EXHIBIT 10.26
INTERNET ADVERTISING SALES AGREEMENT
Agreement dated as of October 16, 1998 (this "Agreement") between WinStar
Interactive Media Sales, Inc. ("XXXX") and Empower Health Corporation (the
"Company").
A. The Company is the owner of the Web Sites (as defined below).
B. The Company desires to engage XXXX as its exclusive third-party sales
representative with respect to the Web Sites, and XXXX desires to accept such
engagement, each on the terms and conditions provided herein.
C. The parties desire for convenience to set forth certain contract terms
and provide other information in the table below:
Impressions per month * * *
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XXXX Commission Percentage * * *
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Payment terms Net 15 business days from receipt of payment
by XXXX
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Company Marketing/Editorial Contact Xxxx Xxxxxxxx
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Company E-mail address Xxxxxxxxx@xxxxxxxxxxxxx.xxx
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Web Site(s), including URL(s) Xxxxxx.xxx
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NOW THEREFORE, in consideration of the provisions hereof, the parties agree
as follows:
1. XXXX' Services.
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During the Term (as defined), XXXX will act as the Company's exclusive third-
party sales representative to sell Advertising (as defined) on the Web Sites and
syndicate content thereon. As the Company's exclusive agent, XXXX will enter
into contracts directly and on the Company's behalf with advertisers and/or
their ad agencies (collectively, "Advertisers") for all Advertising on the Web
Site. "Advertising" means ad banners and other advertisements, including
without limitation promotions, sponsorships, interstitials and microsites.
"Impressions" means, with respect to any advertisement, the screen image(s)
and/or sound that results when an advertisement (i.e., the actual graphic, audio
and/or video file, etc.) is
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Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as * * *. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
downloaded to an internet viewer. XXXX shall be paid its commission * * * on any
business sold directly by XXXX or on business initiated by Empower Health where
an ad or web development agency is involved. XXXX status as the exclusive third
party sales representative shall not restrict Empower Health to enter into
agreements with portal sites and give said sites sales rights to their co-
branded inventory as long as the rates for such pages are equivalent to the
rates at which XXXX sells. It is also understood that XXXX may in some cases be
asked by Empower Health to also sell some of the co-branded inventory.
In addition, XXXX will:
. Collect creative materials including graphics, audio, video, etc.
(collectively, "Advertising Creative") provided by Advertisers and transfer
Advertising Creative to the Company for purposes of ad serving to the viewers
of the Web Site.
. Review with the Company's designated advertising contact any Advertising
Creative provided by or on behalf of Advertiser that XXXX feels may be
inconsistent with the editorial policy or other criteria provided by the
Company.
. Adhere to the editorial and advertising policies and guidelines as provided
by the Company from time to time.
. Provide the Company with a form to be used to report Impressions as
reasonably requested by the Advertiser.
. Transfer advertising reports received from the Company to the Advertiser.
. Provide the Company with a placement order for each Insertion Order (as
defined) entered into by XXXX, and invoice Advertisers and make payments to
the Company as provided in Section 4.
. Work with the Company to analyze rates against competitive media buys and
evaluate ways in which unique sponsorship opportunities may be available for
existing properties and proposed new components.
XXXX acknowledges that the Company has the right to refuse to place any
advertising on the Web Site at its sole discretion, provided that requested
changes in Advertising Creative used in currently running campaigns require a
minimum of three business days' notice. The Company acknowledges that if it
rejects a particular advertisement or cancels an ad campaign, such rejection or
cancellation may adversely affect XXXX' ability to secure additional campaigns
to cover the Impressions made available as a result of such rejection or
cancellation. Accordingly, XXXX does not provide any assurances that the
Company will be able to implement substitute Advertising Creative or additional
campaigns in such a case.
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* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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2. Company's Responsibilities.
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The Company will use good faith efforts to provide the number of Monthly
Impressions as set forth in the table under Recital C of this Agreement. The
Company will list XXXX on its sites as the advertising contact and provide a
link to the XXXX sales site, xxxxxxxxxxxxxxxxxx.xxx. The Company will place
Advertising on the Web Site as reasonably requested by XXXX and/or the
Advertiser in order to achieve the goals of the ad campaign and generate the
agreed number of Impressions. The Company agrees to use commercially reasonable
efforts to maintain sufficient ad banner space and ad inventory in order to
provide such number of Impressions. The Company further agrees to generally
maintain the Web Site in a manner consistent with industry standards and its
past practices in order to achieve the target Impressions specified herein. The
Company will promptly notify XXXX if it becomes aware of or foresees any
material decrease in Impressions (e.g., if there is or may be a significant
drop-off in traffic to the Web Site or if the Company's server is not
operational for more than several hours). The Company will be responsible for
serving ads on its Web Site and supplying XXXX with audience and Impression
reports and other related documents as may be reasonably requested by XXXX .
The Company agrees to provide XXXX with all other information reasonably
requested by XXXX relating to the Web Site, the Advertising or as otherwise
needed by XXXX to perform its services hereunder, including available
demographic and psychographic (interest and behavioral) information regarding
the Web Site audience(s), Web Site descriptions and traffic by section, as well
as technical specifications relating to advertising, contact information and
cash remittance information. In connection therewith, the Company agrees to
keep all information provided to XXXX current with immediate notice of material
changes to such information and monthly updates of all information so provided.
The Company's agreement to provide information to XXXX as provided above is
subject to the Company's privacy policies relating to medical or other
confidential information and any applicable laws and regulations. The Company
will provide XXXX with Web Site editorial policies and guidelines, if available,
and will promptly provide XXXX with any changes hereto. In addition, the
Company is responsible for establishing the pricing and CPM (as defined) of all
Impressions, except as otherwise provided in Section 3.
3. Pricing of Impressions.
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Impressions shall be priced by the Company in United States dollars and
expressed as the cost per thousand Impressions ("CPM"), and any changes thereto
will be made on reasonable notice to XXXX. In addition, the Company will
establish a range within which XXXX may discount the CPM in any contract between
XXXX and an Advertiser for the placement of Advertising on the Web Site
("Insertion Order") without seeking the Company's prior approval. CPM discounts
outside of this range in any Insertion Order will require the Company's prior
approval, such approval not to be unreasonably withheld or delayed. The parties
will use their commercially reasonable efforts to ensure the confidentiality of
negotiated CPM prices.
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4. Billing and Collections.
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XXXX will invoice Advertisers on a monthly basis, and will specify both a gross
invoice amount and a net invoice amount. * * * Of such invoiced amount, XXXX
will remit to the Company the amount actually received by XXXX , less the XXXX
Commission Percentage. As specified in the payment terms in the table under
Recital C of this Agreement, XXXX' Commission Percentage shall be * * *,
calculated against the net invoice amount (or, if less, the amount actually
received by XXXX in respect thereof). In addition, XXXX will provide reports,
data and other information concerning the sale of Advertising by XXXX on the Web
Site as the Company may reasonably request from time to time.
XXXX agrees that it will use commercially reasonable efforts to collect all
amounts due from Advertisers; provided, however, that XXXX does not in any way
guarantee any such uncollected payments due from Advertisers. The Company
acknowledges that XXXX shall have no liability or other obligation to the
Company with respect to such uncollected amounts. the Company agrees to
cooperate with XXXX with respect to collections and to use commercially
reasonable efforts and take any other actions reasonably requested by XXXX to
facilitate collections of unpaid accounts.
5. Indemnification; Limitation of Liability; Exclusion of Damages.
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a. Indemnification. Each party hereby (the "Indemnifying Party") agrees
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to indemnify and hold harmless the other party and its officers, directors,
employees, agents and affiliates (the other party and its officers, directors,
employees, agents and affiliates being referred to as "Indemnified Parties")
from and against any and all claims, costs and expenses (including reasonable
attorneys fees) damages, causes of action, liabilities and losses (collectively,
"Losses") arising out of (i) a breach of any representation or warranty made by
such party or the nonfulfillment of failure by such party to perform any
covenant or agreement of such party contained herein or (ii) any claim brought
by a third-party (a "Third-Party Claim") against any Indemnified Party in
respect of which recovery may be sought under clause (i) above. Any Indemnified
Party shall promptly notify the Indemnifying Party of any Third Party Claim, and
shall set forth the basis on which indemnification is sought in any direct
indemnification claim. With respect to any Third Party Claim, the Indemnifying
Party shall be entitled, at its expense, to control the defense of any such
action, including settlements, provided that the Indemnified Party shall have
such control if it reasonably determines that a conflict of interest may exist
with respect to such claim or if the Indemnifying Party fails to vigorously and
diligently pursue the prosecution of such claim to its final conclusion. If the
Indemnified Party assumes control over any suit or proceeding hereunder, the
Indemnifying Party may participate in such defense at its sole cost and expense.
Each party hereunder shall have the right to approve proposed settlements, such
approval not to be unreasonably withheld or delayed.
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* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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b. Limitation of Liability. XXXX' total liability arising out of this
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Agreement or the services provided hereunder, whether based on contract, tort or
otherwise, shall not exceed the lesser of (i) the total amount of commissions
paid by Advertisers to (and actually received by) XXXX hereunder and (ii)
$5,000.
c. EXCLUSION OF DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
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DAMAGES OF ANY KIND, INCLUDING GENERAL, SPECIAL, INDIRECT, INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES ALLEGED
TO RESULT FROM LOSS OF DATA, LOSS OF USE OR LOSS OF PROFITS ARISING IN
CONNECTION WITH THE WEB SITE OR ANY ADVERTISING THEREON, THIS AGREEMENT OR THE
PROVISION OF ANY SERVICES HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
LOSSES OR DAMAGES.
6. Term and Termination.
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This Agreement shall have an initial term of one year, and shall automatically
renew for successive periods of one year thereafter, unless either party
provides written notice of its intent to terminate the Agreement during the 90-
day period prior to such renewal (such period, including renewals, the "Term").
Notwithstanding the foregoing, either party may terminate this Agreement for any
reason at any time on 60 days' prior written notice. the Company agrees that it
will honor all Impressions covered by Insertion Orders entered into before the
date on which this Agreement terminates, even if entered into after the date on
which notice of termination was given, and regardless of whether the Insertion
Orders are executable before or after such actual termination date. In
addition, either party can terminate this Agreement on 10 days prior notice for
a breach of Section 4 hereof and on 30 days prior notice for a breach of any
other provision hereof, which termination shall become effective at the end of
such 10 or 30 day period, as applicable, if the breach is not cured by the other
party within such time frame.
Notwithstanding the foregoing, XXXX may, at its sole discretion, terminate this
Agreement immediately on notice thereof to the Company if it determines that
representation of the Web Site conflicts with XXXX' standards or the standards
being set by other web sites it represents. Examples of such potential conflicts
include, without limitation: pornography, excessive violence, abusive and/or
foul language, or a pattern of neglect on the Web Site such that it appears the
Company is not updating it regularly or has abandoned it altogether.
7. Miscellaneous Provisions.
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a. Notices. All notices and approvals desired or required to be given to
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either party hereunder shall be in writing and shall be deemed given when
delivered via (i) certified mail, return receipt requested, all charges prepaid,
(ii) express mail or other courier service, with proof of sending, (iii) hand
delivery or (iv) fax, with proof of transmission, in each case to the other
party's address or fax number set forth on the signature pages hereof or to such
other address as either party may designate to the other in writing.
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b. Assignments. Neither party may assign this Agreement or any rights or
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obligations hereunder without the prior approval of the other party, such
approval not to be unreasonably withheld or delayed.
c. Governing Law. This Agreement shall be governed by, and construed in
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accordance with, the internal law of the State of New York applicable to a
contract executed and performed in such State, without regard to choice of law
principles. In the event any dispute not resolved through good faith
negotiation, the parties hereby consent to exclusive jurisdiction of State
courts of the State of New York, located in New York County and the Untied
States District Court for the Southern District of New York, and irrevocably
designate such courts as the exclusive for a tribunals for the resolution of any
such disputes.
d. Entire Agreement This Agreement represents the entire understanding of
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the parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings relating thereto, whether written or oral. No
amendments or modifications may be made to this Agreement except in writing
signed by the parties.
e. Defaults; No Waiver. No waiver by either party of any default
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hereunder shall constitute a waiver by such party of any subsequent default,
whether or not similar. All remedies under this Agreement or under law or
otherwise shall be cumulative and not alternative.
f. Severability. If any term or provision of this Agreement is declared
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illegal, invalid or unenforceable, the parties intend that the remainder of this
Agreement shall not e affected thereby and that, in lieu of any such stricken
provision, there shall be added as a part hereof, a substitute provision as
similar in substance to the illegal, invalid or unenforceable term or provision
as may be possible.
g. No Partnership. Nothing contained in this Agreement shall be construed
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to constitute a partnership or joint venture, or either party the employee,
agent, partner or joint venturer of the other, it being understood and agreed
that the relationship of the parties is that of independent contractors.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the parties as of the date first written above.
WINSTAR INTERACTIVE MEDIA SALES, INC.:
By /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: President, WinStar Interactive
000 Xxxx Xxxxxx
00xx xxxxx
Xxx Xxxx, XX 00000
Attn: President, WinStar Interactive
Fax: (000) 000-0000
EMPOWER HEALTH CORPORATION
By: /s/ Xxxxx X. Xxxxxxx-Xxxx
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Name: Xxxxx X. Xxxxxxx-Xxxx
Title: Chief Financial Officer
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxxxx
Fax: (000) 000-0000
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