EXHIBIT 10.9
D.A.R.T. SERVICE AGREEMENT
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"DART Technology," as herein defined, may be used only on the
condition that the Company (as defined herein) agrees to the following
terms and conditions. As of April 15, 1997, DoubleClick, Inc.
("DoubleClick") with an address at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000
grants to:
Company: Web Genesis, Inc.
Address: 00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
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Xxx Xxxx, XX XXX 00000
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City State Country Zip Code
(herein "Company"), and Company hereby accepts on the terms and conditions
set forth herein, the right to use the DART Technology, developed and owned
by DoubleClick as described below in connection with the delivery of
Banners (as defined herein) to the Web Site (as defined herein).
1. Definitions: As used herein the following defined terms shall
have the following meanings:
a. "Advertiser" is defined as each advertiser which
authorizes Company to deliver said advertiser's Banners to the Web
Site.
b. "Banner" is defined as an Advertiser's advertisement and
its contents which appears on the Web Site.
c. "Impression" is defined as occurring each time a Banner
appears on the Web Site resulting from a user accessing or visiting
such Web Site.
d. "Non-Paying Banner" is defined as a Banner for which
Company does not receive payment or consideration of any kind for its
delivery to the Web Site. All Non-Paying Banners shall reside on
Company's server.
e. "Paid Banner" is defined as a Banner for which Company
shall receive payment or consideration of any kind (including, without
limitation, in-kind or barter consideration) from an Advertiser for
delivery of its Banner to the Web Site.
f. "Web Site" is defined as xxxxxxxxxx.xxx.
2. DART Technology: The DART Technology consists of (a) any and
all of DoubleClick's proprietary technology which allows for the targeted
delivery of Banners to Internet users based on a set of criteria selected
by Advertisers, (b) DoubleClick's Ad Management System and (c) all
accompanying written, explanatory or technical material, user or reference
manuals and installation guidelines related to the DART technology (the
"Documentation").
Company shall be given a unique password to access DoubleClick's
Ad Management System so as to permit the delivery of Banners using the DART
Technology which password shall be made available to DoubleClick by Company
for DoubleClick's use in trafficking Banners as provided hereunder. Company
shall be solely responsible for soliciting all Advertisers and handling all
Advertiser inquiries of any type or nature.
DoubleClick's sole obligations hereunder shall be to (a) make the
DART Technology available to Company for the delivery of Banners, (b)
traffic Banners using the DART Technology, which trafficking shall consist
of inputting the Banners into the DART Technology service and (c) redirect
its server to pick up Non-Paying Banners from Company's server so as to
enable Company to deliver said Non-Paying Banners. Notwithstanding the
foregoing, Company may, upon thirty (30) days prior written notice to
DoubleClick, and provided Company's designated employees have been trained
by DoubleClick as provided herein, traffic Banners using the DART
Technology. Thereafter, Company shall be solely responsible for trafficking
all Banners in connection with the Web Site.
3. Grant of Rights: In consideration of Company's payment to
DoubleClick of the fees specified in this Agreement, DoubleClick grants
Company the non-exclusive and non-transferable right during the Term hereof
to use the DART Technology for delivery Banners to the Web Site. The
parties acknowledge and agree that Company's access to the DART Technology
shall not extend beyond that necessary to permit Company to deliver the
Banners to the Web Site. Company agrees that it shall be solely responsible
for all costs and expenses it incurs in connection with this Agreement and
use of the DART Technology, including, without limitation, expenses
associated with creating, developing, editing, updating and otherwise
managing Banners and all content and services available on or through
Banners, delivery of Banners to the Web Site and establishment and
maintenance of links to the Web Site.
4. Training: DoubleClick shall provide those employees of Company
who will be accessing and using the DART Technology with a training course
(the "Training Course") explaining the proper use of the DART Technology at
a time and place to be mutually agreed upon by DoubleClick and Company.
Company acknowledges and agrees that (a) it shall not permit any of its
employees to access and use the DART Technology unless any such employee
has successfully completed the Training Course and has been so certified by
DoubleClick; and (b) the DART Technology shall only be used in accordance
with the policies, practices and procedures described in the Documentation.
5. Fee: In consideration of the rights herein granted, Company
agrees to pay to DoubleClick as follows:
a. For Paid Banners: DoubleClick shall receive a monthly fee
calculated as follows:
Number of Paid Banner Cost Per One Thousand
Impressions per Month Impressions (CPM)
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0 - 5,000,000
5,000,001 and above
(By way of example, if for a given calendar month there are 7,000,000
Paid Banner Impressions and DoubleClick provides trafficking services,
DoubleClick's fee for said month shall equal calculated as
follows: (i) /CPM for Paid Banner Impressions 1 through 5,000,000
(i.e. ) and (ii) /CPM for Paid Banner Impressions 5,000,001
through 7,000,000 (i.e. ).
If Company elects to traffic Paid Banners as provided in
paragraph 2 hereof, the above referenced costs per 1,000 Paid Banner
Impressions shall each be reduced by to and ,
respectively.
b. For Non-Paying Banners: Company shall pay to DoubleClick
a monthly fee equal to /CPM for Non-Paying Banner Impressions.
c. Payment Terms: All fees due to DoubleClick for any
calendar month shall be payable by check within thirty (30) days
following the end of each month.
6. Term: The term of this Agreement (the "Initial Term") shall
commence on the date first set forth above and shall continue for a period
of six (6) months thereafter. The term shall thereafter be automatically
extended on the same terms and conditions as are contained herein for five
(5) consecutive additional six (6) month periods (the "Subsequent Periods")
unless either party provides the other with written notice at least sixty
(60) days prior to the end of the Initial Term or any Subsequent Period
stating that the Agreement shall not be renewed. The Initial Term and any
Subsequent Period, shall collectively be referred to as the "Term". Upon
the expiration or earlier termination of this Agreement, Company's right to
use the DART Technology or any part thereof shall end immediately and
Company shall no longer access the DART Technology and Company shall return
all original Documentation (and any authorized copies of said original
Documentation) to DoubleClick.
7. Limitations on Use: Company may not use, copy, modify, alter
or distribute the DART Technology (electronically or otherwise), except as
expressly authorized by DoubleClick in writing. Under no circumstances may
Company reverse assemble, reverse compile or otherwise attempt by any other
method to create or derive the source programs or any part thereof from the
object program or from other information made available under this
Agreement or otherwise, nor authorize any third parties to do the same.
Company shall not be entitled to copy the Documentation, except as
expressly authorized by DoubleClick in writing.
8. Proprietary Protection: Company understands and acknowledges
that the DART Technology reflects substantial trade secrets of DoubleClick
and that DoubleClick shall have the sole and exclusive ownership of all
right, title and interest in and to the DART Technology and all copies, and
all Enhancements (as defined herein) thereto (including ownership of all
copyrights, patents and other intellectual property rights pertaining
thereto), subject only to the rights expressly granted to Company herein.
This Agreement does not provide Company with any title to or ownership
interest in the DART Technology, but only with a right of limited use
during the Term hereof. At no time shall Company assert any right, title or
interest in the DART Technology or any element thereof or in any new
release of or Enhancement to the DART Technology or in the names
"DoubleClick", "Spotlight", "Test It", or any derivatives thereof, or any
other trademarks, service marks, tradenames, symbols and logos owned or
controlled by DoubleClick (collectively, "DoubleClick's Proprietary
Materials"). Company agrees that it will not directly or indirectly use or
permit any of DoubleClick's Proprietary Materials to be used in connection
with any product, service, promotion or publication without DoubleClick's
prior written consent. Company further acknowledges and agrees that the
Documentation was developed by DoubleClick and DoubleClick retains the sole
and exclusive ownership of, and all right, title and interest in and to the
Documentation, including the copyrights therein.
9. Maintenance: Upon Company's request, DoubleClick will provide
maintenance services, if DoubleClick's personnel are available to provide
such technical support, for a fee to be negotiated in good faith by the
parties prior to DoubleClick providing such services [, based upon
DoubleClick's standard hourly rates]. It is understood and agreed that
DoubleClick shall not be required to perform any maintenance services
hereunder.
10. Updates and Upgrades: During the Term hereof and upon
Company's request and only as long as all outstanding fees have been paid
by Company to DoubleClick, DoubleClick shall provide Company with any
non-custom enhancements, maintenance modifications, updates and/or upgrades
of the DART Technology (collectively, "Enhancements") as they become
available, at no additional expense to Company and upon the provision of
said Enhancements to Company the foregoing will become part of the DART
Technology for purposes of this Agreement. DoubleClick's failure to provide
Enhancements shall not be deemed a material breach of this Agreement.
11. Representations and Warranties by DoubleClick: DoubleClick
warrants and represents that DoubleClick has the full unrestricted right,
power, and legal capacity to enter into this Agreement, to carry out the
terms and conditions hereof and to grant to Company the rights and
privileges herein granted to Company. EXCEPT AS PROVIDED IN THIS PARAGRAPH
11, DOUBLECLICK MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR
IMPLIED, INCLUDING ANY IMPLIED WARRANTY OR MERCHANTABILITY OR FITNESS OF
THE DART TECHNOLOGY FOR A PARTICULAR PURPOSE. DOUBLECLICK SHALL NOT BE
LIABLE FOR OR TO COMPANY, NOR FOR OR TO ADVERTISERS, NOR FOR THE CONTENTS
OF THE WEB SITE OR PAGES, NOR FOR ANY LOSS, COST, DAMAGE OR EXPENSE
(INCLUDING COUNSEL FEES) INCURRED BY ANY ADVERTISER IN CONNECTION WITH THE
DELIVERY OF ANY OF ADVERTISER'S BANNERS TO THE WEB SITE BY COMPANY,
INCLUDING, WITHOUT LIMITATION, FOR ANY TECHNICAL MALFUNCTION, COMPUTER
ERROR OR LOSS OF DATA OR OTHER INJURY, DAMAGE OR DISRUPTION TO ADVERTISER'S
BANNERS. IN NO EVENT SHALL DOUBLECLICK BE LIABLE FOR ANY INDIRECT,
INCIDENTIAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR
RELATED TO THIS AGREEMENT EVEN IF SUCH DAMAGES ARE FORSEEABLE AND WHETHER
OR NOT DOUBLECLICK HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT
SHALL DOUBLECLICK'S LIABILITY ARISING OUT OF THE USE OF THE DART TECHNOLOGY
OR OTHERWISE OUT OF THIS AGREEMENT, NOTWITHSTANDING THE FORM IN WHICH ANY
ACTION MAY BE BROUGHT (E.G. TORT, CONTRACT, OR OTHERWISE) EXCEED THE TOTAL
AMOUNT PAID TO DOUBLECLICK BY COMPANY HEREUNDER. COMPANY SHALL REQUIRE ALL
ADVERTISERS TO SIGN A STATEMENT ACKNOWLEDGING THE FOREGOING, WHICH
STATEMENTS SHALL BE PROMPTLY FORWARDED TO DOUBLECLICK BY COMPANY. THE
COMPANY ACKNOWLEDGES THAT THE AFOREMENTIONED REQUIREMENT IS OF THE ESSENCE
OF THIS AGREEMENT.
12. Representation and Warranties by Company: Company warrants
and represents that:
a. Company has the full unrestricted right, power, and legal
capacity to enter into this Agreement, to grant the rights herein
granted and fully to perform its obligations hereunder;
b. Company has entered into Agreements with each Advertiser
granting Company the right to deliver said Advertiser's Banners to the
Web Site using DART Technology;
c. Company and/or Advertisers own and/or have the right to
use to the extent necessary all material contained in the Banners,
including, without limitation, the copyright, trademark and other
proprietary rights in and to such materials and the use of such
materials will not violate any federal, state or local laws or
regulations;
d. Company and/or Advertisers have secured the requisite
permission to use any person's name, voice, likeness and performance
as embodied in the Banners, or any other element contained in said
material; and
e. Company's use of the DART Technology will not violate any
federal, state or local laws.
13. Indemnification: Company agrees to indemnify and hold
DoubleClick harmless from and against any and all claims, actions, losses,
damages, liability, costs and expenses (including reasonable attorneys'
fees) arising out of or in connection with (i) the breach of any
representation, warranty or agreement made by Company hereunder, (ii) the
Web Site including, without limitation, claims for infringement of
copyright or other intellectual property rights and violation of rights of
privacy or publicity and/or (iii) the delivery of Banners by Company using
the DART Technology. DoubleClick shall promptly notify Company of all
claims and proceedings related thereto of which DoubleClick becomes aware.
14. Termination by DoubleClick: DoubleClick shall have the right
to terminate this Agreement at any time if:
a. Company breaches or is in default of any of its
representations, warranties, agreements, covenants or obligations
contained herein, including, without limitation, Company's payment
obligations, and fails to cure such breach or default within thirty
(30) days of Company's receipt of DoubleClick's written notice of such
default.
b. DoubleClick, in its reasonable good faith discretion,
determines that Company has used, could use, or intends to use the
DART Technology in such a manner that (a) could damage or cause injury
to the DART Technology or (b) reflects unfavorably on the reputation
of DoubleClick.
15. Assignment: The Agreement does not extend to Company's
subsidiaries, affiliates, assignees, or related or sister companies.
Company's rights hereunder may not be sold, transferred, leased, assigned
or sublicensed to any individual, firm, corporation or other entity
(including, without limitation, Company's subsidiaries, affiliates,
assignees, or related or sister companies) without DoubleClick's prior
written consent. Any act in derogation of the foregoing shall be null and
void and shall not relieve Company of its obligations under this Agreement.
Any attempt by Company to assign the rights granted herein shall be void
and shall automatically terminate Company's right to use the DART
Technology.
16. Audit Rights: Upon written notice, DoubleClick may examine
(or at DoubleClick's cost and expense appoint an independent certified
public accountant or reputable industry audit representative to examine)
the books and records of Company relating to the revenues earned by Company
in connection with its delivery of Banners using the DART Technology, on
the premises of Company, during reasonable business hours.
17. Confidentiality: Any information relating to or disclosed in
the course of this Agreement by either party (the "Disclosing Party") to
the other party (the "Receiving Party"), which is or should be reasonably
understood to be confidential or proprietary to the Disclosing Party,
including but not limited to, the material terms of this Agreement,
information about the DART Technology and technical processes and formulas,
source code, product designs, sales, cost and other unpublished financial
information, product and business plans, projections, and marketing data
shall be deemed "Confidential Information" and shall not be used, disclosed
or reproduced by the Receiving Party without the Disclosing Party's prior
written consent. "Confidential Information" shall not include information
(a) already lawfully known to or independently developed by the Receiving
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.
18. Independent Contractor Status: For purposes hereof each party
shall be and act as an independent contractor and not as partner, joint
venturer or agent of the other.
19. Modifications and Waivers: This Agreement, including
represents the entire understanding between DoubleClick and Company and
supersedes all prior agreements. No waiver, modification or addition to
this Agreement shall be valid unless in writing and signed by the parties
to this Agreement.
20. Applicable Law: This Agreement shall be governed by and
construed in accordance with the substantive laws of the State of New York
and Company agrees that jurisdiction and venue of all matters relating to
this Agreement shall be vested exclusively in the federal, state or local
courts within the State of New York.
21. Severability: If any provision of this Agreement shall be
adjudicated by any court of competent jurisdiction to be unenforceable or
invalid, that provision shall be limited or eliminated to the minimum
extent necessary so that this Agreement shall otherwise remain in full
force and effect and the other provisions shall be unaffected.
Accepted:
WEB GENESIS INC.
By:
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Title:
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Approved:
DOUBLECLICK, INC.
By:
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Title:
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