/5/99 5/5/99
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Addendum: Payment divided into 12 equal monthly payments beginning June 1,
1999 - net 30.
