ADVERTISING SALES AGENCY AGREEMENT
This Agency Agreement dated January 1, 1999 ("Effective Date") by and between:
Latitude 90, Inc. a corporation with principal offices at 0000 Xxxx
Xxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxxxx, XX 00000 ("Agent"); and
Xxxx Atlantic Electronic Commerce Services, Inc., a corporation with an
office at 00 Xxxxxxx Xxxx, Xxxxxxxxx, XX 00000 ("BAECS").
NOW, THEREFORE, the parties agree as follows:
1. APPOINTMENT
1.1. BAECS appoints Agent as a non-exclusive agent to provide sales
representation and consultation for the sale of advertising as defined in
Attachment A ("Advertising") to be placed on BAECS's Big Yellow website
located on the World Wide Web at xxxx://xxx.xxxxxxxxx.xxx or related
sites ("BAECS Sites").
1.2. Agent agrees to accept such appointment.
2. AGENT'S RESPONSIBILITIES
2.1. Agent will highlight BAECS in its media kit and websites as one of its
Premium Website Partners including detailed information in both its
"Website" and "Beyond the Banner" sections.
2.2. Agent will also provide BAECS with the opportunity to participate in its
co-op advertising campaign, which is designed to stimulate additional
Advertising revenue. This campaign will use direct mail, electronic mail
and print advertising to build the brand awareness of Agent's Premium
Partners as well as well specific marketing programs such as BAECS's "Hot
Commerce".
2.3. Agent's sale executives will work with BAECS's sales, marketing and
business development departments to orchestrate programs that increase
the overall effectiveness of programs and revenue stream of BAECS.
2.4. Agent will use its reasonable and diligent efforts to market and sell
Advertising as set forth in this Agreement.
2.5. Agent will use only those promotional materials provided or approved in
advance by BAECS, will document all sales using only Insertion Orders,
contracts and applications and materials provided by BAECS, and will
market Advertising in a manner consistent with the law and with BAECS
standards, including those BAECS specifies as necessary to protect
trademarks or trade names.
2.6. Agent will make only such representations concerning any BAECS Sites as
have been approved by BAECS. Agent will notify BAECS immediately upon
notice to it of any cancellation of any Insertion Order.
2.7. Agent will obtain from the customer signed Insertion Orders, contracts
and applications for Advertising and shall submit them to BAECS as
required by BAECS.
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2.8. Agent will cooperate fully with BAECS in resolving any customer
complaints. At BAECS's request, Agent will represent BAECS's interest
taking into consideration the interests of the customer in negotiating
adjustments of customer's accounts and claims involving BAECS's alleged
errors and omissions. BAECS will have the right, in its sole discretion,
(i) to approve or disapprove any adjustment or other arrangement proposed
by Agent unless such adjustment or other arrangement is made at Agent's
sole expense, and (ii) to make any customer account adjustment it deems
appropriate.
2.9. Agent will perform its obligations under this Agreement, including
creative design, in accordance with the highest industry standards and to
BAECS's reasonable satisfaction.
2.10. Agent will cooperate fully in the collection, compilation and maintenance
of date required to be reported by BAECS pursuant to any federal or state
statute, regulation or order.
2.11. Agent will perform other functions reasonable requested by BAECS. If
Agent incurs any material additional expenses in the performance of
additionally requested functions, then performance will be determined by
mutual agreement of BAECS and Agent.
2.12. Agent may, at its option and neither pursuant to this Agreement nor as
agent to BAECS, provide creative design assistance to customers in order
to develop more effective campaigns. Such design assistance shall be by
separate agreement between Agent and the customer, and under separate
charges. Agent shall not represent that BAECS is a party to such design
work or that such design work is provided pursuant to customer's
Agreement or Insertion Order with BAECS, and BAECS shall not be liable in
any manner for any such design assistance provided by Agent. Agent is
responsible for all billing and collection of charges for design fees.
3. BAECS RIGHTS AND RESPONSIBILITIES
3.1. BAECS will, at its sole discretion allocate appropriate budgets to
develop sales and promotional material for general media kit purposes and
for special programs for Advertising.
3.2. Each month Agent and BAECS will conduct joint account management planning
to discuss and coordinate sales calls and business partnering
initiatives.
3.3. Agent will promptly forward its recommendations and requests regarding
Advertising to BAECS. BAECS will respond within two (2) business days of
the request with a go/no go on the recommendation. It is the
responsibility of Agent to define not only the revenue opportunity and
any technical requirements that the opportunity is contingent upon.
3.4. BAECS at its discretion will provide Agent with the necessary sales and
marketing resources to support new Advertising recommendations and
demonstrations.
3.5. BAECS agrees to provide such promotional literature and contractual
documentation to Agent, as BAECS deems appropriate. BAECS further agrees
to keep Agent informed of any regulatory, product or business changes
that will impact Agent's performance under this Agreement, and to change
materials as necessary.
3.6. BAECS will perform all billing and collection functions for the
Advertising sold by Agent under this Agreement. Early payment discounts,
if any, will not effect Agent's commission. For quality control and
customer service reasons, BAECS may contact any existing customer at any
time. Before contacting any existing customer for sales and marketing for
Advertising, BAECS shall
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contact Agent to assist in joint marketing activities. Should Agent
choose to participate in such joint marketing activities, any Advertising
sales resulting from such joint marketing efforts shall be deemed to be
eligible for compensation under this Agreement.
3.7. By the twelfth calendar day of each month, BAECS will provide Agent with
a tracking report that lists total number of page views and estimated
visitors for the site as well as total page views by each section listed
on the Navigational Bars of the BAECS Sites. BAECS will use reasonable
efforts to deliver tracking reports by close of business each Monday.
3.8. On a weekly basis, BAECS will provide weekly tracking reports to Agent
that list daily impressions and click-throughs for each Advertising
creative that ran in the prior week. For all banner advertisements that
Agent serves for BAECS, it will provide an online weekly tracking report
that also provides banner impressions and click-throughs (by banner) for
each Advertisement that ran in the prior calendar week.
4. ACCEPTANCE OF ORDERS; COMPENSATION; REVENUE OBJECTIVES
4.1. Agent will submit separate Insertion Orders, contracts and applications
for Advertising, which BAECS may accept or reject at its sole discretion.
Agent is not authorized to accept, approve, execute on behalf of BAECS or
amend any Insertion Order or Application for Advertising and will take no
action or make any representation to the contrary to any person. No
Insertion Orders, contracts and applications for the sale of any
Advertising will be binding on BAECS unless accepted by BAECS by
publication pursuant to such Order. BAECS may delete any Advertising from
the BAECS Sites at any time for any reason.
4.2. In full compensation for the services performed under this Agreement
BAECS agrees to pay Agent commissions as described in Attachment B. Agent
will pay all expenses it incurs in performing services under this
Agreement. BAECS has the right to set off against any payment due Agent
under this Agreement any amounts owed to it by Agent under this Agreement
or under any other agreement.
4.3. BAECS reserves the right to change the Commission Rates for any renewal
Term effective at the beginning of the renewal Term upon thirty (30) days
prior written notice.
4.4. If customers are represented by advertising agencies or if Agent
subcontracts any of its responsibilities in accordance with Section 12,
Agent will be solely responsible for paying any compensation to the
agencies and subcontractors without recourse to BAECS.
4.5. BAECS will pay commissions due to Agent on a monthly basis within forty-
five days of the end of the particular month, based on applicable amounts
collected by BAECS. BAECS will provide Agent with a monthly statement
listing all sales of Advertising and for which Agent is being paid, as
well as al outstanding accounts that are due an payable, including
Insertion Order numbers.
4.6. Agent will assist BAECS in collecting all past due bills, as requested by
BAECS.
4.7. To avoid duplication of efforts, Agent and BAECS will coordinate on a
monthly basis with regard to all accounts that are being pursued by each
party in connection with this Agreement.
5. TERM; TERMINATION; AGENT'S DEFAULTS
5.1. This Agreement will remain in effect for one year after the Effective
Date ("Term"). The Term xxxx
Xxxx 3
be automatically renewed for successive one-year periods unless
terminated by either party as provided below.
5.2. BAECS may terminate this Agreement immediately upon written notice under
the following circumstances: (i) in response to regulatory or legal
actions or concerns; and (ii) for cause. "For cause" means: (a) failure
to perform or other breach of any of Agent's obligations, representations
or warranties under this Agreement, provided that, BAECS first provides
Agent written notice of breach and an opportunity to cure such breach
within ten (10) days; or (b) the failure to pay its subcontractors or
employees providing services under this Agreement; or (c) a change in
ownership or control, liquidation, bankruptcy or insolvency of Agent.
5.3. Either party may terminate this Agreement for any reason upon one hundred
and twenty (120) days written notice.
5.4. Upon termination or expiration of this Agreement for any reason: (i) the
rights and duties that each party has accrued before termination will
continue in full force and effect; (ii) Agent will not be entitle to any
commissions for any Advertising for which Insertion Orders are submitted
to BAECS after the date of termination or expiration or ordered by Agent
or any customers served by Agent after the date of termination or
expiration; (iii) Agent acknowledges and agrees that it will not
interfere with BAECS's contractual relationship or prospective
contractual relationship with the customers served by Agent under this
Agreement; (iv) Agent immediately will return to BAECS all materials,
including sales contracts, software, promotional or marketing materials,
demonstration materials, and all other materials supplied to it by BAECS
or relating to its performance of services under this Agreement; and (v)
Agent will continue to receive its commission share for all orders
accepted by BAECS prior to the termination or expiration date including
those schedules that actually run after the termination or expiration
date. All material and software existing on Agent's word processing or
computing equipment, servers, email systems (including all back up
systems), will be destroyed or deleted by Agent within ten (10) days of
the date of termination or expiration, and Agent will provide BAECS with
written confirmation that all such material and software has been
destroyed or deleted.
6. LICENSE TO USE BAECS TRADE NAMES AND TRADEMARKS.
6.1. Subject to the terms and conditions specified in this Agreement, BAECS
hereby grants to Agent, for the term of this Agreement, a limited non-
exclusive, non-assignable license to use the trade names, trademarks and
service marks (hereinafter "Licensed Marks") for purposes of selling
Advertising.
6.2. BAECS will provide Agent with the specifications and restrictions on
using the Licensed Marks. Agent may use these Licensed Marks solely as
depicted in graphic configurations to be provided by BAECS.
6.3. Agent shall not use the Licensed Marks in any format other than the most
recent graphic configurations as provided by BAECS. Agent shall not use
any of the Licensed Marks as part of its corporate name, trade name or
business name. Agent further agrees to abide by such policies, standards
and practices regarding the use of the Licensed Marks as BAECS may
establish and provide written notice of from time to time.
6.4. Agent shall submit to BAECS for prior review and approval, all
advertising, including, without limitations, sales brochures, promotional
materials, business cards, letterhead, press releases, Internet and other
electronic listings, and other items or materials in which the Licensed
Marks are used. Agent shall not publish, distribute or use any such
advertising without the prior written
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approval of BAECS.
6.5. In order to comply and continue in compliance with applicable trademark
law, including the U.S. Trademark Act of 1946, 15 U.S.C. Section 1051, et
seq., with respect to control by BAECS of the nature and quality of the
Advertising for sale by Agent with the Licensed Marks;
6.6. Agent shall ensure that all advertising under Section 2 performed by
Agent in connection with the Licensed Marks complies with all applicable
Federal, State, and Local laws and regulations.
6.7. Agent shall comply with all guidelines outlined by BAECS and such other
quality control policies, standards and practices related to the Licensed
Marks as BAECS may adopt and provide written notice of from time to time.
6.8. BAECS shall have the right, at all reasonable times, to conduct an
examination of the facilities of Agent in conjunction with Agent's use of
any Licensed Marks to determine whether Agent's obligations under Section
2 comply with this Agreement and the BAECS policies, standards and
practices for the use of the Licensed Marks.
6.9. If at any time Agent fails to comply with this Agreement or with BAECS
policies with respect to the advertising permitted under Section 2,
standards and practices for such advertising, or Agent's use of the
Licensed Marks fails to comply with this Agreement or with BAECS'
policies, standards and practices, BAECS may suspend or terminate Agent's
license to use the Licensed Marks and/or terminate this Agreement.
6.10. Agent acknowledges the value of the Licensed Marks and the goodwill
associated therewith and acknowledges that such goodwill is a property
right belonging to BAECS or to BAECS' parent or affiliated companies and
that BAECS or BAECS' parent or affiliated companies are the owners of all
trademarks, service marks, trade names, and other rights in the Licensed
Marks. Agent acknowledges that nothing contained in this Agreement is
intended as an assignment or grant to Agent of any right, title or
interest in or to the Licensed Marks and that this Agreement does not
confer any right or license to grant sublicenses to third paries,
including but not limited to Agent's representatives, agents, or
subcontractors, to use any Licensed Xxxx. Agent shall not challenge the
title or any right of BAECS or BAECS' parent or affiliated companies in
and to the Licensed Marks or benefit therefrom, or make any claim or take
any action adverse to BAECS or BAECS' parent or affiliated company's
ownership of the Licensed Marks. All rights, if any, that may be acquired
by use of the Licensed Marks by Agent shall inure to the benefit of and
be on behalf of BAECS and BAECS' parent and affiliated companies. Agent
shall not adopt, use (other than as authorized herein), register or seek
to register any trade name, trademark or service xxxx anywhere in the
world which is identical to any Licensed Xxxx or which is so similar
thereto as to constitute a deceptive colorable imitation thereof or to
suggest or imply some association, sponsorship or endorsement by BAECS or
BAECS' parent or affiliated companies. BAECS warrants that it is the
owner of the Licensed Marks or has the right to grant the rights with
respect to the Licensed Marks.
6.11. Agent agrees to notify BAECS of any unauthorized use of the Licensed
Marks by others promptly as it comes to Agent's attention. BAECS and its
parent and affiliated companies shall have the sole right to engage in
infringement or unfair competition proceedings involving the Licensed
Marks.
6.12. Upon termination or expiration of this Agreement, the license to use the
Licensed Marks granted hereunder shall cease to exist and Agent shall
immediately cease any use of such Licensed Marks. Agent shall also
promptly destroy or return to BAECS all materials in possession or
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control displaying the Licensed Marks.
6.13. Agent shall not, without the prior written approval of BAECS, use in
any items or materials in which the Licensed Marks are used
(including, but not limited to communicational materials in which the
Licensed Marks are used), directly or by inference or implication, the
name or brand of any person or entity other than Agent or the Xxxx
Atlantic companies. Agent shall notify BAECS in advance of the
proposed use of the name or brand of a person or entity other than
Agent or the Xxxx Atlantic companies in items or materials in which
the Licensed Marks will be used. BAECS shall have forty-five (45) days
after being notified of such proposed use to approve or disapprove of
the proposed use. BAECS approval or disapproval of the proposed use
shall be at BAECS's sole discretion and the proposed use may be
disapproved by BAECS without cause. Any items or materials in which
the Licensed Marks are used and which use the name or brand of a
person or entity other than Agent or the Xxxx Atlantic Companies shall
also be subject to review.
7. INDEPENDENT CONTRACTOR STATUS.
The status of Agent to BAECS will be that of an Independent contractor
with a limited power of agency to represent BAECS for the sole
purposes of selling the Advertising and only to the extent explicitly
provided for in this Agreement. Agent will not make any representation
to the contrary to any person. In particular, Agent acknowledges that
all persons providing services under this Agreement are agents,
servants, contractors or employees solely of Agent and that they are
not agents, servants or employees of BAECS. Agent will not to bind, or
attempt to bind, BAECS to any obligation with any third party, it
being intended that BAECS and Agent each will be responsible for its
own actions. Persons providing services under this Agreement will not
be entitled to any benefits that BAECS provides its own employees.
8. ASSIGNMENT.
Agent will not assign any of its rights or duties under this Agreement
without the prior written consent of BAECS. Any attempted assignment
or delegation in contravention of the above provision will be void and
ineffective. BAECS may freely assign all or any part of this
Agreement.
9. INFORMATION; PUBLICITY.
9.1. Any BAECS information disclosed to Agent under this Agreement shall
remain BAECS property. All copies of such information in written,
graphic or other tangible form shall be returned to BAECS at its
request. Upon termination or expiration of this Agreement, BAECS
Information shall be destroyed or returned to BAECS at BAECS' sole
option. No copies shall be made of any documents or other media or
software provided by BAECS without the prior written consent of BAECS.
Unless such information was previously known to Agent free of any
obligation to keep confidential, or has been or is subsequently made
public by BAECS or a third party without breach of any agreement,
Agent agrees to keep such information strictly confidential. Such
information shall be used only in performing services under this
Agreement, and may not be used for other purpose unless agreed upon
between Agent and BAECS in writing. Agent shall required all parties
accessing BAECS information, including its employees, agents and
representatives, to sign a separate written agreement protecting BAECS
information substantially in the form of this provision.
9.2 BAECS and Agent will jointly own all information collected by cookie
data and other technologies from Agent's serving BAECS Advertising.
Agent agrees to provide such information to BAECS at its request.
10. GOVERNMENT LAWS AND REGULATIONS.
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Agent agrees, in connection with the performance of services hereunder, to
comply with all applicable federal, state or local laws, rules,
regulations, executive orders and other orders. Agent agrees that it will
not discriminate against any employee or applicant for employment on
account of race, color, religion, sex, disability or national origin.
11. RECORDS.
Agent agrees to maintain records of its activities under this Agreement in
accordance with recognized General Accounting Practices ("GAP"). BAECS will
have the right to audit or review the records of Agent relating to the work
performed, and any expenses incurred, in connection with this Agreement.
All compensation shall be subject to adjustment based on the results of
such audit.
12. SUBCONTRACTORS.
Agent may subcontract any portion of the work under this Agreement provided
that the subcontractor agrees to all the terms and conditions of this
Agreement. Agent will be liable for the conduct of such subcontractor to
the same extent as Agent's liability under this Agreement. Agent will
immediately terminate any such subcontractor upon BAECS's written request.
13. INDEMNIFICATION.
Each party agrees to indemnify and hold the other party and its parent
company, its subsidiaries and affiliates ("Indemnified Party") harmless
against any losses, damages, liabilities, claims or demands by any person
(including all costs, expenses and reasonable attorneys' fees on account
thereof or in connection with any investigation or preparation related
thereto or the enforcement of the indemnification provisions of this
Agreement) (collectively, the "Indemnified Amounts") arising from this
Agreement or that may be made as a result of either party's actual or
alleged acts or omissions, including any actual or alleged breach of any of
its obligations under this Agreement or any warranty or representation made
in this Agreement. The Indemnified Party agrees to notify the other party
promptly of any written claims or demands against the Indemnified Party for
which the other party is responsible and the Indemnified Party will be
entitled, at its option, to assume the defense or settlement of any such
claim, provided that no settlement shall be reached without the consent of
that party. The Indemnified Party will promptly be reimbursed by the other
party for Indemnified Amounts as they are incurred.
14. INSURANCE.
Agent will secure and maintain at its expense during the term of this
Agreement (i) statutory workers' compensation insurance and (ii) Commercial
General Liability insurance for a combined single limit of at least
$250,000 per occurrence for bodily injury and property damage with a
minimum policy aggregate of $500,000. Agent shall deliver a certificate of
insurance on which BAECS is named as an additional insured with reference
to (ii) above. Furthermore, BAECS must receive at least ten (10) days'
notice of cancellation or modification of the above insurance.
15. LIMITED LIABILITY.
Each party agrees that no party nor any parent, affiliate or subsidiary
companies shall be liable for any consequential, special, indirect,
incidental, punitive or exemplary damages for any acts or failure to act
under this Agreement.
16. PRESS RELEASES.
BAECS and Agent expect to issue press releases for certain Advertising
programs developed and sold under this Agreement.
17. NOTICES.
All notices to a party under this Agreement will be in writing and will be
sent by registered or
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certified mail, return receipt requested, or delivered by hand, by
overnight courier or by facsimile to such party's place of business noted
below or to such other address as may be designated in writing by either
party in accordance with this section.
Notices to Agent:
Latitude 90, Inc.
0000 Xxxx Xxxxxxx Xxxx.
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attention: ________________
Notices to BAECS:
Xxxx Atlantic Electronic Commerce Services, Inc.
00 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Legal Department
18. CHOICE OF LAW.
This Agreement will be governed by, and construed in accordance, with the
laws of the State of New York applicable to agreements made and to be
performed within such state without regard to the principles of conflicts
of law.
19. AMENDMENTS.
Unless otherwise provided for in this Agreement, no modification,
alteration or amendment of this Agreement will be effective unless
contained in a writing signed by both parties and specifically referring to
this Agreement.
20. NON-WAIVER.
No course of dealing or failure of either party to strictly enforce the
terms and conditions of this Agreement will be construed as a waiver of the
future performance of that term or condition.
21. SEVERABILITY.
In the event that one or more provisions contained in this Agreement are
for any reason held to be unenforceable in any respect under the laws of
the jurisdiction governing the Agreement, such unenforceability will not
affect any other term or condition of this Agreement and this Agreement
will be construed as if the unenforceable provision was not contained in
this Agreement.
22. SURVIVAL OF OBLIGATIONS.
Agent's obligations under this Agreement, which by their nature would
continue beyond the termination will survive termination, cancellation or
expiration of this Agreement.
23. FORCE MAJEURE.
Neither party will be liable for delays due to accidents, acts of God,
fire, strikes, embargo, acts of the Government, or other similar causes
("Force Majeure Event") beyond its control and that are not due to its acts
or failure to act. If a Force Majeure Event occurs, the party delayed will
promptly give notice to the other party. The party affected by the other
party's delay may elect to: (a) suspend performance and extend the time for
performance for the duration of the Force Majeure Event or (b) cancel all
or any part of the unperformed part of this Agreement.
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24. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement and understanding between
the parties with respect to the subject matter hereof and merges and
supersedes all prior discussions and writings with respect thereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
effective as of the date and year first above written.
XXXX ATLANTIC ELECTRONIC COMMERCE LATITUDE 90, INC
SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxx
------------------------------ ----------------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxxx X. Xxxxx
---------------------------- --------------------------
Title: VP - ECS Title: CEO
--------------------------- -------------------------
Date: December 23, 1998 Date: December 28, 1998
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