Procurement and Trafficking Agreement - Digital Equipment Corp. and DoubleClick Inc.
PROCUREMENT AND TRAFFICKING AGREEMENT
Company: DIGITAL EQUIPMENT CORPORATION TOGETHER WITH ITS WHOLLY-OWNED AND
MAJORITY-OWNED SUBSIDIARIES AND AFFILIATES ("COMPANY")
Address: MSO 2-3 111 POWDERMILL RD. MAYNARD, MA 01754
Web Site URL: altavista.digital.com
This Agreement when executed by the above named company ("Company"), and
DoubleClick Inc. ("DoubleClick"), will constitute a valid and binding agreement
between Company and DoubleClick according to the specific terms and conditions
set forth below and those terms and conditions set forth in (i) the Standard
Terms and Conditions, (ii) Appendix 1, (iii) Appendix 2 and (iv) Appendix 3
attached hereto. All terms not otherwise defined below shall be as defined in
the Standard Terms and Conditions.
I. DESCRIPTION OF SERVICES
A. DoubleClick hereby agrees to link Pages to the Service and through
such Service, DoubleClick shall deliver Advertisers' Banners to users
accessing Pages. The selection and the delivery of Banners through the
Service to users accessing Pages will be in accordance with the
Placement Algorithm set forth in Appendix 1 hereto, and schedules and
specifications which may be made a part of this Agreement by the
written consent of the parties hereto; provided, however that the
delivery of Banners (the "December Delivery Banners") by DoubleClick
for the period commencing on December 18, 1996 and continuing through
December 31, 1996 (the "December Delivery Period") shall be in
accordance with the terms and conditions of Section VI of this
Agreement and the Placement Algorithm set forth in Appendix 1 hereto
shall not apply to the delivery of the December Banners. DoubleClick
and Company shall mutually agree upon the number and type of Pages to
be linked to the Service.
B. During the first six (6) months of the Term (as defined below), the
Company shall not place, or permit the placement or delivery of, any
Banners or third party advertising on any pages of the Web Site
(including, without limitation, the Pages and those pages which are
not linked to the Service) except through DoubleClick which shall be
the Company's sole and exclusive representative for the placement and
delivery of all Banners and other advertising on the pages of the Web
Site. Thereafter, the Company shall not place, or permit the placement
or delivery of, any Banners or third party advertising on any Pages
except through DoubleClick which shall be the Company's sole and
exclusive representative for the placement and delivery of all Banners
and other advertising on the Pages; provided, however, that if Company
intends to engage a third party to sell or place banners on said
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non-linked pages after the first six (6) months of the Term, Company
shall provide DoubleClick with sixty (60) days notice, notifying
DoubleClick of Company's intention to do place or deliver Banner to
the non-linked pages.
II. TERM
The term (the "Term") of this Agreement shall commence on December 16,
1996 and shall continue for two (2) years thereafter, except that
either party may earlier terminate this Agreement for any reason after
that date which is six (6) months following the effective date hereof
on not less than ninety (90) days prior written notice to the other
party.
III. COMPENSATION/PAYMENT
A. In full consideration of the Company providing the use of the Spot,
DoubleClick shall pay Company, and Company agrees to accept, *
of the Net Revenues generated on Banners which are delivered
through the Service to Pages after the December Delivery
Period and DoubleClick shall retain * of said Net Revenues;
provided, however, if the Earned Revenues generated on Banners
which are delivered through the Service to Pages after the
December Delivery Period do not meet minimum calendar quarterly goals
which are mutually agreed upon by Company and DoubleClick (the
"Quarterly Goals"), then DoubleClick shall pay Company, and Company
agrees to accept, * of the Net Revenues generated on Banners
which are delivered through the Service to Pages for the
succeeding calendar quarter and DoubleClick shall retain *
of said Net Revenues for the succeeding calendar quarter.
The parties expressly acknowledge and agree that the
Quarterly Goals for 1997 shall be * for the first quarter of
1997; * for the second quarter of 1997; * for the
third quarter of 1997; and * for the fourth quarter of
1997. Notwithstanding DoubleClick's failure to achieve the
Quarterly Goals, commencing with the third calendar quarter of 1997,
DoubleClick and Company shall reasonably determine whether Company is
among the top * Internet Search Engines in terms of gross
advertising revenue earned by such Internet Search Engines from the
placement of Banners on said Internet Search Engines for each calendar
quarter and if Company is among the top * Internet Search
Engines for said calendar quarter, then DoubleClick shall pay
Company, and Company agrees to accept, * of the Net Revenues
generated on Banners which are delivered through the Service to Pages
for the succeeding calendar quarter and DoubleClick shall retain
* of said Net Revenues for the succeeding calendar quarter.
DoubleClick anticipates that the majority of Net Revenues derived from
the delivery of Banners through the Service to Pages is
*Represents material which has been redacted pursuant to a request for
confidential treatment pursuant to Rule 406 promulgated under the Securities
Act of 1933, as amended.
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generated from the delivery of Banners based on Keywords. Company
acknowledges that except as otherwise provided in this Agreement,
Company shall not be entitled to any additional compensation in
connection with the performance of its obligations hereunder.
B. DoubleClick shall pay Company on or about the third business day of
each month for all Net Revenues collected in the prior month from
Advertisers whose Banners are delivered to Pages.
C. Company shall be solely responsible for any costs or expenses it
incurs in connection with the Service or performance of its
obligations under this Agreement including, without limitation,
expenses associated with any HTML programming and linking Pages to the
Service.
D. Notwithstanding anything to the contrary contained herein, in the
event Company terminates this Agreement in accordance with Section II
above and DoubleClick, prior to said termination, has entered into
agreements with Advertisers ("Advertiser Contracts") for the delivery
of Banners to the Pages, the duration of which Advertiser Contracts
extend beyond the date on which this Agreement has been terminated by
Company, DoubleClick shall be entitled to * of the revenues
derived from the continued delivery of said Banners by Company or
any party other than DoubleClick.
E. If Company requests DoubleClick to deliver banners from advertisers
which were secured by Company or a third party to any Web Site pages
not linked to the Service, DoubleClick's compensation for such
delivery shall be negotiated in good faith by the parties hereto.
DoubleClick expressly agrees that it shall deliver Company Partner
Banners pursuant to this Section III.E. in accordance with the terms
set forth in Appendix 1 hereto.
IV. COMPANY OBLIGATIONS AND RIGHTS
A. Company agrees to effect all necessary HTML programming with respect
to the Web Site and Pages in accordance with the HTML Modifications
(the "HTML Modifications") to be designated by DoubleClick.
B. Spots must be within the first screen of a Page and otherwise conform
to the HTML Modifications unless otherwise agreed upon by Company and
DoubleClick.
C. Company agrees to place a link on the Web Site's home page to
DoubleClick's web site for potential advertisers to learn how they can
place advertising on the Web Site.
*Represents material which has been redacted pursuant to a request for
confidential treatment pursuant to Rule 406 promulgated under the Securities
Act of 1933, as amended.
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D. Company agrees that DoubleClick has no responsibility to review the
contents of Pages or the Web Site.
E. Company shall have the right at any time to notify DoubleClick that it
disapproves of a Banner which is then currently being delivered by
DoubleClick to the Web Site and that such Banner should no longer be
delivered to the Web Site. Provided that such notification is given
by Company on a business day, DoubleClick shall remove said Banner
within three (3) hours of such notification. If the notification is
given on a non-business day, DoubleClick shall remove said Banner
within three (3) hours following the start of business on the next
business day following such notification.
V. DOUBLECLICK OBLIGATIONS AND RIGHTS
A. DoubleClick shall have the right to refuse to include in the Service,
or remove from the Service, any Pages (including its contents) that
DoubleClick determines do not meet the standards of the Service or
which do not comply with the HTML Modifications, as DoubleClick deems
reasonable and necessary in its sole good faith discretion, or in the
event of any material change in the nature of the Web Site or the Page
from that set forth in Company's application. DoubleClick shall give
Company notice of any such removal of Pages, except where DoubleClick
reasonably believes that the failure to remove such Pages will result
in harm or damage to DoubleClick or the Service.
B. Company acknowledges and agrees that promotion of the Service is
critical to enhance usage by Advertisers and in connection therewith
Company agrees that (i) DoubleClick shall have the right to use
Company's Alta Vista tradenames and logos ("Company Marks") in
accordance with Section V.K. and Pages in advertising and promoting
the Service in any media now or hereafter known and (ii) Company
shall, upon DoubleClick's reasonable request, supply DoubleClick with
a reasonable amount of Company's promotional materials so as to
facilitate DoubleClick's sales efforts to prospective Advertisers.
The parties acknowledge and agree that DoubleClick shall not be
required to obtain Company's permission prior to the use of Company's
Marks in advertising and promoting the Service; provided, however,
that DoubleClick shall at all times comply with the guidelines set
forth by Company pertaining to the use of Company's name, trademarks
or logos, which guidelines are set forth in Appendix 3 hereto. If
DoubleClick fails to comply with said guidelines, Company shall so
notify DoubleClick and DoubleClick shall within a reasonable period of
time thereafter prospectively conform such use to Company's standards.
If DoubleClick fails to conform such use, Company shall have the right
to suspend DoubleClick's non-conforming use of the Company Marks.
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C. DoubleClick agrees to actively promote the Web Site to the advertising
community. Seminars, sales materials, trade materials, print and
online advertising, conferences, and sales presentation materials are
among the means by which DoubleClick shall promote the Web Site.
DoubleClick further agrees to promote Company both as part of the
network of web sites linked to the Service and as a premium web site
using collateral materials and a rate card customized to Company and
the Web Site.
D. DoubleClick shall have the right to use for DoubleClick's own internal
use in connection with the Service or for use in connection with
potential Advertisers on the Service, information concerning Pages,
Impressions and users accessing Pages obtained through the Service,
provided DoubleClick does not reproduce any Pages without Company's
prior consent and DoubleClick shall not disclose to any third party
any such information specifically pertaining to such users. Except as
expressly provided herein, DoubleClick shall not disclose any other
statistical data regarding Company or the Web Site to any third party
without the written permission of Company. Except as expressly
provided above, all of the foregoing information shall be maintained
in confidence by DoubleClick in accordance with Section 5 of the
Standard Terms and Conditions attached hereto.
E. DoubleClick will make site reports available to Company through
DoubleClick's web site (www.doubleclick.net) listing the number of
Impressions and click-over rates by Page.
F. DoubleClick and Company shall mutually determine the rate card charged
to Advertisers for delivery of Banners to be delivered solely to
Page(s) of the Web Site (except with respect to the December Banners)
and any general discounting strategies relating thereto. DoubleClick
shall not enter into an Advertiser Contract with an Advertiser for the
delivery of Banners to (i) the Page(s) of the Web Site and (ii) the
Page(s) of at least one other web site which is linked to the Service
without Company's permission and if Company so consents, DoubleClick
shall determine the rate card (and any applicable discount) charged to
said Advertiser for delivery of said Banners. It is understood that
the rate charged for specific buys made by an Advertiser will not be
reviewed with Company. Notwithstanding anything to the contrary
contained herein, DoubleClick shall have the right, in its sole
discretion, to provide Advertisers with bonus and/or make-good
Impressions free of charge.
G. DoubleClick shall procure Banners for delivery to the Web Site.
H. DoubleClick agrees that the Service shall perform in accordance with
the Technical Specifications set forth in Appendix 2, attached hereto
and that Company shall have the right to perform the Technical
Specifications Test in Appendix 2.
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I. DoubleClick, for its own internal purposes, shall have a financial
audit of (i) its books and records and (ii) its "Ad Management System"
undertaken by KPMG or another "Big Six" accounting firm on an annual
basis during the Term hereof.
J. DoubleClick shall keep accurate records and accounts in accordance
with standard business practices in the on-line industry and generally
accepted accounting principles. Such records shall include, but are
not limited to, the information relevant to the payment, and the
calculations for such payments, to be made in accordance with Section
III of this Agreement. DoubleClick agrees that an independent
certified public accountant shall, no more than three times per year,
until the expiration of one year after final payment under this
Agreement, have access to and the right, upon prior reasonable notice,
to examine at DoubleClick's principal place of business during regular
working hours any books, documents, papers, records or accounts of
DoubleClick relating to the delivery of Banners pursuant to this
Agreement and to the determination and calculation of the payments to
be made to Company. Company agrees to maintain all information
obtained during such examinations in confidence and to cause its duly
authorized representatives to do so as well. Audits shall be at the
expense of Company, unless an underpayment exceeding five percent (5%)
of the amount paid for the period covered by the inspection is
established in the course of any such inspection, whereupon all costs
relating to such audit, together with the amount of such underpayment,
shall be paid by Company. If a deficiency is shown by such audit,
DoubleClick shall immediately pay that deficiency plus interest
thereon at annual rate equal to the prime rate of Citibank existing at
the time of such audit plus 1.5% on any past due balance. Non-payment
of any deficiency for more than thirty (30) days after the date on
which DoubleClick receives notice of such deficiency shall constitute
a material breach of this Agreement.
K. Company hereby grants to DoubleClick a non-exclusive license to use
Company's Marks as set forth in Appendix 3 attached hereto in
connection with DoubleClick's placement and delivery of Banners and
other advertising and promotions on the Pages pursuant to this
Agreement, provided that any such use is approved in advance by
Company. DoubleClick's use shall be in accordance with Company's
policies as set forth in Appendix 3 attached hereto regarding
advertising and trademark usage as established from time to time by
company. DoubleClick agrees to cooperate with Company in facilitating
Company's monitoring and control of the nature and quality of products
and services bearing the Company Marks and to supply Company with
specimens of DoubleClick's use of the Company's Marks, upon Company's
reasonable request. In the event that Company determines that
DoubleClick's use of the Company Marks, or the service in connection
which such Company Marks are used, is inconsistent with Company's
quality standards, then upon Company's written request, DoubleClick
shall within a reasonable period thereafter prospectively conform such
use or service to Company's standards. If DoubleClick fails to
conforms such use or
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service, Company shall have the right to suspend DoubleClick's
non-conforming use of the Company Marks.
L. DoubleClick acknowledges that the Company Marks are trademarks and
service marks of Company. DoubleClick understands and agrees that the
use of and Company Marks in connection with this Agreement shall not
create any right, title or interest, in or to the use of the Company
Marks and that all such use and goodwill associated with the Company
Marks will inure to the benefit of Company.
M. Subject to the provisions of Section 5 of the Standard Terms and
Conditions, Company and DoubleClick shall promptly after the effective
date of this Agreement agree upon and issue a joint press release
announcing in general terms the business arrangement between
DoubleClick and Company, without disclosing payment terms, exclusivity
or other terms and conditions in this Agreement. Said press release
shall be mutually agreed to by the parties hereto.
N. It is understood that DoubleClick will not deliver any Banners
containing sexually explicit materials or which are linked to a
sexually explicit web site.
VI. DECEMBER DELIVERY
A. Notwithstanding anything to the contrary contained herein, upon the
execution of this Agreement, DoubleClick shall have the right to
deliver up to One Hundred Million December Banner Impressions (the
"December Banners") to the Web Site, which delivery shall commence on
December 18, 1996 and shall continue through December 31, 1996 (the
"December Delivery Period").
B. DoubleClick shall be entitled to (i) use any or all of the December
Banners to advertise DoubleClick and the Service and/or (ii) resell
any or all of the December Banners to any third parties which are
approved in advance by Company, which approval shall not be
unreasonably withheld. Said approval or disapproval must be provided
to DoubleClick within twenty-four (24) hours or the applicable third
party will be deemed approved. Company acknowledges that it
anticipates approving any third parties other than (i) Internet Search
Engines (other than Company) and (ii) third parties whose proposed
December Banners are derogatory of or disparaging to Company.
C. In consideration for DoubleClick having the right to deliver any or
all of the December Banners, DoubleClick shall pay Company, and
Company agrees to accept an amount equal to * (the
"December Compensation"), payable sixty (60) days after December 31,
1996. Company shall not be entitled to any additional compensation
in connection with the placement, sale or resale of the December
Banners. DoubleClick, in its sole
*Represents material which has been redacted pursuant to a request for
confidential treatment pursuant to Rule 406 promulgated under the Securities
Act of 1933, as amended.
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discretion, shall determine the rates charged to third parties in
connection with the resale of the December Banners.
D. DoubleClick shall determine, in its sole discretion, when during the
December Delivery Period it delivers the December Banners to the
Pages, provided that (i) DoubleClick shall not deliver in excess of
ten million (10,000,000) December Banners on any given day and (ii)
DoubleClick shall provide Company with twenty-four (24) hours notice
prior to the commencement of the delivery of the December Banners to
the Web Site. In the event Company is unable for any reason
(including for failure to effect the necessary HTML programming, but
excluding a failure resulting from the acts or omissions of
DoubleClick) to receive or display a December Banner promptly
following said twenty-four (24) hour period and notwithstanding
Section 4 of the Standard Terms and Conditions, DoubleClick shall be
entitled to deduct from the December Compensation an amount equal to
$2.50/CPM for such non-received or non-displayed December Banners.
DOUBLECLICK INC. COMPANY
/s/ Kevin O'Connor By: /s/ Robert E. Hult
------------------------ ------------------------
(Signature) (Signature)
/s/ Kevin O'Connor /s/ Robert E. Hult
------------------------ ---------------------------
(Printed/Typed Name) (Printed/Typed Name)
CEO Vice President
------------------------ ---------------------------
(Official Title) (Official Title)
12/17/96
Dated: 12/19/96
--------------------------------
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STANDARD TERMS AND CONDITIONS
1. NO ASSIGNMENT. Neither party to this Agreement shall sell, transfer
or assign this Agreement or the rights or obligations hereunder, other than to a
parent or wholly-owned or majority-owned subsidiary, without the prior written
consent of the other party. Notwithstanding the foregoing, without securing
such prior consent, either party shall have the right assign or transfer this
Agreement and their obligations hereunder to any successor-in-interest of such
party by way of sale, merger, consolidation, reorganization, restructuring, or
the acquisition of substantially all of the business and assets of the assigning
party or more than 75% of the outstanding stock of the assigning party. If
either party assigns this Agreement to a successor-in-interest, then the other
party shall have the right to terminate this Agreement on not less than ninety
(90) days prior written notice.
2. PROPRIETARY RIGHTS. Company understands and agrees that Company shall
not have, nor will it claim, any right, title or interest in and to any Banners
(other than its own Banners), the Service or any elements thereof (including,
without limitation, the grant of a license in or to the Service or any software,
source codes, modifications, updates and enhancements thereof or any other
aspect of the Service), the name "DoubleClick" or any derivatives thereof, or
any other trademarks and logos which are owned or controlled by DoubleClick and
made available to Company through the Service or otherwise. DoubleClick
understands and agrees that DoubleClick shall not have, nor will it claim, any
right, title or interest in and to the Web Site, or any software, source codes,
modifications, updates and enhancements thereof, or any intellectual property
rights embodied therein. Nothing herein grants or shall be construed as
granting DoubleClick any licenses or rights, whether express or implied or
otherwise, in, to or under the Web Site or any intellectual property rights
embodied therein.
3. REPRESENTATION AND INDEMNITY. Company warrants and represents at all
times that Company (i) has the full corporate right, power and authority to
enter into this Agreement, to grant the rights herein granted and fully to
perform the acts required of it, and to grant the rights granted by it
hereunder, (ii) the execution of this Agreement by Company, and the performance
by Company of its obligations and duties hereunder, do not and will not violate
any agreement to which Company is a party or by which it is otherwise bound and
DoubleClick acknowledges that Company makes no representations, warranties or
agreements related to the subject matter hereof that are not expressly provided
for in this Agreement. The foregoing representations by Company in this Section
3 shall be defined as "Company's Representations". In furtherance of the
foregoing, Company agrees to indemnify and hold DoubleClick and the Advertisers
harmless from and against any and all claims, actions, losses, damages,
liability, costs and expenses (including reasonable attorneys' fees) ("Claims")
to the extent that the basis of such Claims is the breach of any representation,
warranty or agreement made by Company hereunder; provided that (i) DoubleClick
gives Company prompt notice of the Claim, (ii) Company is given the right to
control and direct the investigation, preparation, defense and settlement of the
Claim; and (iii) DoubleClick reasonably cooperates with Company in the defense
and settlement thereof. In connection with the defense of any such Claim,
DoubleClick may have its own counsel in attendance at all interactions and
substantive negotiations at its own cost and expense.
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DoubleClick warrants and represents at all times that DoubleClick (i) owns the
Service and that such Service will not infringe upon or conflict with the rights
held by any third party under patent, trademark, copyright, trade secret or
other proprietary right, (ii) the performance by DoubleClick of its obligations
and duties hereunder, do not and will not violate any agreement to which
DoubleClick is a party or by which it is otherwise bound and (iii) DoubleClick
will require each Advertiser whose Banners are being delivered to Pages to agree
to indemnify and hold Company harmless from and against any losses, costs,
damages, or expenses (including reasonable attorneys' fees) resulting from
claims or actions arising out of or in connection with the placement of Banners
on Pages. Advertisers refusing to agree to indemnify Company as set forth above
shall be excluded from the Pages. It is understood and agreed that nothing
herein shall require DoubleClick to take or participate in any action against an
Advertiser although DoubleClick shall have the right to participate in such
proceeding at DoubleClick's expense. The foregoing representations by
DoubleClick in this Section 3 shall be defined as "DoubleClick's
Representations". In furtherance of the foregoing and except as provided in
Section 4 of these Standard Terms and Conditions, DoubleClick shall indemnify,
defend and hold Company harmless from and against any and all claims, actions,
losses, damages, liabilities, costs and expenses (including reasonable
attorneys' fees) resulting from or arising out of or in connection with any
breach of the foregoing representations and warranties and for in connection
with or arising from DoubleClick's placement, delivery and/or selling of all
Banners on the Pages and the Web Site; provided that (i) Company gives
DoubleClick prompt notice of the Claim, (ii) DoubleClick is given the right to
control and direct the investigation, preparation, defense and settlement of the
Claim; and (iii) Company reasonably cooperates with DoubleClick in the defense
and settlement thereof. In connection with the defense of any such Claim,
Company may have its own counsel in attendance at all interactions and
substantive negotiations at its own cost and expense.
4. NO WARRANTIES/LIABILITIES. EXCEPT WITH RESPECT TO "COMPANY'S
REPRESENTATIONS" AND "DOUBLECLICK'S REPRESENTATIONS" (AS SAID TERMS ARE DEFINED
IN SECTION 3 ABOVE), NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER
EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF NONINFRINGEMENT,
MERCHANTABILITY OR FITNESS OF THE SERVICE OR THE WEB SITE FOR A PARTICULAR
PURPOSE INCLUDING, WITHOUT LIMITATION, THE TYPE OF BANNERS OR NUMBER OF BANNERS
WHICH WILL BE DELIVERED TO PAGES THROUGH THE SERVICE. DOUBLECLICK SHALL NOT BE
LIABLE FOR ANY ADVERTISERS WHOSE BANNERS APPEAR ON THE SERVICE, NOR THE CONTENTS
OF ANY BANNER, NOR SHALL DOUBLECLICK BE LIABLE FOR ANY LOSS, COST, DAMAGE OR
EXPENSE (INCLUDING COUNSEL FEES) INCURRED BY COMPANY IN CONNECTION WITH
COMPANY'S PARTICIPATION IN THE SERVICE. NEITHER PARTY SHALL BE LIABLE TO THE
OTHER PARTY FOR ANY TECHNICAL MALFUNCTION, COMPUTER ERROR OR LOSS OF DATA OR
OTHER INJURY, FAILURE OR INTERRUPTION OF, AND/OR DAMAGE OR DISRUPTION TO
COMPANY'S PAGES OR WEB SITE OR THE SERVICE. IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL, SPECIAL
OR EXEMPLARY DAMAGES ARISING OUT OF OR IN RELATION TO THIS
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AGREEMENT. IN FURTHERANCE OF, BUT WITHOUT LIMITING THE FOREGOING: (A)
DOUBLECLICK ACKNOWLEDGES THAT COMPANY PROVIDES THE WEB SITE ON AN "AS IS" BASIS
AND THAT COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS
TO THE USEFULNESS, ACCURACY, COMPLETENESS, FEASIBILITY, RELIABILITY OR
EFFECTIVENESS OF THE WEB SITE OR THAT THE OPERATION OF THE WEB SITE WILL MEET
THE OBJECTIVES OF DOUBLECLICK OR ANY THIRD PARTY, OR THAT THE OPERATION OF THE
WEB SITE WILL BE UNINTERRUPTED OR ERROR-FREE; IN PARTICULAR, AND WITHOUT
LIMITING THE FOREGOING, COMPANY MAKES NO REPRESENTATION AS TO THE COMPLETENESS
OF SEARCH RESULTS OBTAINED BY USING THE WEB SITE; AND (B) COMPANY ACKNOWLEDGES
THAT DOUBLECLICK PROVIDES THE SERVICE ON AN "AS IS" BASIS AND THAT DOUBLECLICK
MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE
USEFULNESS, ACCURACY, COMPLETENESS, FEASIBILITY, RELIABILITY OR EFFECTIVENESS OF
THE SERVICE OR THAT THE OPERATION OF THE SERVICE WILL MEET THE OBJECTIVES OF
COMPANY OR ANY THIRD PARTY, OR THAT THE OPERATION OF THE SERVICE WILL BE
UNINTERRUPTED OR ERROR-FREE.
5. CONFIDENTIALITY. Any information relating to or disclosed in the
course of this Agreement by either party (the "Disclosing Party") to the other
party (the "Receiving Party"), which is or should be reasonably understood in
good faith by the nature of the circumstance to be confidential or proprietary
to the Disclosing Party, including but not limited to, information about the
Service and technical processes and formulas, source code, product designs,
sales, cost and other unpublished financial information, product and business
plans, projections, and marketing data shall be deemed "Confidential
Information" and shall not be used, disclosed or reproduced by the Receiving
Party without the Disclosing Party's prior written consent. "Confidential
Information" shall not include information (a) already lawfully known to or
independently developed by the Receiving 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. Except as required by law
or generally accepted accounting principles, and except to assert its rights
hereunder or for disclosures on a "need-to-know" basis to its own officers,
directors, employees and professional advisers or to prospective investors and
acquirers in connection with a pending investment in or acquisition of such
party, and under an obligation of confidentiality no less stringent than as set
forth herein, each party hereto agrees that neither it nor its directors,
officers, employees, consultants or agents shall disclose the terms of this
Agreement or specific matters relating hereto without the prior consent of the
other party.
6. BREACH. Either party shall have the right to immediately terminate
this Agreement in the event the other party commits a material breach of this
Agreement and such breach is not cured by the breaching party within thirty (30)
days of its receipt of notice of such breach from the non breaching party.
7. MISCELLANEOUS. Notwithstanding any provision hereof, for the purpose
of this Agreement each party shall be and act as an independent contractor and
not as an employee,
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partner, joint venturer, or agent of the other and shall not bind nor attempt to
bind the other to any contract.
This Agreement, including (i) the Standard Terms and Conditions, (ii) Appendix
1, (iii) Appendix 2 and (iv) Appendix 3, represents the entire understanding
between DoubleClick and Company regarding DoubleClick's services and supersedes
all prior agreements. No waiver, modification or addition to this Agreement
shall be valid unless in writing and signed by the parties to this Agreement.
Notwithstanding the foregoing, DoubleClick shall have the right to modify or
make additions to Appendix 1, including the Placement Algorithm, as well as to
the HTML Modifications only after notification and consultation with Company.
If any provision of this Agreement shall be adjudicated 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 the other provisions shall
be unaffected.
8. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the substantive laws of the State of New York.
9. SURVIVAL. Except with respect to Section V.L. of the Agreement and
Sections 2, 3 (only with respect to the indemnities contained therein), 4, 5, 7
and 8 of the Standard Terms and Conditions, no rights or liabilities created by
this Agreement shall extend beyond the expiration or earlier termination hereof;
provided, however, that the rights and liabilities created by Section 5 of these
Standard Terms and Conditions shall only extend for a period of one (1) year
beyond the expiration or earlier termination of this Agreement.
10. DEFINITIONS. "Advertiser" is defined as a company, entity or
individual which provides Banners to DoubleClick for distribution through the
Service. "Banner" is defined as an advertisement or promotion (including any
sponsorship-driven advertisements or promotions) and its contents. "Company
Partner Banners is defined as a Banner designated by Company which promotes one
of Company's partners with which it has established a contractual relationship
pertaining to the delivery of Banners and other business matters not related to
said delivery. "Development Banner" is defined as a Banner for DoubleClick
which is designed to promote the Service and which DoubleClick delivers to the
Pages in accordance with the Placement Algorithm at no cost to DoubleClick.
"Earned Revenues" is defined as the gross billings earned from Advertisers by
DoubleClick. "Net Revenues" is defined as the gross billings collected from
Advertisers by DoubleClick less rate card and volume discounts. "Impression" is
defined as occurring each time a Banner appears on a Page resulting from a user
accessing or visiting such Page. "Internet Search Engines" is defined as Yahoo,
Infoseek, Lycos, Excite and Company. "Keyword" shall be a search term
consisting of a word or phrase requested by a user of the Web Site which is used
to select the Banner that will be delivered to said user. "Page" is defined as
a page in the Web Site designated by Company to be linked to the Service and is
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accepted and approved by DoubleClick. "Paid Banner" is defined as any Banner
which is paid for by an Advertiser. "PSA Banner" is defined as a Banner
containing a public service announcement promoting worthwhile causes and is
donated by DoubleClick. "Service" is defined as the DoubleClick service that
delivers Banners to any Page(s) of the Web Site. "Spot" is defined as the
specific place on a Page where a Banner may appear through the Service. "User
Profile" is defined as information currently available to DoubleClick about the
users accessing Pages. "Web Site" is defined as the Alta Vista full-text World
Wide Web search engine and the Alta Vista index, which can be accessed through
http://www.altavista.digital.com, including the Alta Vista web site accessible
through such URL.
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APPENDIX 1
I. PLACEMENT ALGORITHM
A. If a Paid Banner's criteria matches a User Profile or Keyword, the
Paid Banner is delivered to the user. Otherwise,
B. Either a Company Partner Banner, a Development Banner or a PSA
Banner is delivered. Delivery of Company Partner Banners is limited
to a maximum per month of an amount equal to * of
the number of Paid Banners delivered during the previous month (the
"Company Partner Banner Limit"). Delivery of Development Banners is
limited to a maximum per month of an amount equal to * of
the number of Paid Banners delivered during the previous month.
Notwithstanding the foregoing, Company shall have the right to
exceed the Company Partner Banner Limit to an amount equal to
* of the number of Paid Banners delivered during the
previous month; provided, that Company pay to DoubleClick an amount
equal to * for the number of Company Partner Banners
delivered in excess of the Company Partner Banner Limit, which
amount shall be payable on the commencement of the immediately
subsequent month. It is expressly understood and agreed that for
the month of January, 1997, delivery of Company Partner Banners is
limited to a maximum of * and delivery of Development
Banners is limited to a maximum of * . The quantity and
selection of PSA Banners for a given month must be mutually upon by
both parties. Otherwise,
C. A blank image will be delivered.
*Represents material which has been redacted pursuant to a request for
confidential treatment pursuant to Rule 406 promulgated under the Securities
Act of 1933, as amended.
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APPENDIX 2
"TECHNICAL SPECIFICATIONS"
I. TECHNICAL SPECIFICATIONS TEST
A. Test Basics: Company shall have the right to conduct automated tests
(the "Technical Specifications Tests") from its facility in San Mateo,
California. The Technical Specifications Test will consist of
requests to DoubleClick from Company for the delivery 10,000 3K
Banners. The Technical Specifications Test will begin at 9 AM PST on
random Wednesdays, with the first Technical Specifications Test to be
held on January 29, 1997. The Technical Specifications Test will be
performed by a Unix C program provided by Company using up to four
hundred (400) threads initially, and up to one thousand (1000) threads
by January 29, 1998. Company shall provide DoubleClick with one (1)
hour notice prior to commencing any Technical Specifications Test.
1. RESPONSIVENESS: Average Banner delivery latency under the
Technical Specifications Test must be under 0.5 seconds for the
"Responsiveness" element of the Technical Specifications Test
results to be deemed satisfactory.
2. Failure Rate: No more than 0.1 % of the 10,000 3K Banner
delivery request under the Technical Specifications Test may fail
for the "Failure Rate" element of the Technical Specifications
Test results to be deemed satisfactory.
3. Capacity: The Service must be capable of delivering four hundred
(400) Banners per second by January 29, 1997 and one thousand
(1000) Banners per second by January, 29 1998 for the "Capacity"
element of the Technical Specifications Test results to be deemed
satisfactory.
B. METHODOLOGY: Company represents and warrants that its facilities will not
impede the successful completion of a Technical Specifications Test. To
avoid potential congestion of a particular route in the Technical
Specifications Test, Company agrees, at DoubleClick's request, to source
the test from two IP addresses such that the routes for each IP address to
DoubleClick are distinct. Company further agrees that it shall conduct all
Technical Specifications Tests in good faith.
C. UNSATISFACTORY TEST RESULTS: In the event the Technical Specifications Test
is not deemed satisfactory pursuant to Sections I.A., I.B. and I.C. of this
Appendix 2, DoubleClick will be promptly notified and Company shall repeat
the Technical Specifications Test forty-eight (48) hours later (a "Repeat
Test"). If the results of a Repeat Test are not deemed satisfactory
pursuant to Sections I.A., I.B. and I.C. of this Appendix 2, DoubleClick
will be promptly notified and Company shall perform an additional Repeat
Test forty-eight (48) hours later.
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D. FORCE MAJEURE: No element of the Technical Specifications Test results,
including, without limitation, the "Responsiveness" "Failure Rate" element
and the "Capacity" element, shall be deemed unsatisfactory if events beyond
the control of DoubleClick, including, without limitation, Internet
brownouts, Web Site technical difficulties, acts of God, fire, earthquake,
strike, civil commotion, war, terrorism, or act of government, prevent
DoubleClick from satisfying said elements; provided, DoubleClick,
immediately upon learning of such events, notifies Company of the
impossibility of satisfying such element(s) and to the extent such events
are within the reasonable control of DoubleClick, utilizes its best efforts
to cure such events within twenty-four (24) hours of said notification of
Company.
II. GENERAL TECHNICAL SPECIFICATIONS
A. CAPACITY: Effective January 29, 1997, the Service must be capable of
delivery of an aggregate of four hundred (400) Banners per second
dispersed on up to three (3) unique pages. By January 29, 1998 the
Service must be capable of delivery of an aggregate of one thousand
(1000) Banners per second dispersed on up to three (3) unique pages.
If the Service expands beyond three (3) unique pages, the parties
shall renegotiate the Banner per second capacity upward.
B. RELIABILITY: The Service must be functional and capable of delivering
Banners at least ninety-nine percent (99%) of the time over each
calendar month period. No single period of Service non-functionality
shall be greater than twenty-four (24) hours.
C. FORCE MAJEURE: DoubleClick shall not be deemed in default of any of
the General Technical Specifications if DoubleClick's failure to meet
such General Technical Specification is due to events beyond the
control of DoubleClick, including, without limitation, Internet
brownouts, Web Site technical difficulties, acts of God, fire,
earthquake, strike, civil commotion, war, terrorism, or act of
government; provided, DoubleClick, immediately upon learning of such
events, notifies Company of the impossibility of meeting such General
Technical Specifications and to the extent such events are within the
reasonable control of DoubleClick, utilizes its best efforts to cure
such events within twenty-four (24) hours of said notification of
Company.
III. TECHNICAL COVERAGE
A. DoubleClick agrees that it shall have personnel available to provide
technical coverage to Company twenty-four (24) hours per day, seven
(7) days per week.
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APPENDIX 3
DIGITAL TRADEMARK USAGE GUIDELINES
GUIDELINES FOR USE OF ALTAVISTA LOGO AND WORD MARKS
SUMMARY
Digital's AltaVista marks are of great importance in helping the company compete
in the highly competitive computer industry. Digital's legal rights in the
marks can be defended only if they are consistently used correctly in all forms
of media. Therefore, it is critical that all licensees familiarize themselves
with and abide the following rules of trademark use.
ALTAVISTA TRADEMARK USAGE GUIDELINES
Trademarks must be used as adjectives, not nouns. Always follow the mark
with the common generic (dictionary name for the product.
Correct: AltaVista Search, AltaVista Software
Always distinguish a trademark from surrounding text. Methods of
distinguishing a mark include printing it in CAPITALS, ITALICIZED TEXT, using
bold faced text, Initial Capitalization or by putting the mark in "quotation
marks".
Never use the AltaVista trademark as a verb.
Never use the AltaVista trademark in plural form.
Do not hyphenate or dissect the AltaVista trademark.
Incorrect: Alta Vista Incorrect: Alta-Vista
Do not combine the AltaVista mark with other trademarks or other words to
form new trademarks, except as permitted in the AltaVista Network Affiliate
Agreement.
The graphic design of the AltaVista logo must be adhered to strictly.
Approved artwork must be used and the design cannot be altered in any way. The
AltaVista logo must stand alone. It cannot be combined with other marks and
cannot be used in text.
The trademark symbol. "TM", must appear on the upper right shoulder of the
AltaVista logo and AltaVista word mark on both the first use of the mark and on
the prominent use of the mark.
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This following phrase must be centered at the bottom of the AltaVista
Search results page: "AltaVista Search from Digital. Used under
license."
From time to time during the Tenn, Digital may modify the written
guidelines for the size, typeface, colors and other graphic characteristics of
the AltaVista logo ant word marks, which upon delivery to Affiliate shall be
deemed to be incorporated into the "Guidelines for use of AltaVista Logo and
Word Mark" document under this Agreement.
These guidelines may be modified at any time, by Digital upon written
notice.
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ALTAVISTA LOGO USAGE GUIDELINES
Complete artwork files are available on write-locked, read-only electronic
media. This artwork may not be edited or modified in any way.
COLOR PALETTES
The AltaVista logos must be rendered in three colors for graphics arts
reproduction. Else color palette is:
- AltaVista Dark Blue (Pantone 288C)
- AltaVista Medium Blue (Pantone 286C)
- AltaVista Ice Blue (Pantone 630C)
- OnSite Red (Pantone 1655)
- Search Gold (Pantone 604)
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