(27)(vi) Network Affiliation Agreement between
Electronic Business Network, Inc. and
24/7 Media, Inc. dated July 27, 1999.
24/7 MEDIA INC.
NETWORK AFFILIATION
AGREEMENT
WHEREAS, the undersigned (hereinafter the "Network Affiliate") is
the operator and owner of the Internet Web site(s) (the "Web Site") specified on
the signature pages hereto:
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
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 and sponsorships
("Advertising") for display on pages, screens, an other segments or spaces on
Web site reasonable suitable for the display of advertising and to which the
Tags (as defined in Section 2(A) below) can be affixed as provided herein (the
"Pages):
WHEREAS, Network Affiliate and 24/7 wish to include the Web Site in
the 24/7 Network;
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.
The Network Affiliate hereby grants to 24/7 the worldwide exclusive right
to sell all Advertising on the Web Site.
2. Obligations of 24/7.
In furtherance of the foregoing, 24/7 covenants and agrees.
A. To provide the Network Affiliate, during the term of this Agreement
(the "Term") and only for use in the performance of this Agreement, with
unique tags in HTML/Java or other appropriate languages (the "Tabs") which
shall be affixed appropriately by Network Affiliate to the Web Site's
Pages to enable 24/7 to serve Advertising to those Pages;
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B. To utilize its best efforts to sell to Advertisers, Advertising on the
Web Site's pages, (including sales of the Web Site as a single site,
through multi-site packages and through the 24/7 Network package, at such
prices as 24/7 shall deem appropriate);
C. To serve Advertising to the Web Site's Pages;
D. To 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's Pages, 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;
E. To 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's Pages and the revenue produced (subject to billing corrections
and adjustments) thereby; all such records, including data, statistical
information or other traffic analysis, produced or provided by 24/7 shall
be the joint property of 24/7 and Network Affiliate;
F. To deliver to the Network Affiliate a monthly statement showing
revenues earned by Network Affiliate during the calendar month and any
sum(s) due the Network Affiliate on account thereof pursuant to Section 4
hereof; and
G. To 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.
The Network Affiliate covenants and agrees:
A. To use its best efforts to continue and maintain the Web Site and the
Web Site's Pages in a manner consistent with the intent and purpose of the Web
Site;
B. To insert the Tags on each of the Web Site's Pages an only on such
Pages in such a manner as to assume that the Advertising to be affixed to said
Tag is fully and clearly visible on the first Web Site page viewed when that
Page is viewed at a 640 X 480 pixel resolution;
C. To insert a button with the 24/7 logo on the Web Site's Home Page
directing potential advertisers to the 24/7 web site;
D. To notify 24/7 within one business day form the time of notice of any
new Advertising is given of the Network Affiliate's 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;
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E. To furnish 24/7 with all subscribership, viewership, inventory, and
usage reports, reviews and audience studies, deliveries, census requirements,
and any other information regarding the Web Site and the Web Site's Pages as it
is reasonably available to the Network Affiliate and appropriate for use by 24/7
for the sale of Advertising; and
F. Not to engage, contract with, license or permit any person, firm or
entity (including the Network Affiliate and its employees) other than 24/7 and
its employees to sell, or represent the Network Affiliate for the sale of,
Advertising on the Web Site and to refer all advertising inquiries to 24/7.
4. Payments.
A. Advertisers shall be directed to pay 24/7 all cash and othe
rconsideration generated from the sale of Advertising by 24/7 and a percentage
shall be retained by 24/7 for the duration of the sponsorship regardless of the
date of termination of this Agreemnt). Within 45 days after the end of each
calendar month, 24/7 shall pay to the Ntwork Affiliate the Network Affiliate's
entire share of all revenue generated during that month, reduced only by any
advertising agency commissions retained by the agency or paid by 24/7, and by
24/7's commission for the sale of Advetising which shall be determined in
accordance with the following chart:
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Number of Impressions Percentage Retained by 24/7
Delivered in Proceeding Month for Current Month
--------------------------------------------------------------------------------
999,999 to 1,999,999 55%
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2,000,000 to 2,999,999 50%
--------------------------------------------------------------------------------
3,000,000 to 4,999,999 45%
--------------------------------------------------------------------------------
5,000,000 to 14,999,999 40%
--------------------------------------------------------------------------------
15,000,000+ 35%
--------------------------------------------------------------------------------
Network Affiliate represents and warrants that the number of impressions served
int he month preceeding the Effective Date was $15,000,000,and thus, subject to
verification of monthly ad immpressions, the initial percentage to be retained
by 24/7 is 35%. The percentage retained by 24/7 shall be lowered effective upon
network Affiliate's notifying 24/7 that the number of impressions delivered in
the preceeding month requires the percentage retain to be adjusted.
B. The Netowrk Affiliate may elect to have 24/7 serve promotional or
barter advertisements not sold by 24/7, for which Network Affililate wil lpay
24/7 a serving fee of $2.50 cost per thousand ("CPM"); such promotional and
barter advertisements shall not exceed thirty percent (30%) of the Pages.
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C. 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.
D. Network Affiliate will be obligated to compensate 24/7 Media prior to
termination date.
E. Network Affiliate acknowledges that 24/7 has an ownership interest in
"xxxxxxxxxx.xxx" e-comerce service (the "Service") and that the Service includes
the placement of banners on the 244/7 Network, generally on a "cost per
transaction" basis an on terms no more favorable to xxxxxxxxxx.xxx than would be
made available to a party not affiliated with 24/7.
F. Network Affiliate also acknowledges that 24/7 owns and operates the
Profile database of demographic profiles (the "Database"). Network Affiliate
understands and agrees that the Payment in respect of Advertising sold that
employs the Database shall be calculated by subtracting from gross revenue a fee
for use of the Database, which fee shall be disclosed to Network Affiliate prior
to implementation and shall reasonably reflect 24/7's cost of developing and
operating the Database. Network Affiliate shall have the option not to accept
Advertising that the employs the Database.
5. Intellectual Property. All hardware, software, programs, codes, trade names,
technology, intellectual property, licenses, patents, trademarks, copyrights,
trade secrets, knowhow, and processes (collectively, the "24/7 Technology") used
by 24/7 under this Agreement shall remain the sole property of Network
Affiliate. 24/7 shall have no rights, title or interest in the Network Affiliate
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
neither party shall disclose to any third party (other than its employees and
directors, in their capacity as such, and the employees and directors of any
affiliate on a need to know basis so long as they are bound by the terms 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 or 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; and
(v) 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
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or proprietary includes, but is not limited to, information about the 24/7
Network, 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.
A. The term of this Agreement (the "Term") shall commence on the Effective
Date and shall continue for at least one year from the Effective Date. Either
party may terminate the Agreement by giving notice no earlier than eight months
after the Effective Date. Termination will be effective four (4) months after
the date on which written notice is given, as determined under the provisions of
Section 13 below, to the other party.
B. Notwithstanding Section 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 period of
30 days after written notice of such breach from the non-breaching party to the
breaching party.
C. Notwithstanding Section A or 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 network Affiliate of its covenants under
Section 8 of this Agreement, which material breach continues without cure for a
period of more than 48 hours after written notice of such breach from 24/7 to
network Affiliate of such breach, or which material breach occurs on more than
two occasions.
D. Notwithstanding Section A or B above, this Agreement may be
terminated by 24/7 on 30 days' prior written notice to the Network Affiliate if
the number of Impressions in any three consecutive months is less than one
million or if the average click through rate for any three-month period is less
than 0.25%.
8. Content of Web Site. Network Affiliate covenants and agrees not to include or
provide via the Web Site or the Web Site's Pages 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. Network Affiliate further covenants and agrees, with
respect to the operation of its Web Site and its Pages, to comply with all laws,
statutes, ordinances, and regulations.
9. Indemnification. Network Affiliate shall indemnify and hold harmless 24/7,
its advertisers and other suppliers and any related third parties, against and
in respect of any and all third party claims, suits, actions, proceeding (formal
and informal), investigations, judgments, deficiencies, damages, settlements,
liabilities, and legal and other expenses (including reasonable
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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. 24/7 shall
indemnify and hold harmless the Network Affiliate, against and in respect of any
and all third party 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.
10. No Poaching. Network Affiliate agrees that, during the Term and for a period
of one year from the end of the Term, neither it nor its affiliates will solicit
or recruit the services of any 24/7 employees, or hire any such employees.
11. No Waiver. This Agreement shall not be waived, modified, assigned or
transferred except by a written consent to that effect signed by Network
Affiliate and 24/7. Network Affiliate agrees that if it assigns or transfers
this Agreement, it shall cause such successive assignee, or transferee to assume
all of the rights and obligations hereunder. Any assignment, transfer, or
assumption shall not relieve the Network Affiliate of liability hereunder.
12. Governing Law. This Agreement shall be governed by and construed in
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 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 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 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
other party nor be deemed to have defaulted under or breached this Agreement for
failure or delay in fulfilling
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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
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 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
provision.
18. Dispute Resolution. Any controversy or claim arising out of or relating to
the Agreement, or the breach thereof, shall be settled exclusively by
arbitration. Such arbitration shall be conducted before a single arbitrator in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association then in effect. If arbitration is commenced by 24/7, it shall take
place in the city in the continental United States in which the principal U.S.A.
corporate offices of Network Affiliate are located. If Network Affiliate has no
corporate offices in the U.S.A. or if arbitration is commenced by Network
Affiliate, then arbitration shall take place in New York, New York. Judgment may
be entered on the arbitrator's award in any court having jurisdiction, and the
parties irrevocably consent to the jurisdiction of such court for that purpose.
The parties waive personal service in connection with any such arbitration; any
process or other papers under this provision may be served outside the home
state of Network Affiliate or New York by registered mail, return receipt
requested, or by personal service, provided a reasonable time for appearance or
response is allowed. All decisions of the arbitrator shall be final and binding
on the parties. The parties shall equally divide all costs of the American
Arbitration Association and the arbitrator. Each party shall bear its own legal
fees in any dispute. The arbitrator may grant injunctive or other relief.
19. Independent Contractors. 24/7 Media and Network Affiliate shall each act as
independent contractors. Neither party shall exercise control over the
activities and operations of the other party. 24/7 media 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
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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
27th day of July, 1999 (the "Effective Date").
24/7 MEDIA, INC.
By: /S/ Xxxxxxxxx Xxxxx
-------------------
Name: Xxxxxxxxx Xxxxx
Title: Director, Business Development
E-mail address: xxxxxx@000xxxxx.xxx
NETWORK AFFILIATE:
Name of Web Site: Capital Publishing
--------------------------
Web Site URL: xxx.xx-xxxx.xxx
------------------------------
Corporate Name of Web Site Owner: Electronic Business Networks, Inc.
Address: 0000 X. Xxxxxxx Xxx. Xx.
--------------------------------
Address: Xxxxxxxxx Xxxxx, XX 00000
--------------------------------
By: /S/ Xxxxxxx Taufero
--------------------------------
Name: Xxxxxxx Taufero
Sales Director
E-mail address: xxxxxxx@xxxxxxx.xxx
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