Advertising Contract - Lycos Inc. and LowestFare.com
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LYCOS(TM)
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www.lycos.com
www.tripod.com
www.whowhere.com
Offices:
New York (212) 549-2100
San Francisco (415) 281-8721
Pittsburgh (412) 208-1000
Waltham (781) 370-2700
Williamstown (413) 458-2615
Chicago (773) 281-8390
Philadelphia (610) 701-5779
Los Angeles (310) 914-0195
Atlanta (404) 238-0534
New England (603) 924-4983
Mountainview (650) 938-4400
Dallas (214) 800-8767
Send all payments to:
Lycos, Inc.
P0 Box 6255
Boston, MA 02212-6255
LYCOS NETWORK ADVERTISING CONTRACT
Advertiser: Lowestfare.com
Address1:
Address2:
Agent/Agency Global Travel Marketing Services
Billing Contact Name: Terry O'Neal
Billing Address1: 980 Kelly Johnson Drive
Billing Address2: Las Vegas, NV 89119
Telephone Number: 702-260-3602
Fax Number: 702-260-3772
Technical Contact: Greg Monton
Telephone: 702-260-3603
eMail:
Reporting Contact: Steve Lay
Telephone: 714-249-4935
eMail:
Online Reporting:
User Name:
Password (8 chars):
Advertiser's URL:
Date Discount
Target/ Keyword -------------- Gross Gross (if applicable) Net Net
Keyword Excl. Res ID Description Start End Impressions CPM Cost Cost CPM
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Per Attached Addendum 10/28/98 10/27/99 *** -- *** ***
Per Attached Addendum 10/28/99 10/27/00 *** -- *** ***
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(For internal purposes only)
Advertising Contract Split Yes No Advertiser/Agent signature ___________________________________
Repeat/First time advertiser Repeat First Time DATE
Technical/Non Technical Tech Non Tech
Keyword/ Target/ Impr/ Comb Key Tgt Impr Combo Lycos account manager signature __________________________________
Domestic/ International client Dom Intern
Number of brands represented _______________________ Credit Card Number (AmEx, MC, Visa) _________________ Exp. Date______
This advertising contract is subject to the attached Terms and Conditions.
***[CONFIDENTIAL TREATMENT REQUESTED]
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Terms and Conditions
1. General. A signed contract must be submitted to Tripod five days in
advance of initial publication date. By submitting advertising for
inclusion on the Tripod site, advertiser/agency agrees to be bound by the
terms of this contract. No conditions other than those set forth herein
shall be binding on Tripod unless specifically agreed to in writing by
Tripod. Tripod will not be bound by conditions printed or appearing on
order blanks or copy instructions submitted by or on behalf of the
advertiser/agency. This contract supersedes all terms and conditions on
Tripod rate cards.
2. Changes and Cancellations. All artwork must be received at least five days
in advance of publication date. Cancellations or copy changes will not be
accepted after the published closing date to the update to the Tripod
site. Changes to artwork must be received by Tripod at least three days in
advance of requested change date. Any change orders must be made in
writing and acknowledged by Tripod. Change orders cannot be submitted any
more frequently than once every fourteen days. The initial term of this
contract shall be one year from the date of this contract ("Initial
Term"). This contract may not be terminated by Tripod or advertiser/agency
during the Initial Term; provided, however, either party may terminate
this contract at any time in the event of a material breach by the other
party which remains uncured after thirty (30) days' written notice thereof
This contract shall automatically be extended for an additional one year
period pursuant to the terms stated herein ("Renewal Term"), except in the
event of one of the following: (a) the contract is terminated for material
breach, (b) the contract is terminated by mutual agreement of the parties,
or (c) the parties cannot mutually agree on the termination provisions to
be in effect during the Renewal Term. The parties will commence
negotiation of the mutual termination provisions in good faith no later
than forty-five (45) days prior to the end of the Initial Term. In the
event that the parties cannot reach a mutual agreement prior to the end of
the Initial Term, or as negotiations may be extended by the parties, this
contract shall terminate on the 60th day of the Renewal Term. In the event
that Tripod desires to exercise its right to terminate this contract
during the Renewal Term because Tripod has received, and wishes to accept
a written offer in good faith from another person or entity to purchase,
for a higher amount, any inventory purchased by Lowestfare under the
contract, prior to terminating the contract, Tripod will offer Lowestfare
(pursuant to a written notice which shall set forth in reasonable detail
the material terms of such offer, or provide a copy of the offer to
purchase) an opportunity to match or exceed the offered price. Lowestfare
must respond to any notice from Tripod regarding such additional offer
within three (3) business days of receipt by Lowestfare of such notice. If
Lowestfare fails to respond or responds in the negative, Lycos is under no
further obligation to Lowestfare with respect to such inventory.
3. Payment. Lowestfare will pay Tripod 1/3 of the first year's payment upon
the contract's signing, 1/3 on Feb. 1, 1999 and the remaining 1/3 on June
1, 1999. In the Renewal
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Term, the same schedule of payments will apply. If payment is not made
within 30 days of invoice date, Tripod at its option, may terminate the
contract. In addition, advertiser/agency shall be liable to Tripod for all
attorney's fees and other costs of collection. Interest will accrue on any
past due amounts at the rate of one and one-half (1 1/2%) percent per
month, but not in excess of the lawful maximum. Tripod shall have the
right to hold the advertiser and/or its agency or agent jointly and
severally liable for all amounts due.
4. Frequency and Discounts. If Tripod fails to provide the guaranteed number
of impressions, Tripod will make good on this contract by providing
advertiser with additional impressions within one hundred twenty (120)
days of the end of the Renewal Term, and if there is no Renewal Term, the
Initial Term (the "Cure Period"). In the event that Tripod fails to
deliver the guaranteed number of impressions during the Cure Period.
Tripod will refund a pro rata portion of the amount paid by
advertiser/agency under the contract. Tripod will not make good for
under-delivery due to delays caused by advertiser/agency.
5. Licenses and Indemnification. The advertiser/agency represents that the
advertiser is the owner or is licensed to use the entire contents and
subject matter contained in its advertising and collateral information,
including, without limitation: (a) the names and/or pictures of persons;
(b) any copyrighted material, trademarks and/or depictions of trademarked
goods or services; and (c) any testimonials or endorsements contained in
any advertisement submitted to Tripod. In consideration of Tripod
acceptance of such advertisements and information for publication, the
advertiser and agency will jointly and severally indemnify and hold Tripod
harmless against all loss, liability, damage and expense of any nature
(including attorney's fees) arising out of the copying, printing,
distributing, or publishing of advertiser's/agency's advertisements. If
advertiser possesses any preexisting copyright interests in the
advertisements, advertiser grants Tripod the right to use, reproduce, and
distribute the advertisements.
6. Key Words and Phrases. Each advertiser may be given a "first right" to its
exact company name and trademarks for keyword/phrase advertising. Tripod
may pre-empt an existing key work/phrase advertiser by submitting a
three-month advertising contract. The existing contract-holder for the key
word/phrase will be provided with a two-week notification of preemption
and will receive a pro-rated refund for any unfulfilled number of
guaranteed impressions. If two or more advertisers have the same name or
trademark, the allocation will be on a first-come basis and the existing
contract will take precedence.
7. Rejections. Tripod reserves the right, without liability (unless Lycos has
not acted in good faith), to reject, omit or exclude any advertisement or
to reject or terminate any links for any reason at any time, with or
without notice to the advertiser/agency, and whether or not such
advertisement or link was previously acknowledged, accepted, or published.
8. Limitation of Liability. Tripod shall not be liable for any errors in
content or omissions.
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Should an error appear in an advertisement, Tripod liability will be
limited to the cost of the advertisement (prorated for the publishing
completed). Tripod will not be liable for any delays in delivery and/or
non-delivery in the event of an act of God, action by any government
entity, transportation, strike, network difficulties, electronic
malfunction, etc. or any feasibility, reliability, or effectiveness
related to the Tripod site. Tripod does not represent or warrant that the
Tripod site will meet the objectives or needs of advertiser/agency or any
third party. In no event will Tripod be liable for any failure,
disruption, downtime, interruption, miscalculation, delay, inaccuracy, or
any other nonperformance related to the Tripod site.
UNDER NO CIRCUMSTANCES WILL TRIPOD BE LIABLE FOR ANY SPECIAL, INDIRECT,
INCIDENTAL OR CONSEOUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, FOR
LOST INCOME OR PROFITS, IN ANY WAY ARISING OUT OF OR RELATED TO THIS
AGREEMENT, EVEN IF TRIPOD HAS BEE ADVISED AS TO THE POSSIBILITY OF SUCH
DAMAGES.
9. Choice of Law and Forum. This contract shall be interpreted and construed
in accordance with the laws of the Commonwealth of Massachusetts, without
regard to its conflicts of laws provision, and with the same force and
effect as if fully executed and performed therein. Each party hereby
consents to the personal jurisdiction of the Commonwealth of
Massachusetts, acknowledges that venue is proper in any state or Federal
court in the Commonwealth of Massachusetts, agrees that any action related
to this Agreement must be brought in a state or Federal court in the
Commonwealth of Massachusetts, and waives any objection that may exist,
now or in the future, with respect to any of the foregoing.
10. Miscellaneous. This contract cannot be sold, assigned or transferred by
advertiser/agency to any party. However, Lowestfare has the right to
assign this contract to its successors, affiliates or subsidiaries now
existing or hereafter organized provided such party is not a direct
competitor of Lycos, Inc. If any portion of the contract is found
unenforceable for any reason, the remainder will remain in full force and
effect. No waiver by Tripod shall operate as a waiver of any other
provision or any subsequent default. This document represents the entire
agreement of the parties; Tripod will not be bound by the representations
of any agents, brokers, or other third parties. Any modifications must be
in writing and signed by an authorized representative of Tripod.
The undersigned is legally empowered with due corporate authority to enter into
this Contract and agrees to be bound by the Terms and Conditions of this
contract.
Advertiser or Agent Tripod, Inc.
______________________________________ ________________________________________
______________________________________ ________________________________________
Signature Signature
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______________________________________ ________________________________________
Date Date