1
** CERTAIN CONFIDENTIAL
MATERIAL CONTAINED IN THIS
DOCUMENT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE
406 OF THE SECURITIES ACT OF
1933, AS AMENDED.
EXHIBIT 10.13A
WEBSITE ADVERTISING AGREEMENT
THIS WEBSITE ADVERTISING AGREEMENT (the "AGREEMENT") is made as of March
31, 1999, by and between XXX.XXX, Inc., a Delaware corporation ("WEB HOST"), and
Xxxxxxx.xxx, a Washington corporation ("ADVERTISER"), for the purpose of
providing Advertiser with advertising space on Web Host's Net@ddress website
(the "WEBSITE"). In the event that an advertising agent is executing this
Agreement on behalf of Advertiser, such party executing this Agreement as an
agent shall be jointly and severally responsible for all amounts owed hereunder.
1. DELIVERY OF AD.
Advertiser will be solely responsible for, and will deliver to Web Host,
Advertiser's content for display on the Website (each delivery is an "AD"). The
Ad will be displayed on the Website and will be an active hypertext link. Web
Host may, in its sole discretion, refuse to display an Ad or may remove an Ad
or accompanying hypertext link as it deems. All ads must meet the Technical
Specifications outlined in Exhibit A.
2. FEES; IMPRESSIONS.
2.1 FEE AND IMPRESSION SCHEDULE. Advertiser shall pay Web Host advertising
fees, and Web Host shall use commercially reasonable efforts to deliver banner
impressions, button impressions, logout page transfers and inbox direct
signups, according to the following monthly schedule (the "Schedule"):
BANNER BUTTON EMAILS MARKETPLACE LOGOUT LOGOUT TOTAL COST
IMPRESSIONS IMPRESSIONS MARKETPLACE
----------- --------------- --------------- --------------- --------------- --------------- ---------------
[ ** ] [ ** ] [ ** ] [ ** ] [ ** ] [ ** ] $ [ ** ]
----------- --------------- --------------- --------------- --------------- --------------- ---------------
2.2 PAYMENT; TAXES. Advertiser shall pay the advertising fees set forth in
the Schedule within thirty (30) days after receipt of the invoice. Such fees
are exclusive of, and Advertiser shall pay, all sales, use, excise and other
taxes which may be levied upon either party in connection with this Agreement
or on activities occurring on the Website, except for taxes based on Web Host's
net income.
2.3 IMPRESSION DELIVERY. In the event Web Host delivers fewer banner
impressions, button impressions, logout page transfers or inbox direct signups
during any month than is required in the Schedule, Web Host shall deliver, in
the subsequent month, in addition to the number of banner impressions, button
impressions, logout page transfers and inbox direct signups specified in the
Schedule for such subsequent month, the number of banner impressions, button
impressions, logout page transfers and inbox direct signups by which it fell
short during the previous month (the "ADDITIONAL IMPRESSIONS"). If Web Host
fails to deliver the Additional Impressions during such subsequent month, then
the advertising fee due for such subsequent month shall be decreased
proportionately.
3. REPORTS.
Within fifteen (15) days following the end of each calendar month, Web
Host shall invoice Advertiser for the fees due for such month. Each invoice
will be accompanied by a report detailing the number of (i) banner impressions,
(ii) button impressions, (iii) logout page transfers and (iv) inbox direct
signups received for each Ad during such month (each a "REPORT"). Advertiser
acknowledges and agrees that information in any such Report will represent
historical data only, and will not be a guarantee of the number of banner
impressions, button impressions, logout page transfers or inbox direct signups
that will be received by Advertiser in the future.
4. LICENSE.
4.1 AD LICENSE. For the term of this Agreement, Advertiser hereby grants
to Web Host a non-exclusive, royalty-free, worldwide license to reproduce,
distribute, create derivative works of, publicly perform, publicly display and
digitally perform the Ad on or in conjunction with the Website. Web Host may
make a reasonable number of archival or back-up copies of the Ad. Title to and
ownership of all intellectual property rights of the Ad shall remain with
Advertiser or its third party licensors.
4.2 TRADEMARKS. Neither party may use the other party's trademarks,
service marks, trade names, logos, or other commercial or product designations
(collectively, "MARKS") for any purpose whatsoever without the prior written
consent of the other party. Notwithstanding the foregoing, Advertiser hereby
grants to Web Host a non-exclusive, nontransferable, royalty-free, worldwide
license to use Advertiser's Marks on the Website for the purposes of marketing,
promotion, and content directories or indexes, and in electronic or printed
advertising, publicity, press releases, newsletters and mailings about the
Website or Web Host.
5. ADVERTISER REPRESENTATION AND WARRANTIES.
Advertiser is solely responsible for any legal liability arising out of or
relating to the Ad and any material to which users can link through the Ad.
Advertiser represents and warrants that no Ad will: (a) infringe on any third
party's copyright, patent, trademark, trade secret
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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or other proprietary rights or right of publicity or privacy; (b) violate any
law, statute, ordinance or regulation, including without limitation the laws
and regulations governing export control; (c) be defamatory or trade libelous;
(d) be pornographic or obscene; (e) violate any laws regarding unfair
competition, antidiscrimination or false advertising, or (e) contain viruses,
trojan horses, worms, time bombs, cancelbots or other similar harmful or
deleterious programming routines. Advertiser agrees to defend, indemnify and
hold harmless Web Host and its directors, officers, agents and employees for
any and all losses, costs, liabilities or expenses (including without
limitation reasonable attorneys' and expert witnesses' fees) incurred or
arising from (a) any breach of the foregoing representations and warranties,
(b) any claim arising from the sale or license of Advertiser's goods or
services, or (c) any other act, omission or misrepresentation by Advertiser.
Web Host may participate in the defense at its expense.
6. DISCLAIMER OF WARRANTIES.
Web Host provides the Website and all services performed hereunder "AS IS"
and without any warranty of any kind. Web Host does not guarantee continuous or
uninterrupted display or distribution of the Ad. In the event of interruption
of display or distribution of the Ad, Web Host's sole obligation shall be to
restore service as soon as reasonably possible.
7. LIMITATIONS ON LIABILITY.
IN NO EVENT SHALL WEB HOST BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL
OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO SUCH DAMAGES ARISING
FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY), OR
FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST DATA OR LOST
PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. UNDER NO
CIRCUMSTANCES SHALL WEB HOST BE LIABLE TO ADVERTISER OR ANY THIRD PARTIES FOR
AN AMOUNT GREATER THAN THE AMOUNTS RECEIVED FOR THE SPECIFIC AD GIVING RISE TO
LIABILITY.
8. TERM AND TERMINATION.
The term of this Agreement shall commence on April 1, 1999 and shall
continue for a period of twelve (12) months thereafter (the "TERM"); provided,
however, that in the event Web Host fails to deliver the number of banner
impressions, button impressions, logout page transfers or inbox direct signups
during March 2000 specified in the Schedule, Web Host shall have thirty (30)
days after the end of the Term to deliver the required Additional Impressions.
Either party may terminate this Agreement upon [ ** ] written notice,
with or without cause. Additionally, Web Host may, by providing written notice,
terminate this Agreement immediately if the monthly fees are not paid when due.
Sections 5, 6, 7, 8, 9, 10 and 11, and any obligations of any advertising
agent, shall survive termination of this Agreement.
9. GOVERNING LAW.
This Agreement will be governed and construed in accordance with the laws
of the State of Washington without giving effect to principles of conflict of
laws.
10. ENTIRE AGREEMENT.
This Agreement, including Exhibit A attached hereto, sets forth the entire
understanding and agreement of the parties and supersedes any and all oral or
written agreements or understandings between the parties as to the subject
matter of this Agreement. This Agreement may be modified only by a writing
signed by both parties.
11. GENERAL.
If any provision of this Agreement is held to be invalid or unenforceable
for any reason, the remaining provisions will continue in full force without
being impaired or invalidated in any way. This Agreement may not be assigned by
Advertiser without Web Host's prior written consent and any such attempted
assignment shall be void and of no effect. The parties' rights and obligations
will bind and inure to the benefit of their respective successors, heirs,
executors and administrators and permitted assigns. Web Host may subcontract
all or a portion of its responsibilities hereunder. The parties to this
Agreement are independent contractors, and no agency, partnership, joint
venture or employee-employer relationship is intended or created by this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
WEB HOST: ADVERTISER:
By: /s/ XXXXXX X. XXXXXX By: /s/ XXX XXXXXXX
------------------------------------ -----------------------------------
Title: Vice President of Media Sales Title: Chief Marketing Officer
--------------------------------- --------------------------------
Address: 0000 Xxxxx Xxxxxxx Xxxx., #000 Address: 000 XX Xxxxxxx Xxxxx
------------------------------- ------------------------------
Xxxxxxxx Xxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
------------------------------- ------------------------------
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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EXHIBIT A
TECHNICAL SPECIFICATIONS
Run of Site Banner Ad Rotation: 468 x 60, 15k maximum file size
Button Ad Placement on Navigation Bar: 100 x 110, 10k maximum file size
Log-out Screen Jump page Placement: [ ** ]
Opt-In Email Program: [ ** ]
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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WEBSITE ADVERTISING AGREEMENT
THIS WEBSITE ADVERTISING AGREEMENT (the "AGREEMENT") is made as of
March 31, 1999, by and between XXX.XXX, Inc., a Delaware corporation ("WEB
HOST"), and Xxxxxxx.xxx, a Washington corporation ("ADVERTISER"), for the
purpose of providing Advertiser with advertising space on Web Host's Netscape
WebMail website (the "WEBSITE"). In the event that an advertising agent is
executing this Agreement on behalf of Advertiser, such party executing this
Agreement as an agent shall be jointly and severally responsible for all amounts
owed hereunder.
1. DELIVERY OF AD.
Advertiser will be solely responsible for, and will deliver to Web
Host, Advertiser's content for display on the Website (each delivery is an
"AD"). The Ad will be displayed on the Website and will be an active hypertext
link. Web Host may, in its sole discretion, refuse to display an Ad or may
remove an Ad or accompanying hypertext link as it deems. All ads must meet the
Technical Specifications outlined in Exhibit A.
2. FEES; IMPRESSIONS.
2.1 FEE AND IMPRESSION SCHEDULE. Advertiser shall pay Web Host
advertising fees, and Web Host shall use commercially reasonable efforts to
deliver banner impressions, button impressions, logout page transfers and inbox
direct signups, according to the following monthly schedule (the "SCHEDULE"):
------------------------------------------------------------------------------------
BANNER BUTTON EMAILS LOGOUT TOTAL COST
IMPRESSIONS IMPRESSIONS
------------------------------------------------------------------------------------
[ ** ] [ ** ] [ ** ] [ ** ] $ [ ** ]
------------------------------------------------------------------------------------
2.2 PAYMENT; TAXES. Advertiser shall pay the advertising fees set
forth in the Schedule within thirty (30) days after receipt of the invoice.
Such fees are exclusive of, and Advertiser shall pay, all sales, use, excise
and other taxes which may be levied upon either party in connection with this
Agreement or on activities occurring on the Website, except for taxes based on
Web Host's net income.
2.3 IMPRESSION DELIVERY. In the event Web Host delivers fewer banner
impressions, button impressions, logout page transfers or inbox direct signups
during any month than is required in the Schedule, Web Host shall deliver, in
the subsequent month, in addition to the number of banner impressions, button
impressions, logout page transfers and inbox direct signups specified in the
Schedule for such subsequent month, the number of banner impressions, button
impressions, logout page transfers and inbox direct signups by which it fell
short during the previous month (the "ADDITIONAL IMPRESSIONS"). If Web Host
fails to deliver the Additional Impressions during such subsequent month, then
the advertising fee due for such subsequent month shall be decreased
proportionately.
3. REPORTS.
Within fifteen (15) days following the end of each calendar month, Web
Host shall invoice Advertiser for the fees due for such month. Each invoice
will be accompanied by a report detailing the number of (i) banner impressions,
(ii) button impressions, (iii) logout page transfers and (iv) inbox direct
signups received for each Ad during such month (each a "REPORT"). Advertiser
acknowledges and agrees that information in any such Report will represent
historical data only, and will not be a guarantee of the number of banner
impressions, button impressions, logout page transfers or inbox direct signups
that will be received by Advertiser in the future.
4. LICENSE.
4.1 AD LICENSE. For the term of this Agreement, Advertiser hereby
grants to Web Host a non-exclusive, royalty-free, worldwide license to
reproduce, distribute, create derivative works of, publicly perform, publicly
display and digitally perform the Ad on or in conjunction with the Website. Web
Host may make a reasonable number of archival or back-up copies of the Ad.
Title to and ownership of all intellectual property rights of the Ad shall
remain with Advertiser or its third party licensors.
4.2 TRADEMARKS. Neither party may use the other party's trademarks,
service marks, trade names, logos, or other commercial or product designations
(collectively, "MARKS") for any purpose whatsoever without the prior written
consent of the other party. Notwithstanding the foregoing, Advertiser hereby
grants to Web Host a non-exclusive, nontransferable, royalty-free, worldwide
license to use Advertiser's Marks on the Website for the purposes of marketing,
promotion, and content directories or indexes, and in electronic or printed
advertising, publicity, press releases, newsletters and mailings about the
Website or Web Host.
5. ADVERTISER REPRESENTATION AND WARRANTIES.
Advertiser is solely responsible for any legal liability arising out
of or relating to the Ad and any material to which users can link through the
Ad. Advertiser represents and warrants that no Ad will: (a) infringe on any
third party's copyright, patent, trademark, trade secret
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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or other proprietary rights or right of publicity or privacy; (b) violate any
law, statute, ordinance or regulation, including without limitation the laws
and regulations governing export control; (c) be defamatory or trade libelous;
(d) be pornographic or obscene; (e) violate any laws regarding unfair
competition, antidiscrimination or false advertising, or (e) contain viruses,
trojan horses, worms, time bombs, cancelbots or other similar harmful or
deleterious programming routines. Advertiser agrees to defend, indemnify and
hold harmless Web Host and its directors, officers, agents and employees for
any and all losses, costs, liabilities or expenses (including without
limitation reasonable attorneys' and expert witnesses' fees) incurred or
arising from (a) any breach of the foregoing representations and warranties,
(b) any claim arising from the sale or license of Advertiser's goods or
services, or (c) any other act, omission or misrepresentation by Advertiser.
Web Host may participate in the defense at its expense.
6. DISCLAIMER OF WARRANTIES.
Web Host provides the Website and all services performed hereunder "AS
IS" and without any warranty of any kind. Web Host does not guarantee
continuous or uninterrupted display or distribution of the Ad. In the event of
interruption of display or distribution of the Ad, Web Host's sole obligation
shall be to restore service as soon as reasonably possible.
7. LIMITATIONS ON LIABILITY.
IN NO EVENT SHALL WEB HOST BE LIABLE FOR ANY SPECIAL, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO SUCH DAMAGES
ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT
LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST
DATA OR LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
UNDER NO CIRCUMSTANCES SHALL WEB HOST BE LIABLE TO ADVERTISER OR ANY THIRD
PARTIES FOR AN AMOUNT GREATER THAN THE AMOUNTS RECEIVED FOR THE SPECIFIC AD
GIVING RISE TO LIABILITY.
8. TERM AND TERMINATION.
The term of this Agreement shall commence on April 1, 1999 and shall
continue for a period of twelve (12) months thereafter (the "TERM"); provided,
however, that in the event Web Host fails to deliver the number of banner
impressions, button impressions, logout page transfers or inbox direct signups
during March 2000 specified in the Schedule, Web Host shall have thirty (30)
days after the end of the Term to deliver the required Additional Impressions.
Either party may terminate this Agreement upon [ ** ] written notice,
with or without cause. Additionally, Web Host may, by providing written notice,
terminate this Agreement immediately if the monthly fees are not paid when due.
Sections 5, 6, 7, 8, 9, 10 and 11, and any obligations of any advertising
agent, shall survive termination of this Agreement.
9. GOVERNING LAW.
This Agreement will be governed and construed in accordance with the
laws of the State of Washington without giving effect to principles of conflict
of laws.
10. ENTIRE AGREEMENT.
This Agreement, including Exhibit A attached hereto, sets forth the
entire understanding and agreement of the parties and supersedes any and all
oral or written agreements or understandings between the parties as to the
subject matter of this Agreement. This Agreement may be modified only by a
writing signed by both parties.
11. GENERAL.
If any provision of this Agreement is held to be invalid or
unenforceable for any reason, the remaining provisions will continue in full
force without being impaired or invalidated in any way. This Agreement may not
be assigned by Advertiser without Web Host's prior written consent and any such
attempted assignment shall be void and of no effect. The parties' rights and
obligations will bind and inure to the benefit of their respective successors,
heirs, executors and administrators and permitted assigns. Web Host may
subcontract all or a portion of its responsibilities hereunder. The parties to
this Agreement are independent contractors, and no agency, partnership, joint
venture or employee-employer relationship is intended or created by this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
WEB HOST: ADVERTISER:
By: /s/ XXXXXX X. XXXXXX By: /s/ XXX XXXXXXX
------------------------------------ -----------------------------
Title: Vice President of Media Sales Title: Chief Marketing Officer
--------------------------------- --------------------------------
Address: 0000 Xxxxx Xxxxxxx Xxxx., #000 Address: 000 XX Xxxxxxx Xxxxx
------------------------------- ------------------------------
Xxxxxxxx Xxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
------------------------------- ------------------------------
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
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EXHIBIT A
TECHNICAL SPECIFICATIONS
Run of Site Banner Ad Rotation: 468 x 60, 15k maximum file size
Button Ad Placement on Navigation Bar: 100 x 110, 10k maximum file size
Log-out Screen Jump page Placement: [ ** ]
Opt-In Email Program: [ ** ]
** INDICATES CONFIDENTIAL TREATMENT REQUESTED.
i
