Exhibit 10.09
24/7 MEDIA INC.
NETWORK AFFILIATION
AGREEMENT
This Network Affiliate Agreement is entered into and effective as of the 26th
day of August, 1999 ("Effective Date") by and between 24/7 Media Inc. and
XxxXxxxxxxxx.xxx Inc.
WHEREAS, XxxXxxxxxxxx.xxx (hereinafter the "Network Affiliate") is the
operator and owner of the XxxXxxxxxxxx.xxx Viewbar software program distributed
to residents of the United States and Canada through which advertising banners
can be served over the Internet (the "Web Site");
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 large,
high-profile 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 for display
on pages, screens, and other segments or spaces on web sites reasonably suitable
for the display of advertising;
WHEREAS, Network Affiliate wishes to subscribe to include the Web Site in
the 24/7 Network, and 24/7 wishes to accept such subscription;
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.
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A. The Network Affiliate hereby grants to 24/7 the right to sell banner
advertising for display on the central banner window of the Web Site
("Advertising") according to the terms of this Agreement. 24/7 may sell the
Advertising on a "run of network" basis without identifying the name of the
Network Affiliate to Advertisers.
2. Obligations of 24/7.
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In furtherance of the foregoing, 24/7 covenants and agrees to:
A. provide the Network Affiliate, during the term of this Agreement
and only for use in the performance of this Agreement, with unique Tags
(delivered with a targeting description) in HTML/Java or other appropriate
languages that shall be affixed appropriately by Network Affiliate to the Web
Site to enable 24/7 to serve Advertising to that Web Site or for the Network
Affiliate to redirect Advertising;
B. utilize its best efforts to sell Advertising on the Web Site to
Advertisers through a package of web sites in appropriate groups and/or through
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED FROM THE PUBLIC
FILING AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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C. serve or cause to be served Advertising to the Web Site, directly
or, at the option of Network Affiliate, through Network Affiliate's third-party
advertising serving service;
D. 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
and provide Network Affiliate with a targeting description of such Advertising,
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. 24/7
agrees that it will provide the Network Affiliate with the necessary software to
enable Network Affiliate to screen potential Advertising to be displayed on the
Web Site in order to decline such Advertising in accordance with the provisions
in 3(D) below;
E. 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 and the revenue produced (subject to billing corrections and reasonable
accounting adjustments) thereby. All such records produced or provided by 24/7
(i) shall govern and be the controlling documents in connection with all
payments due Network Affiliate under Section 4 hereof, and (ii) shall be the
joint property of 24/7 and Network Affiliate.
F. refrain from delivering "cookie" files to users of the Web Site
through the advertising served to the Web Site except in the limited
circumstances that such cookies are technically required in order to serve the
advertising. Nothing in this Agreement shall restrict 24/7's ability to use
cookies that were not placed on a users machine by way of the Web Site. Any and
all data regarding individual users of the Web Site collected by 24/7
("Collected Data") in the provision and delivery of Advertising to the Web Site
shall be the property of Network Affiliate. 24/7 agrees to use the Collected
Data only as required to provide the services hereunder. Notwithstanding the
foregoing, 24/7 may use and disclose, without the permission of Network
Affiliate, the aggregate numbers of Advertising delivered to the Web Site (i)
for 24/7's reporting purposes, consisting of compilation of aggregated
statistics about the service that may be provided to advertisers, potential
advertisers and the general public; (ii) and if required by court order, law or
governmental agency;
G. 24/7 agrees to deliver to the Network Affiliate, (i) a monthly
statement showing revenues earned from Advertising served to the Web Site during
the calendar month and any sum(s) due the Network Affiliate on account thereof,
and (ii) within 30 days of collection or such revenue by 24/7, payment
representing the Network Affiliate's portion of such revenues. 24/7 will
maintain, for at least two years after termination of this Agreement, its
records, contracts and accounts relating to Advertising sold on the Web Site
under this Agreement and will permit, upon prior written notice and no more than
two times per year, reasonable examination thereof at the offices of 24/7 by
authorized representatives of Network Affiliate; and
H. 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.
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The Network Affiliate covenants and agrees:
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A. that during the Term, it shall use reasonable efforts to continue
and maintain the Web Site in a manner consistent with the intent and purpose of
the Web Site on the date first written above;
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B. to insert the Tags on the Web Site in such a manner as to assure
that the Advertising to be affixed to said Tag, once served, is fully and
clearly visible on the Web Site when viewed at a 640 x 480 pixel resolution; and
Network Affiliate shall be responsible for utilizing such Tags, in conjunction
with the Advertising delivered by 24/7 pursuant to Section 2(D), to serve those
Advertisements to the Web Site as deemed appropriate by Network Affiliate.
C. that, on a monthly basis, not less than 20 million total ad
impressions (the "Inventory") will be available for the sale of Advertising by
24/7. Upon thirty (30) days written notice to 24/7, Network Affiliate may
increase this minimum Inventory number at its sole discretion.
D. to notify 24/7 within one business day from the time 24/7 provides
Network Affiliate with notice of any new Advertising, 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; and
E. to furnish 24/7 with statistical and other information regarding
the Web Site as is reasonably available to the Network Affiliate and which is,
in the opinion of the Network Affiliate, appropriate, in light of Network
Affiliate's privacy policy, for use by 24/7 for the sale of Advertising on the
Web Site ("Descriptive Information"). All such Descriptive Information provided
by Network Affiliate shall remain the property of Network Affiliate. 24/7 shall
have a limited right to use the Descriptive Information for the term of this
Agreement and only for the purpose of providing the services hereunder. The
Descriptive Information shall be considered Confidential Information under
Section 6 of this Agreement.
4. Payments.
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A. (i) Advertisers shall be directed by 24/7 to promptly pay all cash
and other consideration (the "Payment") generated from the sale of Advertising
by 24/7 during the term of this agreement.
(ii) 24/7 shall retain the percentage of the Net Payment (as defined
below) in accordance with Section 4(A)(iii) below, and shall pay to the Network
Affiliate the remaining percentage of the Net Payment. As used herein, the
term "Net Payment" is defined as the Payment, less those advertising agency
commissions actually retained by agencies or paid by 24/7 to agencies with
respect to the sale of Advertising on the Web Site.
(iii) Subject to verification by 24/7 of monthly Advertising
impressions on the Web Site, the initial commission rate to 24/7 Media is [*]
percent ([*])% of the Net Payment (the "24/7 Rate"). The 24/7 Rate shall be
reduced to [*]% for those calendar months during which the click-through rate
for Advertising on the Web Site is higher than the average affiliate click-
through rate for the 24/7 Network for that month.
B. 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.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED FROM THE PUBLIC
FILING AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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C. Each party will be obligated to comply with its obligations under
this Agreement in respect of Advertising sold by 24/7 Media prior to the date
of termination of this Agreement.
5. Intellectual Property. Each party shall retain ownership of that party's
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hardware, software, programs, codes, trade names, technology, intellectual
property, licenses, patents, trademarks, copyrights, trade secrets, know-how,
and processes (collectively a "Party's technology") used by the parties under
this Agreement. Neither party shall have any right, title or interest in the
other Party's 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
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neither party shall disclose to any third party (other than its employees and
directors, in their capacity as such on a need to know basis so long as they are
bound by the terms of this Agreement) or use, except as required to fulfill the
obligations 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; (v) as authorized by the other party; and
(vi) 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
either party's 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 and Termination.
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A. The Term of this Agreement will commence on the date first written
above (the "Effective Date") and will continue for one year from the Effective
Date, and will renew automatically for additional periods of one year, unless
otherwise terminated pursuant to the terms of this Agreement. Either party may
terminate the Agreement by giving written notice to the other party no earlier
than four months after the effective date. Termination will be effective four
(4) months after the date on which written notice is given to the other party.
B. Notwithstanding Section 7.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
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period of 30 days after written notice of such breach is received by the
breaching party from the non-breaching party.
C. Notwithstanding Section 7.A. or 7.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 Affiliate of its covenants under Section 8(i)
of this Agreement, which material breach continues without cure for a period of
more than 48 hours after written notice of such breach is received by Network
Affiliate from 24/7 of such breach, or which material breach occurs on more than
two occasions.
D. Notwithstanding Section 7(A) or 7(B) of this Agreement, the Agreement
may be terminated by 24/7 on 30 days' prior written notice to the Network
Affiliate if the number of impressions in any two consecutive months is less
than one million average per month or if the average click-through rate for the
Advertising served on the Web Site for any three-month period is less than
0.25%.
E. Notwithstanding Section 7(A) or 7(B) above, this Agreement may be
terminated by Network Affiliate on written notice to 24/7 upon the occurrence of
a material breach by 24/7 of its covenants under Section 2(F) of this Agreement,
which material breach continues without cure for a period of more than 48 hours
after written notice of such breach is received by 24/7 from Network Affiliate
of such breach, or which material breach occurs on more than two occasions.
8. Content of Web Site. Each party covenants and agrees not to include or
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provide via the Web Site 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. Each party further covenants and agrees, with respect to performance of
its obligations hereunder, to comply with all laws, statutes, ordinances, and
regulations.
9. Indemnification. (A) Network Affiliate shall indemnify and hold harmless
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24/7, its advertisers and other suppliers and any related third parties, against
and in respect of any and all 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.
(B) 24/7 shall indemnify and hold harmless the Network Affiliate, its
suppliers and any related third parties, against and in respect of any and all
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.
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10. No Poaching. Both parties agree that, for a period of one year from the end
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of the Term, neither it nor its affiliates will solicit or recruit the services
of any employees of the other party, or hire any such employees.
11. No Waiver. This Agreement shall not be waived, modified, assigned or
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transferred without the other party's written consent, except that either party
may assign this Agreement without the other's consent in the case of a
reorganization, merger, consolidation, or sale of all or substantially all of
its assets. Each party agrees that if it assigns or transfers this Agreement, it
shall cause such successor, assignee, or transferee to assume all of the it's
obligations hereunder. Any assignment, transfer, or assumption shall not
relieve the either party of liability hereunder.
12. Governing Law. This Agreement shall be governed by and construed in
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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
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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, 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, including the Additional Terms attached
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hereto, 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
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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
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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
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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
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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. Year 2000 Readiness. Network Affiliate and 24/7 each represents and
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warrants that its Affiliate Technology and the 24/7 Technology, respectively,
when used independently and in conjunction with other software interfaces to or
from other intellectual property or other hardware or software, will have no
material Year 2000-related: (i) problems with the accuracy of any component of
such Affiliate Technology or 24/7 Technology, respectively, that creates,
accepts, displays, stores, retrieves, accesses, recognizes, distinguishes,
compares, sorts, manipulates, processes, calculates, converts or otherwise uses
dates or date-related data, (ii) operating defects (including generating
incorrect values with respect to date dependent data), or (iii) losses of
functionality or degradation in performance or volume capacity. As used herein
"Year 2000" means the advent of the year 2000 and into the 21st century, and the
ability to recognize dates after December 31, 1999 and leap years.
19. Press Releases. The parties hereof agree to obtain the prior written
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approval of the other parties hereto before issuing any press release or making
any other public statement regarding the other party or the transaction.
20. Independent Contractors. 24/7 and Network Affiliate shall each act as
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independent contractors. Neither party shall exercise control over the
activities and operations of the other party. 24/7 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.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
this 26th day of August, 1999 (the "Effective Date").
24/7 MEDIA, INC.
By: /S/ XXXXXX XXXXX
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Name: Xxxxxx Xxxxx
Title: Vice President -- Business Development
E-mail address: xxxxxx@000xxxxx.xxx
NETWORK AFFILIATE:
Name of Web Site: The AllAdvantage Viewbar at xxx.xxxxxxxxxxxx.xxx
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Corporate Name: XxxXxxxxxxxx.xxx
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Address: 00000 Xxxx Xxxxxxx Xx.
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Address: Xxxxxxx, XX 00000
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By: /S/ XXX XXXXXXXXX
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Name: Xxx Xxxxxxxx
Title: CEO
E-mail address: xxx.xxxxxxxx@xxxx.xxxxxxxxxxxx.xxx
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