1
ADFORCE(TM) SERVICES AGREEMENT AdForce for Publishers
--------------------------------------------------------------------------------
EXHIBIT 10.2
ADFORCE SERVICES AGREEMENT
This AdForce Services Agreement ("Agreement") is entered into between
AdForce, Inc., a Delaware corporation with offices at 00000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000 ("AdForce") and the customer further described in the
signature block below ("Customer").
AdForce offers an Internet advertising management and delivery service known
as "AdForce for Publishers" (the "AdForce Service"), which enables each user of
the AdForce Service to manage its advertising on its Web site, a network of Web
sites, or similar on-line environments. AdForce provides each user of the
AdForce Service with a "client-side" software application ("Client") to enable
the user to place ad tags, schedule advertising and generate reports concerning
such advertising. AdForce maintains server complexes from which AdForce
electronically delivers advertising scheduled by Customer to the online
environments containing AdForce ad tags.
AdForce has agreed to provide the AdForce Service to Customer pursuant to the
terms and conditions of this Agreement. The parties hereby agree as follows:
1. ADFORCE SERVICE. In exchange for the fees set forth in Exhibit A, AdForce
agrees to provide Customer the level of AdForce Service indicated in the
table below for the period also indicated in below:
LEVEL OF SERVICE TERM
[INITIALS] [X] AdForce Gold [INITIALS] [X] 2 Year Term
--------- ---------
(Initial) (Initial)
Each level of AdForce Service provides the following: (a) a monthly report of
the number of "Impressions" (defined as the response to a request for an
advertisement made via an AdForce ad tag placed by Customer) delivered by
AdForce, including verification of each report by a third-party auditor (the
Audit Bureau of Verification Services, Inc. or another third party chosen by
AdForce); (b) the targeting features further described in Exhibit B; and (c) a
suite of standard reports also listed in Exhibit B. At AdForce's sole
discretion, features may be added to the AdForce Service and may be subject to
additional fees.
2. CUSTOMER SUPPORT. The AdForce Service levels include the customer support
described in Exhibit A.
3. CUSTOMER OBLIGATIONS. Customer agrees to implement the ad tags as described
in the AdForce User Guide and help documentation made available to Customer
by AdForce. Customer also agrees to schedule all advertising for Customer's
Web sites or other on-line properties using the AdForce Client. Should the
average file size of Customer's advertisements exceed 15 kilobytes, as
determined by AdForce on a monthly basis, Customer agrees to pay the
incremental fee listed in Exhibit A to compensate for higher bandwidth costs.
Customer agrees to provide AdForce rolling 90-day volume forecasts of
Impressions to be delivered using the AdForce Service, updated at the
beginning of each calendar month.
4. LICENSE/LIMITATIONS ON USE. Subject to the terms and conditions of this
Agreement, AdForce hereby grants to Customer, contingent on timely payment of
monies due to AdForce, a non-exclusive, non-transferable license for the term
of this Agreement to use the Client internally and solely in connection with
the AdForce Service. AdForce shall have the sole and exclusive ownership of
all right, title and interest in and to the Client, any enhancements thereto
and in any materials and data provided to Customer by AdForce. Customer shall
not copy, modify, alter, sell, distribute or sublicense the Client or reverse
assemble, reverse compile or otherwise attempt by any other method to create
or derive the source programs of the Client, nor authorize or contract with
third parties to do the same. Customer shall not use the Client or the
AdForce Service for any purpose other than managing Customer's advertising on
its own Web sites, including without limitation, providing outsourcing
services, timesharing or the operation of a service bureau for the benefit of
third parties. During the course of delivering advertising to visitors to
Customer's site, AdForce will collect and maintain information necessary to
target advertising, including but not limited to the user's IP address,
cookie, browser type and operating system, as well as the time, date and ad
tag of the request. Although AdForce owns the right to use or grant use of
this information, it will provide Customer, to the extent allowed by law,
with the ability to run the reports described in Exhibit A.
Page 1
2
ADFORCE(TM) SERVICES AGREEMENT AdForce for Publishers
--------------------------------------------------------------------------------
5. CONFIDENTIALITY. The Confidentiality Addendum attached hereto as Exhibit C is
incorporated herein by reference. Any customer passwords to the AdForce
Service, including the AdForce user guides, Client, and AdForce "help"
documentation, whether on-line or in printed form, are confidential to
AdForce. Any account information input into the AdForce Service by Customer
is confidential to Customer.
6. WARRANTY. Customer warrants that Customer is free to enter into this
Agreement and that this Agreement constitutes the valid and binding
obligation of Customer, enforceable in accordance with its terms. AdForce
warrants that AdForce is free to enter into and perform this Agreement and,
except for events beyond AdForce's control, including but not limited to
Internet access outages and other events of force majeure, (a) the AdForce
Service will materially conform to the functionality described in the AdForce
User Guide; (b) AdForce either owns or has the right to use all hardware and
software components of the AdForce Service and the provision of the AdForce
Service will not infringe on any intellectual property right of any third
party. EXCEPT AS SPECIFIED IN THIS SECTION, ADFORCE HEREBY DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY AND ALL
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-
INFRINGEMENT, IN CONNECTION WITH THIS AGREEMENT.
7. INDEMNIFICATION. (a) Subject to subsection (b), Customer shall defend,
indemnify and hold harmless AdForce from any claims, liability, damages and
costs (including reasonable costs and attorneys' fees, "Claims") arising out
of or relating to advertising placed by Customer using the AdForce Service,
including, without limitation, claims based on the failure of the AdForce
Service or the Client or allegations of libel, allegations of false or
misleading advertising, invasion of privacy or rights of publicity; provided
that: (i) AdForce promptly notifies Customer of such claims; (ii) Customer
has sole control of the defense and settlement of such claims and is not
responsible for any settlement that it does not approve in writing; and (iii)
AdForce renders all assistance required, at Customer's expense. (b) AdForce
shall defend, indemnify and hold harmless Customer from any Claims for
infringement arising out of or relating to Customer's use of the Client
pursuant to this Agreement; provided that: (i) Customer promptly notifies
AdForce of such claims; (ii) AdForce has sole control of the defense and
settlement of such claims and is not responsible for any settlement that it
does not approve in writing; and (iii) Customer renders all assistance
required, at AdForce's expense. If AdForce believes that an injunction may be
entered against Customer's use of the Client, AdForce may, at its option, (A)
obtain a license permitting such use, (B) modify the Client to avoid the
infringement, or (C) if it cannot reasonably do either of the foregoing,
terminate Customer's license to the Client. NOTWITHSTANDING ANY PROVISION OF
THIS AGREEMENT TO THE CONTRARY, ADFORCE'S INDEMNIFICATION OBLIGATIONS UNDER
THIS SECTION CONSTITUTE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO
INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
8. LIABILITY. NEITHER PARTY WILL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL,
SPECIAL OR EXEMPLARY DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT,
PRODUCT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN WARNED OF THE
POSSIBILITY OF SUCH DAMAGES.
9. TERMINATION. Either party may terminate the Agreement if the other party
fails to perform any of its obligations in any material respect, and such
failure continues for a period of thirty (30) days after receipt by the
breaching party of written notice from the non-breaching party specifying
such default. Either party may terminate this Agreement in the event that the
other party ceases to do business, undergoes a bankruptcy or insolvency
proceeding, or an assignment for the benefit of creditors. Upon the
expiration or termination of the Agreement for any reason, the parties will
return all confidential information of the other party in their possession.
One year (1 year) following the effective date of this Agreement, and for a
period of thirty (30) days thereafter, either party may terminate this
Agreement for any reason or no reason, by giving thirty (30) days written
notice to the other. All accrued payment obligations of Customer shall
survive expiration or termination of the Agreement, as shall the parties'
rights and obligations under Sections 4 through 9. Sections 11 through 13,
and Exhibit C.
10. ASSIGNMENT. This Agreement is not assignable or transferable by either party
without the prior written consent of the other party, except that a party may
assign the Agreement (a) by operation of law or (b) to any entity acquiring
substantially all of assignor's assets.
Page 2
3
ADFORCE(TM) SERVICES AGREEMENT AdForce for Publishers
--------------------------------------------------------------------------------
11. PAYMENT TERMS. Customer shall pay to AdForce the dollar amounts determined
from the pricing schedule set forth in Exhibit A, within 30 days from date of
invoice. All payments to AdForce shall be remitted in U. S. Dollars. Fees for
the AdForce Service are subject to change upon any renewal of this Agreement.
12. TERM AND LEVEL OF SERVICE. The term shall commence on the Effective Date
indicated below and shall continue for the period indicated in Section 1. The
term shall automatically renew for the same period of time as the initial
term unless, within 30 days of the end of any term, either party notifies the
other of its decision to terminate this agreement.
13. GENERAL. This Agreement is the complete and exclusive statement of the
mutual understanding of the parties and supersedes and cancels all previous
written and oral agreements and communications relating to the subject matter
of this Agreement. No failure or delay in exercising any right hereunder will
operate as a waiver thereof, nor will any partial exercise of any right or
power hereunder preclude further exercise. Any waivers or amendments shall be
effective only if made in writing. If any provision of this Agreement shall
be adjudged 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 enforceable. This Agreement shall be governed by the law of the
State of California without regard to or application of choice of law rules
or principles. The prevailing party in any action to enforce this Agreement
will be entitled to recover its attorneys' fees and costs in connection with
such action. Each party agrees to comply with all applicable laws, rules and
regulations in connection with its activities under this Agreement. Nothing
contained herein shall be construed as establishing a partnership, joint
venture, employment or other business relationship between the parties hereto
other than that of independent contractors. This Agreement may be executed in
counterparts.
IN WITNESS WHEREOF, the parties have executed this Agreement as of:
7/1 ("Effective Date").
--------------
Customer AdForce, Inc.
Company Name: XxxxXxxxXxxx.xxx By: /s/ [SIGNATURE ILLEGIBLE]
------------------------------
Address: 0000 Xxxxxxxxx Xx., Print Name: [SIGNATURE ILLEGIBLE]
Ste 430 ------------------------------
Xxxxxx XX 00000
Telephone #: (000)000-0000
Facsimile #: (000)000-0000 Title: Sales Bus. Mgr.
------------------------------
By: /s/ XXXX X. XXXX
----------------------
Print Name: XXXX X. XXXX
----------------------
Title: PRESIDENT & CO-CEO
----------------------
Page 3
4
ADFORCE(TM) SERVICES AGREEMENT AdForce for Publishers
--------------------------------------------------------------------------------
EXHIBIT A--ADFORCE SERVICE PACKAGES
ADFORCE GOLD
Campaign Management Scheduling
features Delivery
Reporting
Inventory Forecast
Targeting
Auditing Free monthly aggregate
audit; $600 per campaign
audit
Customer Support 24 hour support by phone
or pager
Same Day Change Orders $100 each
Campaign Service Customer's traffic
department schedules
campaigns
RATES PER THOUSAND IMPRESSIONS
CPM for 468x60 banners .28
CPM for 88x31 and 88x62 buttons .18
CPM for redirects to AdSmart .07
CPM for non-AdSmart redirects .16
NOTE: FIRST 2 MONTHS WILL BE BILLED AT A 50% DISCOUNT.
- Monthly minimum billing of $10,000.
- Custom reports can be designed for an extra charge.
- On-site training is available on request for $1,200 per day, per trainer, plus
reasonable travel expenses
NOTE: ADFORCE WILL PROVIDE 2 DAYS OF ON-SITE TRAINING AND CONSULTING AT NO COST.
- A surcharge of $0.05 per thousand Impressions will be applied for each
5 kilobytes, or fraction thereof, that the average size of advertisements over
a 30-day period exceeds 15 kilobytes.
Page 4
5
ADFORCE(TM) SERVICES AGREEMENT AdForce for Publishers
--------------------------------------------------------------------------------
EXHIBIT B
ADFORCE TARGETING
The AdForce Service include targeting on the following parameters, when AdForce
databases allow the parameter to be resolved:
- BROWSER TYPE - Different campaigns can be delivered to visitors with different browsers.
- OPERATING SYSTEM - Different campaigns can be delivered to visitors with different operating systems
- DOMAIN TYPE - Different campaigns can be delivered to visitors from different domains (i.e. .com or .edu)
- SERVICE PROVIDER - Different campaigns can be delivered to visitors with different Internet service providers.
- TELEPHONE AREA CODE - Different campaigns can be delivered to visitors in different area codes.
- SIC CODE - Different campaigns can be delivered to visitors working for companies with different SIC codes.
- COUNTRY - Different campaigns can be delivered to visitors from different countries.
- FREQUENCY - An advertisement can be shown no more than a specified number of times to each visitor.
- SEQUENCE - A series of advertisements can be shown in sequence to a visitor.
- KEYWORDS - Advertisements can be targeted on the basis of a word or phrase typed by a visitor.
- SITE DATA - Ads can be targeted on the basis of data in a site's database (i.e. with registered users)
- DAY/DATE/TIME OF DAY - Ads can be scheduled to run during specific times and on specific days.
- CONTENT AREA - Ads can be targeted to a specific area of a site.
There may be additional charges for additional targeting parameters added in the
future such as demographic or behavior targeting, as well as for customization
of the targeting algorithms for keywords and site data.
ADFORCE REPORTING
The following reports are currently available in the AdForce Service:
NETWORK REPORTS WEBSITE REPORTS ADVERTISER REPORTS
----------------------------------------------------------------------------------------------
Daily Campaign Details Activity by Advertiser Campaign On-line Summary
Daily Campaign Summary Activity by Area Code Summary by Area Code
Monthly Billing Report Activity by Browser Summary by Banner
Summary by Advertiser Activity by Content Unit Summary by Browser
Summary by Area Code Activity by Country Summary by Category
Summary by Browser Activity by Date Summary by Country
Summary by Category Activity by Domain Summary by Date
Summary by Country Activity by Keyword Summary by Domain
Summary by Date Activity by Hour Summary by Hour
Summary by Domain Activity by Operating System Summary by Operating System
Summary by Hour Activity by Pay Type Summary by Service Provider
Summary by Operating System Activity by Service Provider Summary by SIC Code
Summary by Payment Type Activity by SIC Code Summary by Website
Summary by Service Provider Website Revenue Campaign Summary
Summary by SIC Code Monthly Billing Report
Summary by Website
Website Revenue
There will be additional charges for reports customized or designed to
Customer's specifications. There may also be additional charges for reports
added in the future.
Page 5
6
ADFORCE(TM) SERVICES AGREEMENT AdForce for Publishers
--------------------------------------------------------------------------------
EXHIBIT C
CONFIDENTIALITY ADDENDUM
This Confidentiality Addendum ("Addendum") is attached to that certain Services
Agreement between Customer and AdForce, Inc. (the "Services Agreement")
1. Confidential Information. For purposes herein, the party disclosing
Confidential Information (as defined below) in any given instance is referred to
as the "Disclosing Party," and the party receiving the information in such
instance is referred to as the "Recipient." "Confidential Information" includes
all information, data and know-how disclosed by Disclosing Party to Recipient
hereunder, whether in written form or embodied in tangible materials (including,
without limitation, software, hardware, drafts, drawings, graphs, charts,
spreadsheets, disks, tapes. prototypes, samples, letters, notes, memoranda or
presentations), which is clearly marked or labeled "CONFIDENTIAL" or with a
similar legend, or which if disclosed orally or not so marked, is of such a type
or nature that a reasonable person would conclude that such information is
confidential.
2. Confidentiality Obligations. Recipient agrees that it will preserve in
strict confidence and secure against accidental loss any Confidential
Information disclosed by Disclosing Party to Recipient, and will otherwise
comply with the terms of this Addendum, for a period of three (3) years from
disclosure of such Confidential Information by Disclosing Party. In preserving
Disclosing Party Confidential Information, Recipient will use the same standard
of care it would use to secure and safeguard its own confidential information of
similar importance, but in no event less than reasonable care. Any permitted
reproduction of Disclosing Party's Confidential Information shall contain all
confidential or proprietary legends that appear on the original. Recipient shall
immediately notify Disclosing Party in the event of any loss or unauthorized
disclosure of Confidential Information.
3. Permitted Disclosures. Recipient shall permit access to Disclosing Party
Confidential Information solely to its employees who (i) have a need to know
such information and (ii) have signed confidentiality agreements containing
terms at least as restrictive as those contained herein. Recipient shall not
disclose Confidential Information to any affiliate, parent or subsidiary of
Recipient, or disclose or transfer any Confidential Information to third
parties, without the specific prior written approval of Disclosing Party.
Recipient shall use Disclosing Party Confidential Information disclosed
hereunder solely for the purposes set forth in the Services Agreement and for
such other purposes as Disclosing Party shall specifically approve in writing.
4. Obligation to Return Confidential Information. Recipient acknowledges that
Disclosing Party retains ownership of all Confidential Information disclosed or
made available to Recipient. Accordingly, upon any termination, cancellation or
expiration of the Services Agreement, or upon Disclosing Party's request for any
reason, Recipient shall return promptly to Disclosing Party the originals and
all copies (without retention of any copy) of any written documents, tools,
materials or other tangible items containing or embodying Confidential
Information.
5. No Representations or Warranties. Disclosing Party makes no warranties,
whether express, statutory or implied, relating to the sufficiency or accuracy
of the Confidential Information disclosed for any purpose, nor regarding
infringement of others' intellectual property rights which may arise from the
use of such Confidential Information.
6. Exclusions. This Addendum shall not apply to information with respect to
which Recipient can affirmatively establish that (a) Recipient rightfully
possessed such information prior to its first receipt thereof from Disclosing
Party, as shown by files of Recipient in existence at the time of the
disclosure; (b) such information is publicly known or, through no wrongful act
or failure to act by Recipient, becomes publicly known; (c) the information is
hereafter furnished to Recipient by a third party who is not in breach of an
obligation of confidentiality; (d) employees or other agents of Recipient who
have not been exposed to the Confidential Information independently developed
such information without reference to or reliance upon Disclosing Party's
confidential information; or (e) Recipient is required by governmental or court
order to disclose such information, provided that Recipient shall provide
Disclosing Party advance notice thereof to enable Disclosing Party the
opportunity to prevent or control such disclosure.
7. No Grant of Property Rights. Recipient recognizes and agrees that nothing
contained in this Addendum shall be construed as granting any property rights,
by license or otherwise, to any Disclosing Party Confidential Information
disclosed pursuant to the Services Agreement or this Addendum, or to any
invention or any patent right that has issued or that may issue based on such
Confidential Information.
8. Remedies; Survival. Recipient acknowledges that improper disclosure, or
threatened disclosure, of Disclosing Party Confidential Information will cause
irreparable harm to Disclosing Party, and thus that Disclosing Party shall be
entitled to, among other forms of relief, injunctive relief to prevent any such
unauthorized disclosure. Recipient's obligations under this Agreement shall
survive termination of its association with Disclosing Party regardless of the
manner of such termination and shall be binding upon Recipient's heirs,
successors and assigns.
Page 6
7
EXHIBIT D
PERFORMANCE METRICS
The performance metrics for the various subsystems of the AdForce Service are
described below. "Uptime" is defined as 24x7 operation for each subsystem
listed, minus the maintenance periods described. AdForce's standard practices
provide for the following scheduled maintenance for the following subsystems:
SYSTEM SCHEDULED MAINTENANCE
------ ---------------------
Ad delivery (defined as ads 2 hours scheduled maintenance in the aggregate
delivered from an AdForce per calendar month
data center)
Reporting Reporting is generally available 24 hours per
day, subject to monthly maintenance of 8 hours
per month for rebuilding summary tables, etc.
Data for a given 24-hour Pacific Standard Time
calendar day will be available by 2:00 p.m.
(PST) the following day.
Campaign Management System 3 hours scheduled maintenance per day,
(including inventory 3:00 a.m.-6:00 a.m. (PST) daily. No campaign
management system) scheduling is available during this time.
Additional monthly maintenance of 8 hours for
upgrades, etc.
Exclusive of the maintenance periods described above, AdForce's required uptime
percentages are as follows:
A. Ad Delivery Uptime: 99.5%, measured each calendar month.
B. Reporting Uptime: 98.5%.
C. Campaign Management System Uptime: 98%.
AdForce will provide Customer a "make good" on any ads which did not serve as a
result of any downtime in excess of the required availability metric equal to
the number of ads not served due to such failure.
