EXHIBIT 10.22
CONFIDENTIAL TREATMENT **Confidential treatment has been
HAS BEEN REQUESTED FOR requested with respect to the
CERTAIN PORTIONS OF THIS information contained within the
DOCUMENT "[**]" markings. Such marked portions
have been omitted from this filing and
have been filed separately with the
Securities and Exchange Commission
December 29,1999
Xx. Xxxx Xxxxxxxxxx
Business Development
Desktop com
000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Re: Xxxxxxx.xxx Letter Agreement
----------------------------
Dear Xxxx:
This letter agreement is intended to constitute our binding agreement as
to its terms, for the foundation for a business alliance between Xxxxxxx.xxx and
xxxxxxxx.xxx.
Xxxxxxxx.xxx desires to make Xxxxxxx.xxx's services available to users of
the xxxxxxxx.xxx sites, which include XXX.xxx, XxxxxXxxxx.xxx,
XxxxxXxxxxxxx.xxx/XxxxxxXxxxx.xxx and the Xxxxxxxx.xxx affiliates Xxxxxxx.xxx
desires to top into xxxxxxxx.xxx's 2.6 million registered users and 4.4 million
unique visitors (Media Metrix 11/99) and convert xxxxxxxx.xxx users into
registered users of Xxxxxxx.xxx. The parties intend, therefore, to jointly
develop a "Customer Acquisition Program" to be implemented on the xxxxxxxx.xxx
sites. It is the intention of the parties to generate registered users for
Xxxxxxx.xxx through xxxxxxxx.xxx's provision of a series of links, buttons,
banners, e-mail blasts and other promotional efforts on the xxxxxxxx.xxx sites.
The terms set forth below will constitute the entire agreement between
the parties.
We agree as follows:
-------------------
. parties acknowledge that the Affiliate Commerce Portal may not be
fully operational on February 1, 2000. In that event buttons, banners,
or mutually approved alternative advertising vehicle will be used to
generate the guaranteed impressions until such time as the Affiliate
Commerce Portal is launched.
. xxxxxxxx.xxx will allocate the guaranteed impressions evenly over the
term of this agreement.
. xxxxxxxx.xxx's obligation and Xxxxxxx.xxx's sole right in the event
that xxxxxxxx.xxx. fails to deliver the above-listed number of
guaranteed impressions will be for xxxxxxxx.xxx to deliver any
deficiency, as soon as practicable in subsequent months.
. Xxxxxxx.xxx will control the distribution of the guaranteed
impressions across the snowball.com-sites. Xxxxxxx.xxx shall provide
xxxxxxxx.xxx with an initial requested distribution prior to the
commencement of this agreement on February 1, 2000. Xxxxxxx.xxx may
change the requested allocation at any time upon reasonable notice to
xxxxxxxx.xxx; provided that, Xxxxxxx.xxx acknowledges xxxxxxxx.xxx may
not be able to make a requested reallocation in any given month due to
inventory constraints. xxxxxxxx.xxx will provide Xxxxxxx.xxx notice of
such constraints within a reasonable time of receiving a request to
change the allocation of impressions.
E-mail Promotions:
------------------
. Xxxxxxx.xxx will receive a text-ink within the "E-mail Blasts" that
xxxxxxxx.xxx sends out each month. xxxxxxxx.xxx will guarantee
delivery of [**] emails to xxxxxxxx.xxx registered users pursuant to
the delivery schedule specified to xxxxxxxx.xxx users at the time of
registration.
. Xxxxxxx.xxx and Xxxxxxxx.xxx will jointly develop the text of the
message to accompany the text link to be delivered with xxxxxxxx.xxx,
E-mail Blasts. xxxxxxxx.xxx will provide Xxxxxxx.xxx with an
opportunity to review the message prior to distribution of the message
to xxxxxxxx.xxx registered users.
Additional Marketing Opportunities:
-----------------------------------
. xxxxxxxx.xxx agrees to include Xxxxxxx.xxx in mutually pre-approved
press releases.
Support:
--------
. xxxxxxxx.xxx will assign a dedicated Client Services Manager to
monitor and maximize use of Xxxxxxx.xxx content and services by
xxxxxxxx.xxx users.
. The Client Services Manager will provide Xxxxxxx.xxx with regular
reports in electronic format of current impressions and performance
under this agreement.
. Xxxxxxx.xxx will be able to change creative throughout this agreement
and will not be limited to a defined number of changes.
Term:
-----
. The term of this Agreement will be [**], commencing February 1, 2000.
However, should the start date (i.e. the date on which xxxxxxxx.xxx.
begins serving Xxxxxxx.xxx's ads), be delayed for more than 30 days,
then the term will automatically be renegotiated in good faith by the
parties. However, any change in the term will be subject to the
parties' written agreement.
**Confidential treatment has been
requested with respect to the
information contained within the
"[**]" markings. Such marked
portions have been omitted from
this filing and have been filed
separately with the Securities and
Exchange Commission
2
Compensation:
-------------
. Xxxxxxx.xxx will pay xxxxxxxx.xxx a [**] partnership fee, with [**]
payable up front upon signing and [**] additional payments of [**] per
month to complete payment. Late payments will bear interest at the
rate of [**] per month, or the highest rate permitted by applicable
laws, whichever is lower.
Performance Benchmark:
---------------------
The Goal of this program is for xxxxxxxx.xxx to deliver users to the
Xxxxxxx.xxx site for registration and grow the membership database for
Xxxxxxx.xxx.
. After two months, xxxxxxxx.xxx and Xxxxxxx.xxx will meet to review
and reform the partnership program, if needed, in order to maximize
performance. This review will include a review of the effectiveness
of the marketing and promotional activities set forth in this
Agreement in delivering users to the Xxxxxxx.xxx site and services.
. Provided that [**] of the impressions for which xxxxxxxx.xxx has
guaranteed delivery [**] have been delivered by the end of the second
month after the effective date, if less than [**] xxxxxxxx.xxx users
have clicked-through a banner, button, button link, or e-mail provided
link to a Xxxxxxx.xxx site or service ("Click-Throughs") at the end of
the second month after the effective date, then Xxxxxxx.xxx shall have
a right to commence a one month probationary period upon written
notice to xxxxxxxx.xxx
. The probationary period shall run from the end of the second
month after the effective date to the end of the third month
after the effective date.
. At the beginning of the probationary period, the parties will
meet and mutually agree to an increased number of banners,
buttons, e-mail blasts, and other promotional efforts, over the
average monthly impressions delivered in the prior two months,
that will be likely to achieve a total of [**] ClickThroughs by
the end of the probationary period, and xxxxxxxx.xxx will deliver
the agreed increased number of impressions during the
probationary period. The impressions guaranteed, during the
probationary period are not to exceed twice the initially
guaranteed impression level for that period [**]. The number of
impressions delivered during the probationary period over the
average monthly impressions delivered in the prior two months
will not count toward the guaranteed annual impressions set forth
in this Agreement,
**Confidential treatment has been
requested with respect to the
information contained within the
"[**]" markings. Such marked
portions have been omitted from
this filing and have been filed
separately with the Securities and
Exchange Commission.
3
. If at the end of the probationary period fewer than [**]
xxxxxxxx.xxx users have clicked through to a Xxxxxxx.xxx site or
service, Xxxxxxx.xxx shall have the right to terminate the
agreement upon written notice effective at the end of the
probationary period, unless the parties mutually agree to extend
the probationary period and the heightened promotional efforts
agreed to during the probationary period. If this agreement is
terminated pursuant to this section, Xxxxxxx.xxx's payment
obligation under the agreement shall be [**].
. If less than [**] of the impressions guaranteed to be
delivered over the term of the Agreement [**], have been
delivered by the end of the second month after the effective
date, the Performance Benchmark and probation provisions above
shall have full effect, provided that, the numbers [**] and [**]
shall be reduced proportionally by the number of impressions
actually delivered over [**] of the guaranteed impressions [**].
Limits on Marketing Relationships with Xxxxxxx.xxx Competitors
. For the purposes of this letter agreement it shall be understood that
"Xxxxxxx.xxx Competitors" means (a) [**], (b) [**], (c) [**],
(d) [**], (e) [**], (f) [**], and (g) [**].
. During the term of this agreement, (a) xxxxxxxx.xxx may accept banner
advertisements from Xxxxxxx.xxx Competitors; provided, that such
banner advertisements in the aggregate are no greater than [**]
([**]) of the number of impressions guaranteed to Xxxxxxx.xxx,
herein; (b) xxxxxxxx.xxx will not provide placement within any
Affiliate Commerce Portal for any Xxxxxxx.xxx Competitor; and (c)
xxxxxxxx.xxx may issue press releases with Xxxxxxx.xxx Competitors;
provided that, no press release may be issued that promotes a
partnership between xxxxxxxx.xxx and a Xxxxxxx.xxx Competitor that is
similar in scope or purpose to the partnership set forth herein.
Cooperation and Miscellaneous Terms
. Xxxxxxx.xxx acknowledges that xxxxxxxx.xxx's performance of this
Agreement is dependent upon Xxxxxxx.xxx's full performance and
cooperation. Accordingly, the parties agree that Xxxxxxx.xxx's
obligations under this agreement are subject to such performance and
cooperation.
. Xxxxxxx.xxx and xxxxxxxx.xxx agree that the provisions set forth as
Exhibit A attached are incorporated herein by this reference.
. Xxxxxxx.xxx acknowledges that it has received, read and understands
the terms and conditions of this letter of agreement.
**Confidential treatment has been
requested with respect to the information
contained within the "[**]" markings.
Such marked portions have been omitted
from this filing and have been filed
separately with the Securities and
Exchange Commission
4
IN WITNESS WHEREOF the parties have entered into this Agreement.
xxxxxxxx.xxx Xxxxxxx.xxx
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxxxxx X. Xxxxx
By: _________________________ By: __________________________
Xxxxx X. Xxxxxxx Xxxxxxxx X. Xxxxx
Name:________________________ Name: ________________________
COO/CFO CEO
Title:_______________________ Title: _______________________
1/07/00 12/30/99
Date:________________________ Date: ________________________
5
