EXHIBIT 10.12
24/7 MEDIA INC.
NETWORK AFFILIATION AGREEMENT
1. AFFILIATION.
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The undersigned (hereinafter the "Network Affiliate"), the operator and
owner of the Internet website(s) (the "Website(s)") specified on the signature
pages hereto, hereby subscribes to be a member of the internet advertising
network owned and operated by 24/7 Media, Inc., a Delaware corporation ("24/7"),
and hereby grants solely to 24/7 the right and privilege to sell the Advertising
Availabilities (as hereinafter defined) of the Network Affiliate to advertisers,
advertising agencies, buying services or others ("Advertisers"). Advertising
Availabilities include advertising banners, sponsorships, and those segments or
spaces reasonably suitable for the display of advertising and to which the Tags
(as defined in 2(A) below) shall be affixed as provided herein, on those pages
or screens on the Website(s) owned and operated by the Network Affiliate
(individually, a Page or Screen, collectively, the Pages or Screens).
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
(the Term) and only for use in the performance of this Agreement, with unique
tags in HTML/Java or other appropriate language (the Tags) (in which the Network
Affiliate will not have or acquire any proprietary or property rights or
interests, including any intellectual property rights), which will enable 24/7
to serve advertising to the Pages and Screens;
B. utilize its best efforts to sell the Advertising Availabilities on
the Pages and Screens to Advertisers at such prices as 24/7 shall deem
appropriate;
C. serve advertising to the Pages and Screens;
D. provide the Network Affiliate with notice, via posting on 24/7
provided software of new advertisements that have been solicited by 24/7 to be
displayed on the Network Affiliate's Website, and to use its best efforts to
honor any decision by Network Affiliate to decline any advertisement, 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 number of paid advertisements
delivered to each Page or Screen and the revenue (subject to
billing corrections and
* Certain information in this Exhibit has been omitted
and filed separately with the Commission. Confidential
treatment has been requested with respect to the omitted
portions.
adjustments) produced thereby. All such records, including data,
statistical information or other traffic analysis, produced or
provided by 24/7 shall be jointly owned by Network Affiliate and
24/7,
F. Information on the Network Affiliate's including, audience
numbers, viewership, inventory, site performance shall only be
used in aggregate form for the purpose of generating sales by
24/7, and
F. 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:
A. that during the Term, it shall use its best efforts to continue
and maintain its Website(s), Pages, and Screens;
B. to insert the Tags on each Page or Screen and only on such Pages
or Screens in such a manner as to assure that the advertisement to be affixed to
said Tag is fully and clearly visible on the first screen viewed when the Page
or Screen is viewed at a 640 x 480 pixel resolution;
C. that the Network Affiliate's total Advertising Availabilities,
excluding availabilities allocated to barter agreements, constitute not less
than [*] ([*]) percent of the Network Affiliate's total number of Pages and
Screens served (the Inventory);
D. to notify 24/7 within one (1) business day from the time of notice
of any new advertisement is given of the Network Affiliate's rejection of any
new advertisement. Failure to provide timely notice of rejection of the new
advertisement shall be deemed acceptance thereof.
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 Website(s), Pages, and
Screens as is reasonably available to the Network Affiliate and appropriate for
use by 24/7 for the sale of Advertising Availabilities; and
F. not to engage, contract with, license or permit any person, firm
or entity other than 24/7 and its employees, or Network Affiliate's internal
sales force to sell, or represent the Network Affiliate for the sale of,
Advertising Availabilities in the USA on any Website, Page or Screen owned or
operated by the Network Affiliate in or on which the Advertising Availabilities
appear or are a part, as the case may be provided however that in cases where
Network Affiliate has or makes a partnership agreement that allows a third party
site or it's designated representative to sell the co-branded availabilities
hosted by Network Affiliate then this section will not apply.
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* Certain information on this page has been omitted
and filed separately with the Commission. Confidential
treatment has been requested with respect to the omitted
portions.
4. PAYMENTS.
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A. All cash and other consideration generated from the sale of
Advertising Availabilities by 24/7 (the Payment) shall be payable directly to
24/7 by Advertisers. 24/7 shall pay to the Network Affiliate [*] percent of the
Payment received by 24/7 for the sale of Advertising Availabilities, less those
advertising agency commissions actually retained by agencies or paid by 24/7 to
agencies with respect to the sale of Advertising Availabilities on the Network
Affiliate's Website(s).
B. The Network Affiliate may elect to have 24/7 serve advertisements
not sold by 24/7, for which Network Affiliate will pay 24/7 a serving fee of
$[*] cost per thousand ("CPM"). Advertisements served but not sold by 24/7 may
constitute no more than [*] percent ([*]) of Inventory as defined in Section
3(C) above.
C. 24/7 agrees to deliver to the Network Affiliate, within forty-five
(45) days following the close of each calendar month; (i) a statement showing
revenues earned by the Network Affiliate during said calendar month, (ii) a
payment representing the portion of the Network Affiliate's earnings currently
due based upon collections.
D. In the event any Advertiser remits any Payment 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.
5. INTELLECTUAL PROPERTY. All hardware, software, programs, codes, trade
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names, technology, intellectual property, licenses, patents, trademarks,
copyrights, trade secrets, know-how, and processes (collectively, the 24/7
Technology) used to serve the Network Affiliate with advertising under this
Agreement shall remain the sole property of 24/7. Network Affiliate shall have
no rights, title or interest in the 24/7 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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it shall not 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 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; and (v) in a confidential disclosure made in
connection
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* Certain information on this page has been omitted
and filed separately with the Commission. Confidential
treatment has been requested with respect to the omitted
portions.
with a contemplated financing, merger, consolidation or sale of capital stock of
24/7 or the Network Affiliate.
7. TERM. The term of this Agreement (the "Term") shall commence on the
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Effective Date and shall continue in effect until either party terminates it.
Termination will be effective four (4) months after the date on which written
notice is given, as determined under the provisions of Section 12 below, to the
other party, by certified mail, return receipt requested.
8. CONTENT OF WEBSITE. Network Affiliate warrants and represents that the
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Website Pages, and Screens (and their respective content) will not in any way
disparage 24/7 or the Advertisers whose advertisements are solicited through
this Agreement. It is understood and agreed that the report or publication of
news, text in chat rooms and news events shall not, for the purposes hereof, be
considered disparaging in any way. Network Affiliate further covenants and
agrees not to include or provide via its Website, Pages or Screens, any material
that is or may be considered: (i) libelous, 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 Website(s), Pages and Screens, to comply with
all laws, statutes, ordinances, and regulations.
9. INDEMNIFICATION. 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. 24/7 shall indemnify and hold harmless
the Network Affiliate, 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.
10. NO POACHING. Network Affiliate and 24/7 agrees that, for a period of
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one year from the end of the Term, neither entity nor its' affiliates will
solicit or recruit the services of any employees of either company, or hire any
such employees.
11. NO WAIVER. This Agreement shall not be waived, modified, assigned or
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transferred except by a written consent to that effect signed by Network
Affiliate and 24/7.
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Network Affiliate agrees that if it assigns or transfers this Agreement, it
shall cause such successor, assignee, or transferee to assume all of the Network
Affiliate's 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
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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 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
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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.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
this 1st day of March, 1998 (the "Effective Date").
24/7 MEDIA, INC.
By: /s/ Signature Illegible
Title: VP Business Development
E-mail address: xXXXXX@000XXXXX.xxx
NETWORK AFFILIATE:
Name of Website: Talk City
Website URL: xxx.xxxxxxxx.xxx
Corporate Name: Liveworld Productions
Address: 000 Xxxxxxx Xxxx Xxxxx
Xxxxxxx: Xxxxx 000, Xxxxxxxx, XX 00000.
By: /s/ Xxxxx Xxxxxxxx
Name: CEO & President Xxxxx Xxxxxxxx
Title: ____________________
E-mail address: Xxxxxxxx@xxxxxxxxx.xxx
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