Service Agreement - IMGIS Inc. and Netscape Communications Corp.
ADFORCE-TM- SERVICE Web Publisher Agreement
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This service agreement for the AdForce service (the "Agreement") is entered
into between IMGIS, Inc., a California corporation ("IMGIS"), with offices at
10101 N. DeAnza Blvd., Suite 210, Cupertino, CA 95014 and Netscape
Communications, Inc., with offices at 501 East Middlefield Road, Mountain
View, CA 94043 ("COMPANY").
1. ADFORCE SERVICE DEFINITION. The AdForce service is an Internet
advertising administration system that allow COMPANY to manage
advertising on its Web site or similar on-line service. As part of the
AdForce service, IMGIS will provide COMPANY with the AdForce "client"
software application ("Application Software"), with which COMPANY will be
able to (a) generate ad tags, (b) schedule advertising to run in the
online environments with which COMPANY places those ad tags and (c)
generate reports on such advertising. In addition, IMGIS will maintain an
AdForce server complex from which IMGIS will electronically deliver
advertising scheduled by COMPANY to the online environments containing
the ad tags placed by COMPANY. The delivery of "Impressions," defined as
the transmission of advertisements by AdForce to an AdForce ad tag, will
be verified by monthly third-party audits of the AdForce service,
conducted by the Audit Bureau of Verification Services, Inc. or another
third party chosen by IMGIS. This audit is included in all levels of the
AdForce service. Each level of the AdForce service includes targeting
features as listed in Exhibit B. All levels of the AdForce service
include a suite of standard reports available in the AdForce system and
listed in Exhibit B, but do not include custom reports requested by
COMPANY. Features added to the AdForce service in the future will, at the
sole discretion of IMGIS, be considered part of one of the following
levels of AdForce service covered in this Agreement, or be considered part
of other AdForce services and subject to additional fees.
2. LEVELS OF ADFORCE SERVICE. ADFORCE BASIC is defined to include the
functionality described in section 1, as well as telephone customer
support from the hours of 6am to 6pm Pacific Time, Monday-Friday,
excluding major holidays. ADFORCE GOLD is defined to include the
functionality of ADFORCE BASIC, in addition to 24-hour-a-day access to
IMGIS technical support via phone and pager. ADFORCE PLATINUM is defined
to include the functionality of ADFORCE GOLD, in addition to
full-service scheduling of COMPANY'S advertising campaigns by IMGIS
personnel. Pricing for the each level of service is detailed in Exhibit
A. In addition, ADFORCE has agreed to place a Client Services
representative on-site at Netscape offices for a minimum of 45 days.
3. OBLIGATIONS OF COMPANY. COMPANY agrees to implement the ad tags as
described in the AdForce User Guide and Help documentation. If COMPANY
chooses the ADFORCE PLATINUM level of service, it agrees to supply IMGIS
with the information necessary to schedule COMPANY's ad campaigns at
least [*] in advance of campaign initiation. Should the average file
size of COMPANY's advertisements exceed [*], as determined by
IMGIS on a monthly basis, COMPANY agrees to pay the incremental fee
listed in Exhibit A to compensate for higher bandwidth costs. COMPANY
agrees to provide IMGIS with volume forecasts of Impressions to be
delivered using the AdForce service.
4. OWNERSHIP/LIMITATIONS ON USE. Subject to the terms and conditions of
this Agreement, IMGIS hereby grants to COMPANY, contingent on timely
payment of monies due to IMGIS, a non-exclusive, non-transferable
license for the term of this Agreement to use the Application Software
in connection with the AdForce service. IMGIS shall have the sole and
exclusive ownership of all right, title and interest in and to the
Application Software and the AdForce service, any enhancements thereto
and in any materials and data provided to COMPANY by IMGIS. COMPANY may
not sublicense the AdForce service. COMPANY may not copy, modify, alter,
sell, distribute or sublicense the Application Software or reverse
assemble, reverse compile or otherwise attempt by any other method to
create or derive the source programs of the AdForce service or the
Application Software, nor authorize or contract with third parties to do
the same. During the course of delivering advertising to visitors to
COMPANY's site, IMGIS 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 IMGIS owns the right to use or grant use
of this information, it will provide COMPANY with the ability to run any
reports considered part of COMPANY's selected level of service.
5. CONFIDENTIALITY. It is agreed that any COMPANY passwords to AdForce,
AdForce user guides, the AdForce Application Software, and the AdForce
"help" documentation, whether on-line or in printed form, are
confidential. It is also agreed that any account information input into
the AdForce service by COMPANY, such as advertiser contact and billing
information, is confidential. Such information shall not be used,
disclosed or reproduced by the other party without the consent of the
party providing said information, except for any information, data or
material which: (a) at the time of disclosure to the receiving party
was known or in the possession of the receiving party; (b) is
independently developed by the receiving party; (c) is generally
available to the public without any breach of this Agreement. Each party
will disclose the other party's Confidential Information only to
employees who need to know it to perform under this Agreement and who
are bound by the terms of this Agreement. Each party will return or
destroy all copies of the other party's Confidential Information when
this Agreement is terminated except for data resident with the AdForce
system. Confidential Information includes information about R&D,
manufacturing, products, business plans, customers, user information
(including but not limited to identifying users), finances, or personal
and other information, identified as confidential by a party at the time
it is disclosed. It is also agreed that any information regarding
COMPANY's specific activity levels, pricing, performances or any other
data specific to COMPANY's activity levels is confidential and will be
treated as such by IMGIS.
6. INDEMNIFICATION. (a) Subject to subsection (b), COMPANY shall indemnify
and hold harmless IMGIS from any liability and damages and costs
(including reasonable costs and attorney's fees) arising out of or
relating to advertising placed by COMPANY using the AdForce service,
including, without limitation, content, libel, invasion of privacy, and
rights of publicity, provided that: (1) IMGIS promptly notifies COMPANY
of such claims; (ii) COMPANY has sole control over the defense and
settlement of such claims and is not responsible for any settlement that
it does not approve in writing; and (iii) IMGIS renders all reasonable
assistance required; (iv) COMPANY has properly represented the
capabilities of the AdForce service and the Application Software, (b)
IMGIS shall indemnify and hold harmless COMPANY from any third party
claims and liabilities for infringement arising out of or relating to
COMPANY's use of the Application Software and the AdForce Service
pursuant to this Agreement, provided that: (i) COMPANY promptly notifies
IMGIS of such claims; (ii) IMGIS has sole control of the defense and
settlement of such claims and is not responsible for any
[*] 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.
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ADFORCE-TM- SERVICE Web Publisher Agreement
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settlement that it does not approve in writing; and (iii) COMPANY
renders all assistance required. If an injunction is entered against
COMPANY's use of the Application Software, IMGIS will, at its option,
(A) obtain a license permitting such use, (B) modify the Application
Software to avoid the infringement, or (C) if it cannot reasonably do
either of the foregoing, terminate COMPANY's license to the Application
Software.
7. WARRANTY. COMPANY warrants that COMPANY is free to enter into this
Agreement and that this Agreement constitutes the valid and binding
obligation of COMPANY, enforceable in accordance with its terms. IMGIS
represents and warrants that IMGIS is free to enter into and perform
this Agreement and, except for events beyond IMGIS' 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 section 1, (b) IMGIS either owns, has, or
will otherwise acquire the right (and will, during the term hereof
maintain such right) to use all hardware and software components of the
AdForce service and will not infringe on any right or interest
(intellectual property or otherwise) of any third party.
EXCEPT AS SPECIFIED IN THIS SECTION, IMGIS 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.
8. LIABILITY. NEITHER PARTY WILL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL,
SPECIAL OR EXEMPLARY DAMAGES, EVEN IF IT HAS BEEN WARNED OF THE
POSSIBILITY OF SUCH DAMAGES.
9. TERMINATION. COMPANY shall select the term and level of service for
this Agreement in Section 12, and shall indicate such selection by
authorized initial next to the desired term and level of service.
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. All accrued payment obligations of
COMPANY shall survive expiration or termination of the Agreement, as
shall the parties' rights and obligations under Sections 4 through 9, as
well as sections 11 through 13.
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 by operation of law.
11. PAYMENT TERMS. COMPANY shall pay to IMGIS the dollar amounts determined
from the pricing schedule set forth in Exhibit A, within 30 days from
date of invoice. All payments to IMGIS shall be remitted in U.S.
Dollars. Fees for the AdForce service are subject to change at the
expiration of the initial term and upon renewal of this Agreement.
12. TERM AND LEVEL OF SERVICE. COMPANY shall select the term and level of
service by initializing the desired term and level of service;
<TABLE>
<CAPTION>
TERM LEVEL OF SERVICE
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<S> <C>
____________ / / 30-day term ____________ / / AdForce Basic
(Initial) (Initial)
____________ /X/ 90-day term ____________ / / AdForce Gold
(Initial) (Initial)
____________ /X/ AdForce Platinum
(Initial)
</TABLE>
The term shall commence on the Effective Date indicated below and shall
automatically renew unless, prior to the end of the term, written notice
is received of the intent to terminate. COMPANY agrees to pay IMGIS for
all Impressions delivered through the AdForce service, according to the
pricing schedule in Exhibit A, subject to change upon renewal of 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 the conflicts of law provisions thereof.
The prevailing party in any action to enforce this Agreement will be
entitled to recover its attorney's fees and costs in connection with
such action. 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.
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ADFORCE-TM- SERVICE Web Publisher Agreement
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IN WITNESS WHEREOF, the parties have executed this Agreement as of: August 1,
1999 (Effective Date).
By: /s/ Mike Homer
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Print Name: Mike Homer
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Title: GM. SVP Netcenter
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Company: Netscape Communications, Inc. (COMPANY)
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Accepted: /s/ Charles W. Berger
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Name: Charles W. Berger
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Title: Chairman & CEO
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Company: IMGIS, Inc. (IMGIS)
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REVIEWED BY
NETSCAPE LEGAL
Initial /s/ LW
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ADFORCE-TM- SERVICE Web Publisher Agreement
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Exhibit A
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Netscape Rate for AdForce Platinum Service beginning August 1, 1998 through
October 31, 1998 is as follows:
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Banners*** [*] [*]
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Premiers [*] [*]
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Spotlights/Buttons [*] [*]
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Text Links [*] [*]
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- A surcharge of [*] will be applied if the average size of advertisements
over a 30-day period is greater than [*], and an additional [*] will be
charged for each additional [*] over [*].
- Custom reports can be designed for an extra charge
[*] 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.
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ADFORCE -TM- SERVICE WEB PUBLISHER AGREEMENT
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EXHIBIT B
ADFORCE TARGETING
All levels of 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, as well as for customization of the targeting algorithms for
keywords and site data.
ADFORCE REPORTING
The following reports are currently available with all levels of the AdForce
service:
<TABLE>
<CAPTION>
NETWORK REPORTS WEBSITE REPORTS ADVERTISER REPORTS
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<S> <C> <C>
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
</TABLE>
There will be additional charges for reports customized or designed to
COMPANY's specifications. There may also be additional charges for reports
added in the future.
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