License Agreement - ValueClick Inc. and ValueClick Europe Ltd.
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (this "Agreement") is entered into as of this
17th day of August, 1999, by and between ValueClick, Inc., a corporation
organized under the laws of Delaware, having a place of business at 6450 Via
Real, Carpinteria, California 93013 ("ValueClick"), and ValueClick Europe
Limited, a corporation organized under the laws of the United Kingdom, having
a place of business at 50 Burnaby Street, London SW10 OPN, England ("VCEU").
RECITALS:
A. ValueClick has developed and is the owner of various proprietary
technologies and materials relating to an internet advertising network ; and
B. ValueClick seeks to sell, and VCEU seeks to acquire certain
equipment and software, and ValueClick seeks to grant, and VCEU seeks to
receive, an exclusive royalty-bearing license to exploit certain intellectual
property, and to use certain trademarks, service marks and other rights
related in any way to an internet advertising network operated by ValueClick.
AGREEMENT:
In consideration of the premises, the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS.
1.1. "ACTION" means any claim, action, suit, arbitration,
inquiry, proceeding or investigation by or before any Governmental Authority.
1.2. "AFFILIATE" means, with respect to any Person, any other
Person that, directly or indirectly, through one or more intermediary
controls, is controlled by or is under common control with such Person.
1.3. "AGREEMENT" has the meaning set forth in the preamble to
this Agreement.
1.4. "CONFIDENTIAL INFORMATION" means all materials and
information of ValueClick or VCEU, as the case may be, whether furnished
before or after the date hereof, concerning such party's business or
activities that such party considers proprietary and confidential, including
any materials generated or information obtained during the Term, including,
but not limited to, all information, Software and Technology relating to the
ValueClick Network, or the VCEU Network, as the case may be, all business,
financial and technical information of each party, and all information or
materials designated and marked by either stamping or otherwise affixing in a
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legible manner the term "confidential" or "proprietary"; provided, however,
that the term Confidential Information shall not include information or
material that: (a) is or becomes generally available to the public other than
as a result of a disclosure by the Receiving Party, (b) was available prior
to its disclosure by the Receiving Party, or (c) becomes available from a
person other than the Receiving Party who is not otherwise bound by a
confidentiality agreement with ValueClick or VCEU, as the case may be.
1.5. "DELIVERABLE" means any tangible item provided to VCEU by,
for, or on behalf of ValueClick in connection with this Agreement, including,
but not limited to Intellectual Property, the POD, computers, communications
equipment, documents, disks and the like.
1.6. "ENCUMBRANCE" means any security interest, pledge,
mortgage, lien (including, without limitation, environmental and tax liens),
charge, encumbrance, adverse claim, preferential arrangement or restriction
of any kind, including, without limitation, any restriction on the use,
voting, transfer, receipt of income or other exercise of any attributes of
ownership.
1.7. "END USERS" means all employees, officers, directors,
agents, consultants, customers, partners, dealers, distributors or sales
agents of, or approved by, VCEU, who or which are involved in the
exploitation of the VCEU Network .
1.8. "GOVERNMENTAL AUTHORITY" means any United States federal,
state or local or any foreign government, governmental, regulatory or
administrative authority, agency or commission or any court, tribunal or
judicial or arbitral body.
1.9. "GOVERNMENTAL ORDER" means any order, writ, judgment,
injunction, decree, stipulation, determination of award entered by or with
any Governmental Authority.
1.10. "INDEMNIFIED PARTY" has the meaning set forth in Section
11.2(c).
1.11. "INDEMNIFYING PARTY" has the meaning set forth in Section
11.2(c).
1.12. "INTELLECTUAL PROPERTY" means all property, regardless of
form, including all Software and Technology, used in, by or in connection
with, incorporated in, embodied in or displayed by the ValueClick Network or
used in the design, development, reproduction, operation, maintenance,
management or Modification of the ValueClick Network, and other similar
materials, including, but not limited to: (a) inventions, whether or not
patentable, whether or not reduced to practice, and whether or not yet made
the subject of a pending patent application or applications, (b) ideas and
conceptions of potentially patentable subject matter, including, without
limitation, any patent disclosures, whether or not reduced to practice and
whether or not yet made the subject of a pending patent application or
applications, (c) national (including the United States) and multinational
statutory invention registrations, patents, patent registrations and patent
applications (including all reissues, divisions, continuations,
continuations-in-part, extensions and reexaminations) and all rights
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therein provided by international treaties or conventions and all
improvements to the inventions disclosed in each such registration, patent or
application, (d) trademarks, service marks, trade dress, logos, trade names
and corporate names, whether or not registered, including all common law
rights, and registrations and applications for registration thereof,
including, but not limited to, all marks registered in the United States
Patent and Trademark Office, the trademark offices of the states and
territories of the United States of America, and the trademark offices of
other nations throughout the world, and all rights therein provided by
international treaties or conventions, (e) copyrights (registered or
otherwise) and registrations and applications for registration thereof, and
all rights therein provided by international treaties or conventions, (f)
trade secrets and confidential, technical and business information (including
ideas, formulas, compositions, inventions, and conceptions of inventions,
whether patentable or unpatentable and whether or not reduced to practice),
(g) whether or not confidential, manufacturing and production process and
techniques, research and development information, drawings, specifications,
designs, plans, proposals, technical data, copyrightable works, financial,
marketing and business data, pricing and cost information, business and
marketing plans and customer and supplier lists and information, (h) copies
and tangible embodiments of all the foregoing, in whatever form or medium,
(i) all rights to sue or recover and retain damages and costs and reasonable
attorneys' fees for present and past infringement of the foregoing; provided,
however, that Intellectual Property shall not include the ValueClick Marks or
the POD.
1.13. "INTERNET ADVERTISING FIELD" means all applications of
advertising on or through the internet in any form whatsoever.
1.14. "LAW" means any federal, state, local or foreign statute,
law, ordinance, regulation, rule, code, order or other requirement or rule of
law.
1.15. "LOSS" has the meaning set forth in Section 11.2(a).
1.16. "MODIFICATIONS" means, with respect to any item, all
modifications, translations, adaptations, improvements, redesigns,
conversions, compilations, upgrades or other derivative versions of, or
changes or additions to, such item or any portion of such item.
1.17. "OBJECTION NOTICE" has the meaning set forth in Section
6.2.
1.18. "POD" means all equipment, Software, and Modifications to
the foregoing used, or to be used, by ValueClick in connection with the
development, marketing, operation, maintenance and management of the
ValueClick Network, including, but not limited to, those items described on
Schedule 1 attached hereto and made a part hereof, and all warranties
pertaining to the foregoing.
1.19. "PERSON" means any individual, partnership, joint venture,
corporation, limited liability company, trust, incorporated organization,
Governmental Authority or other entity.
1.20. "RECEIVING PARTY" has the meaning set forth in Section
10.1.
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1.21. "REPRESENTATIVE" means, as to any entity, such entity's
affiliates and its and their directors, officers, employees, agents, advisors
(including, without limitation, counsel and accountants) and controlling
person.
1.22. "ROYALTY" has the meaning set forth in Section 5.2.
1.23. "SOFTWARE" means any and all computer software, whether
proprietary to either party hereto or proprietary to or licensed by a third
party software vendor (including a fully paid up license from such third
party software vendors), including, but not limited to, executable object
code (but excluding source code) that ValueClick either owns or has the right
to use pursuant to a license, databases, screens, user interfaces, report
formats, file formats, templates, menus, buttons and icons, and all
warranties, materials, manuals, design notes and other documentation related
thereto or associated therewith.
1.24. "TECHNOLOGY" means all designs, formulas, procedures,
methods, apparatus, ideas, creations, improvements, materials, processes,
inventions, works of authorship, techniques, data, know how, algorithms,
programs, subroutines, tools, specifications and related warranties and
technology.
1.25. "TERM" has the meaning set forth in Section 9.1.
1.26. "TERRITORY" means the geographic area defined in Schedule
2 to this Agreement, as may be amended in writing by the parties from time to
time.
1.27. "THIRD PARTY CLAIMS" has the meaning set forth in Section
11.2(c).
1.28. "VCEU" has the meaning set forth in the preamble to this
Agreement.
1.29. "VCEU INDEMNIFIED PARTY" has the meaning set forth in
Section 11.2(a).
1.30. "VCEU NETWORK" means a global internet advertising network
consisting of websites upon which VCEU is permitted to place advertising,
including, but not limited to banner advertisements, the advertising sales
activity for which is conducted out of offices maintained solely in the
Territory by VCEU and its dealers, distributors, licensees and sales agents,
including features which permit VCEU to pay the owners of such host websites,
and charge such website advertisers, based upon the number of Persons who
click on such advertisement.
1.31. "VALUECLICK" has the meaning set forth in the preamble to
this Agreement.
1.32. "VALUECLICK INDEMNIFIED PARTY" has the meaning set forth
in Section 11.2(b).
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1.33. "VALUECLICK MARKS" means all trade names, trademarks,
service marks, logos, trade dress, or other insignia of ValueClick now or in
the future used on or in connection with the ValueClick Network.
1.34. "VALUECLICK NETWORK" means a global internet advertising
network consisting of websites upon which ValueClick is permitted to place
advertising, including, but not limited to, banner advertisements, the
advertising sales activity for which is conducted out of offices maintained
in the United States of America and other countries outside the Territory by
ValueClick and its dealers, distributors, licensees and sales agents,
including features which permit ValueClick to pay website owners, and charge
website advertisers, based upon the number of Persons who click on the
advertisement.
2. PURCHASE OF POD.
2.1. THE POD. Subject to the terms and conditions set forth in
this Agreement, VCEU agrees to purchase and ValueClick agrees to sell,
convey, transfer and deliver the POD to VCEU, free and clear of any and all
Encumbrances, no later than sixty (60) days after the date hereof. The POD
shall be of the same type and capable of the same level of operation as that
used by ValueClick in connection with the ValueClick Network at the time of
the transfer pursuant hereto.
2.2. UPGRADES. Without additional consideration, ValueClick
shall sell, transfer, convey and deliver to VCEU each Modification to the POD
that ValueClick implements in connection with the ValueClick Network within a
reasonable time after such Modification is implemented. Upon the transfer
and installation of each Modification, the POD shall have the same
capabilities as similar equipment and software used by ValueClick at the time
ValueClick implemented such Modification.
3. TECHNOLOGY LICENSE.
3.1. GRANT OF LICENSE. ValueClick hereby grants to VCEU, and
VCEU hereby accepts and receives from ValueClick, an exclusive,
non-transferable, perpetual license (subject to termination as provided
herein) to use, offer, market, promote, modify and exploit the Intellectual
Property in connection with the VCEU Network in the Territory. This license
to VCEU shall include any and all rights now or in the future owned or
licensed by ValueClick necessary to enable VCEU and all End Users to enjoy
the benefits of the foregoing licensed rights including, but not limited to ,
the right to grant to any other Person the right to use, exploit, develop or
market any of the foregoing licensed rights. ValueClick shall not be
required to provide source code to VCEU.
3.2. RIGHTS TO DATA. VCEU shall have sole and exclusive
ownership, as against ValueClick, of all right, title and interest in and to
all data generated in connection with the license granted to VCEU under
Section 3.1 and the purchase of the POD in Section 2.1, in all tangible media
of expression whatsoever, including all paper, electronic, magnetic and
optical formats now known or hereafter developed, and including all related
Intellectual Property in and to the foregoing (the "Advertising
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Data"). ValueClick hereby grants to VCEU, and VCEU hereby accepts and
receives from ValueClick, a non-exclusive, perpetual license to use, sell,
lease, license, offer, market, promote, distribute, reproduce, modify and
exploit in connection with the VCEU Network any Intellectual Property
reasonably necessary to perceive, view, print, interpret or analyze the
Advertising Data. Subject to the provisions of this Agreement, ValueClick
hereby releases, discharges and holds VCEU and any End User harmless from and
against any and all claims by ValueClick that any Intellectual Property is
infringed, or any right of ValueClick is otherwise violated, by the use and
exploitation of the Advertising Data by VCEU or its assigns.
3.3. MODIFICATIONS. ValueClick shall have sole and exclusive
ownership of all right, title and interest in and to all Modifications of the
Intellectual Property licensed under this Section 3 and conceived by the
employees or contractors of ValueClick; provided, however, that all such
Modifications conceived by the employees or contractors of ValueClick shall
automatically become subject to the licenses granted to VCEU in Sections 3.1
and 4.1, without any adjustment or modification of the royalties payable
pursuant to Section 5.2. VCEU shall have sole and exclusive ownership of all
right, title and interest in and to all Modifications of the Intellectual
Property licensed under this Section 3 and conceived by the employees or
contractors of VCEU; provided, however, that all such Modifications conceived
by the employees or contractors of VCEU shall automatically be licensed to
ValueClick for use solely in connection with the ValueClick Network without
any additional consideration. Any Modifications requested by VCEU due to
VCEU's special needs shall be provided by ValueClick at standard industry
rates.
4. TRADEMARK LICENSE.
4.1. GRANT OF LICENSE. ValueClick hereby grants to VCEU, and
VCEU hereby accepts and receives from ValueClick, an exclusive, perpetual,
non-transferable right and license to use and reproduce the ValueClick Marks
in connection with the VCEU Network. This license to VCEU shall include any
and all rights now or in the future owned or licensed by ValueClick necessary
to enable VCEU and any End Users to enjoy the benefits of the foregoing
licensed rights including, but not limited to, the right to grant to any
other Person the right to use, exploit, develop or market any of the
foregoing licensed rights.
4.2. QUALITY STANDARDS. VCEU agrees that the nature and
quality of all products provided by VCEU and all services rendered by VCEU in
connection with the ValueClick Marks shall reasonably conform to standards
set by ValueClick. VCEU agrees to cooperate with ValueClick in facilitating
ValueClick's control of the nature and quality of VCEU's use of the
ValueClick Marks, to permit reasonable, periodic inspection of VCEU's
operations, at reasonable times and with reasonable notice, and to supply
ValueClick with specimens of all uses of the ValueClick Marks upon
ValueClick's reasonable written request.
4.3. USE OF THE MARKS. VCEU acknowledges the sole and
exclusive ownership of the ValueClick Marks by ValueClick, agrees that it
will do nothing inconsistent with such ownership, and that all use of the
ValueClick Marks by VCEU
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and all goodwill developed therefrom shall inure to the benefit of and be on
behalf of ValueClick. VCEU agrees that nothing in this Agreement shall give
VCEU any right, title or interest in the ValueClick Marks other than the
right to use the ValueClick Marks in accordance with this Agreement. VCEU
agrees that it shall not file nor cause the filing of any applications to
register any mark identical or similar to the ValueClick Marks in the
Territory and, upon ValueClick's written request, VCEU shall immediately
transfer all of its right, title and interest in such applications or
registrations to ValueClick.
5. PURCHASE PRICE/LICENSE AND SERVICE FEE COMMISSIONS.
5.1. PURCHASE PRICE. For the purchase of the POD, VCEU shall
pay to ValueClick within thirty (30) days from the date hereof, but prior to
delivery, the sum of $200,000.00 payable in U.S. funds at the address of
ValueClick set forth above.
5.2. ROYALTY PAYMENTS/LICENSE FEES. VCEU shall pay to
ValueClick, on a monthly basis (within thirty (30) days after the end of each
month during the Term), a royalty (the "Royalty") in an amount equal to five
percent (5%) of the advertising revenues received by VCEU from the VCEU
Network.
5.3. RECIPROCAL AGENCY FEES ValueClick and VCEU will extend
agency discounts to one another to run on each other's networks. For example,
if VCEU sells a contract to run on ValueClick's network, VCEU will receive
the standard agency discount, (i.e. 15%) provided by ValueCick. One the other
hand, if ValueClick sells a contract to run on VCEU's network, ValueClick
will receive the standard agency discount, (i.e., 15%), provided by VCEU.
6. VCEU RESPONSIBILITIES.
6.1. FINANCIAL STATEMENTS. VCEU shall provide to ValueClick
monthly financial statements no later than thirty (30) days following the end
of each full month during the Term. VCEU shall keep written records
necessary to verify such financial statements for a period of at least seven
(7) years. Upon thirty (30) days written notice to VCEU, ValueClick shall
have the right at any time during regular business hours, but not more
frequently than quarterly to have a designated officer of ValueClick examine
such records to the extent necessary to verify royalties payable to
ValueClick.
6.2. ANNUAL AUDIT. Each year, VCEU shall engage the same
accounting firm that is to audit the financial statements of ValueClick, to
conduct an audit of the financial statements of VCEU. VCEU shall provide its
audited financial statements promptly to ValueClick. If ValueClick disagrees
with VCEU's computation of royalties, ValueClick may, within forty-five (45)
days after receipt of the audited financial statements, deliver written
notice (an "Objection Notice") to VCEU setting forth ValueClick's calculation
of royalties. If an Objection Notice is not delivered within such time
period, the amount of royalties set forth in VCEU's corporate records shall
be conclusive and binding upon ValueClick. Each party to this Agreement
shall use reasonable efforts to resolve any disputes as to the computation of
royalties. Any
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dispute over royalties shall not affect the ongoing validity of this
Agreement or the licenses granted to VCEU hereunder.
6.3. LINKS FROM HOME PAGE. VCEU shall display on its home page
a link to ValueClick's website.
7. RESPONSIBILITIES OF VALUECLICK.
7.1. INSTALLATION OF THE POD. ValueClick shall, in accordance
with best industry practice and promptly after delivery to VCEU, install the
POD and any Modifications thereto at such place in, or in the vicinity of,
London, England as designated by VCEU.
7.2. INTELLECTUAL PROPERTY DEVELOPMENT. Throughout the Term,
VlaueClick shall use its best efforts to continually develop, improve and
enhance the POD, the Intellectual Property and any Modifications to the
foregoing licensed or purchased hereunder so that such items are the "state
of the art" in the Internet Advertising Field.
7.3. LINKS FROM HOME PAGE. ValueClick shall display on its
home page a link to VCEU's website.
8. REPRESENTATIONS, WARRANTIES AND COVENANTS.
8.1. REPRESENTATIONS, WARRANTIES AND COVENANTS OF VALUECLICK.
ValueClick hereby represents, warrants and covenants to VCEU that:
(a) ValueClick is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
all requisite corporate power and authority to carry on its business as now
conducted and as proposed to be conducted.
(b) All corporate action on the part of ValueClick, its
officers, directors and shareholders necessary for the authorization,
execution and delivery of this Agreement and the performance of all
obligations of ValueClick hereunder, has been taken prior to the date hereof,
and this Agreement constitutes a valid and legally binding obligation of
ValueClick, enforceable in accordance with its terms.
(c) ValueClick is the sole and exclusive owner of all
right, title and interest, free and clear of any liens or other Encumbrances,
to the POD, the Intellectual Property, and any Modifications to the
foregoing, or has valid licenses or authorizations necessary to use any third
party intellectual property incorporated into, or used in connection with,
the POD, the Intellectual Property, the ValueClick Network or any
Modifications to the foregoing, including all rights, licenses and
authorizations to sell the POD and related Modifications and license the use
of the Intellectual Property, and any Modifications to the foregoing in the
Territory. ValueClick has not assigned, conveyed, licensed, transferred or
granted any interest, right or license to
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any third party in or to the POD, the Intellectual Property , the ValueClick
Marks or any Modifications to the foregoing that conflicts with the rights
conveyed herein.
(d) ValueClick has not received notification from any
third party that the POD, the Intellectual Property, the ValueClick Marks or
any Modifications to the foregoing violate or infringe any intellectual
property or other rights of any third party.
(e) There are no Actions by or against ValueClick
relating to the POD, the Intellectual Property, the ValueClick Marks or any
Modifications to the foregoing pending before any Governmental Authority
(or, to the best knowledge of ValueClick, threatened to be brought by or
before any Governmental Authority). Neither ValueClick, the POD, the
Intellectual Property nor any Modification to the foregoing is subject to any
Governmental Order (nor, to the best knowledge of ValueClick, are there any
such Governmental Orders threatened to be imposed by any Governmental
Authority).
(f) The exercise by VCEU and any End User of its rights
in accordance with the terms of this Agreement shall not violate or infringe
any intellectual property or other rights of any third party.
(g) Each Deliverable shall conform to the specifications
and operational requirements associated with such Deliverable, and shall be
free from material defect, errors and faulty workmanship in accordance with
best industry practice.
(h) Each Deliverable shall be free from physical defects
in the media in which it is embodied.
(i) The POD, the Intellectual Property and any
Modifications to the foregoing conveyed or licensed to VCEU under this
Agreement shall at all times during this Agreement be sufficient to develop,
own, market, operate, maintain and manage the VCEU Network in the Territory
to the same extent and capabilities as the ValueClick Network is developed,
owned, marketed, operated, maintained and managed by ValueClick in the United
States at the time such items are conveyed or licensed to VCEU. The VCEU
Network shall throughout the Term have substantially the same capabilities
and be able to operate substantially to the same extent as the ValueClick
Network.
(j) Without VCEU's prior written consent, ValueClick
shall not (i) use, or license the use of, the Intellectual Property, the
ValueClick Marks, or any Modifications to the foregoing in the Internet
Advertising Field through any sales offices located in the Territory, (ii)
solicit for inclusion in the ValueClick Network host websites that are
directed primarily at internet users located in the Territory, (iii) solicit
advertising from advertisers whose advertising is directed primarily at
internet users located in the Territory, (iv) use, sell, license or lease a
POD, or similar assets, for use in the Territory, or (v) operate or permit
any other Person to operate, directly or indirectly, a sales office or other
facility in the Territory.
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(k) Without VCEU's prior written consent, ValueClick
shall not insert into any Deliverable any (i) "back door," "time bomb," "drop
dead" device or other software routinely designed to disable a computer
program automatically with the passage of time or under the positive control
of any person, or (ii) any virus, "Trojan horse," "worm" or other software
routines or hardware components designed to permit unauthorized access, to
disable, erase or otherwise harm software, hardware or data, or to perform
any other similar actions.
(l) ValueClick has and shall maintain liability insurance
coverage sufficient for its indemnification obligations hereunder that
provides coverage up to a minimum of $1,000,000 per occurrence and $3,000,000
total coverage.
(m) ValueClick shall use its best efforts to ensure that
it conducts its business so as to not cause a violation of any law, rule,
regulation, order, judgment or decree applicable to ValueClick or to the
Intellectual Property that would materially or adversely affect the ability
of VCEU to utilize the licenses granted in Sections 3.1 and 4.1.
8.2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF VCEU. VCEU
hereby represents, warrants and covenants to ValueClick that:
(a) VCEU is a corporation duly organized, validly
existing and in good standing under the laws of the United Kingdom and has
all requisite corporate power and authority to carry on its business as now
conducted and as proposed to be conducted.
(b) All corporate action on the part of VCEU, its
officers, directors and shareholders necessary for the authorization,
execution and delivery of this Agreement and the performance of all
obligations of VCEU hereunder, has been taken prior to the date hereof, and
this Agreement constitutes a valid and legally binding obligation of VCEU,
enforceable in accordance with its terms.
(c) Without ValueClick's prior written consent, VCEU
shall not (i) use, or license the use of, the Intellectual Property, the
ValueClick Marks, or any Modifications to the foregoing in the Internet
Advertising Field through sales offices located outside the Territory, (ii)
solicit for inclusion in the VCEU Network host websites that are directed
primarily at internet users located outside the Territory, (iii) solicit
advertising from advertisers to the extent that such advertising is directed
primarily at internet users located outside the Territory, (iv) use, sell,
license or lease a POD, or similar assets, for use outside the Territory, or
(v) operate or permit any other Person to operate, directly or indirectly, a
sales office or other facility outside the Territory..
9. TERM AND TERMINATION.
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9.1. TERM OF AGREEMENT. This Agreement shall commence on the
date hereof and shall be in force in each country of the Territory until
terminated in accordance with Section 9.2 (the "Term").
9.2. TERMINATION. This Agreement may be terminated at any time:
(a) by the mutual consent of VCEU and ValueClick;
(b) by ValueClick if there has been a breach of any
representation and warranty, covenant or agreement of VCEU set forth in this
Agreement, which breach has not been cured within forty-five (45) days after
written notification thereof has been received by VCEU; or
(c) by VCEU if:
(i) there has been a breach of any representation
and warranty, covenant or agreement of ValueClick set forth in this
Agreement, which breach has not been cured within forty-five (45) days after
written notification thereof has been received by ValueClick;
(ii) a filing is made by or against (or an order for
relief is entered) ValueClick in a voluntary or an involuntary proceeding,
brought and maintained in good faith, under any bankruptcy, insolvency,
reorganization or receivership law or an admission seeking relief, which
filing or order is not vacated within 90 days of its entry;
(iii) a receiver is appointed over the assets of
ValueClick, or the assumption of custody, attachment or sequestration by a
court of competent jurisdiction over the ValueClick assets; or
(iv) there has been a final, non-appealable order or
judgment by a court of competent jurisdiction that all or any portion of a
patent or license owned by ValueClick that is necessary for the operation of
the VCEU Network is declared invalid or unenforceable, or is found to be
infringed by any direct competitor of VCEU in the Internet Advertising Field.
9.3. EFFECT OF TERMINATION. In the event of termination of
this Agreement as provided in Section 9.2, this Agreement shall forthwith
become void and there shall be no liability thereafter on the part of either
party hereto, except (a) as set forth in Sections 10, 11 and 12, and (b) that
nothing herein shall relieve either party from liability for any breach of
this Agreement. Notwithstanding the foregoing, if this Agreement is
terminated pursuant to subsection 9.2(c), then, in addition to any remedies
or rights at law or in equity, VCEU may, at its sole option, continue to use,
royalty-free, solely in connection with the VCEU Network the Intellectual
Property, the ValueClick Marks and any Modification to the foregoing licensed
rights under this Agreement so long as the use is consistent with the use of
such items prior to the termination of this Agreement.
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9.4. TERMINATION OF EXCLUSIVITY. If VCEU fails to recognize
gross revenues of at least $1,000,000 during the twelve (12) full calendar
months following the date of this Agreement (the "Revenue Period") and
ValueClick notifies VCEU in writing of its election to declare the license
granted in Section 3.1 to be nonexclusive within thirty (30) days following
the end of the Revenue Period, then such license shall become non-exclusive
forty-five (45) days after VCEU's receipt of such written notice from
ValueClick. If ValueClick fails to so notify VCEU within ninety (90) days
following the end of the Revenue Period, ValueClick's rights under this
Section 9.4 shall terminate.
10. CONFIDENTIALITY.
10.1. TREATMENT OF CONFIDENTIAL INFORMATION. The party
receiving any Confidential Information (the "Receiving Party") shall maintain
such Confidential Information in confidence and shall not use such
Confidential Information for any purpose other than the purposes contemplated
by this Agreement and agrees, except as required by Law, to keep all
Confidential Information confidential and not to disclose any Confidential
Information to any person other than Representatives who are actively and
directly participating in the exploitation of the licenses granted under this
Agreement or who otherwise need to know the Confidential Information for the
purposes relating to the other party's internet advertising network. Such
party shall cause those Representatives to observe the terms of this Section
10.1. In the event that either party is requested pursuant to, or required
by, legal process to disclose any Confidential Information or any other
information concerning the other party, the party to which the request or
order is made shall provide the other party with prompt notice of such
request or requirement.
10.2. RETURN OF CONFIDENTIAL INFORMATION. Upon termination of
this Agreement pursuant to the provisions of Section 9, each party shall
deliver to the other party any written, printed or other materials embodying
Confidential Information of the other party in its possession or in the
possession of any of its Representatives; provided, however, that the party
in possession of the Confidential Information may, in lieu of returning such
Confidential Information, destroy all such Confidential Information and work
product containing Confidential Information.
11. INDEMNIFICATION AND RELEASE.
11.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties contained in this Agreement shall survive
indefinitely. Neither the period of survival nor the liability of either
party with respect to its obligations shall be reduced by an investigation
made at any time by or on behalf of the Indemnified Party. If written notice
of a claim has been given prior to the expiration of the applicable
representations and warranties, then the relevant representations and
warranties shall survive as to such claim, until such claim has been finally
resolved.
11.2. Indemnification.
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(a) VCEU and its Affiliates, officers, directors,
employees, agents, successors and assigns (each a "VCEU Indemnified Party")
shall be indemnified and held harmless by ValueClick for any and all
liabilities, losses, damages, claims, costs and expenses, interest, awards,
judgments and penalties (including, without limitation, reasonable attorney's
and consultants' fees and expenses) actually suffered or incurred by them
(including, without limitation, any action brought or otherwise initiated by
any of them)(hereinafter a "Loss"), arising out of or resulting from:
(i) the breach of any representation or warranty,
including the infringement of any Intellectual Property, made by ValueClick
contained in this Agreement; or
(ii) the breach of any covenant or agreement made by
ValueClick contained in this Agreement.
(b) ValueClick, its Affiliates, officers, directors,
employees, agents, successors and assigns (each a "ValueClick Indemnified
Party") shall be indemnified and held harmless by VCEU for any and all Losses
arising out of or resulting from the breach of any representation, warranty,
covenant or agreement by VCEU contained in this Agreement.
(c) A VCEU Indemnified Party or a ValueClick Indemnified
Party, as the case may be (each an "Indemnified Party"), shall give the party
providing indemnification hereunder (the "Indemnifying Party") notice of any
matter that such Indemnified Party has determined has given or could give
rise to a right of indemnification under this Agreement, within 60 days of
such determination, stating the amount of the Loss, if known, and the method
of computation thereof, and containing a reference to the provisions of this
Agreement in respect of which such right of indemnification is claimed or
arises; provided, however, that the failure to provide such notice shall not
release the Indemnifying Party from any of its obligations under this Section
11, except to the extent the Indemnifying Party is materially prejudiced by
such failure and shall not relieve Indemnifying Party from any other
obligation or Liability that it may have to any Indemnified Party otherwise
than under this Section 11. The obligations and liabilities of the
Indemnifying Party under this Section 11 with respect to Losses arising from
claims of any third party, which are subject to the indemnification provided
for in this Section 11 (the "Third Party Claims") shall be governed by and
contingent upon the following additional terms and conditions: if an
Indemnified Party shall receive notice of any Third Party Claim, the
Indemnified Party shall give the Indemnifying Party notice of such Third
Party Claim within ten (10) days of the receipt by the Indemnified Party of
such notice; provided, however, that the failure to provide such notice shall
not release the Indemnifying Party from any of its obligations under this
Section 11, except to the extent the Indemnifying Party is materially
prejudiced by such failure and shall not relieve Indemnifying Party from any
other obligation or Liability that it may have to any Indemnified Party
otherwise than under this Section 11. If the Indemnifying Party acknowledges
in writing its obligation to indemnify the Indemnified Party hereunder
against any Losses that may result from such Third Party Claim, then the
Indemnifying Party shall be entitled to assume and control the defense of
such Third
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Party Claim at its expense and through counsel of its choice if it
gives notice of its intention to do so to the Indemnified Party within ten
(10) days of the receipt of such notice from the Indemnified Party; provided,
however, that if there exists or is reasonably likely to exist one or more
legal defenses available to it that is in conflict with one or more defenses
available to the Indemnifying Party, or a conflict of interest that would
make it inappropriate in the judgment of the Indemnified Party, in its sole
and absolute discretion, for the same counsel to represent both the
Indemnified Party and the Indemnifying Party, the Indemnified Party shall be
entitled to retain its own counsel, in each jurisdiction for which the
Indemnified Party determines counsel is required, at the expense of the
Indemnifying Party. In the event that the Indemnified Party is, directly or
indirectly, conducting the defense against any such Third Party Claim, the
Indemnifying Party shall cooperate with the Indemnified Party in such defense
and make availabe to the Indemnified Party, at the Indemnifying Party's
expense, all such witnesses, records, materials and information in the
Indemnifying Party's possession or under the Indemnifying Party's control
relating thereto as is reasonably required by the Indemnified Party. No such
Third Party Claim may be settled by the Indemnifying Party without the prior
written consent of the Indemnified Party unless such settlement is for
monetary damages, exclusive of any injunctive or other equitable relief.
12. DISPUTE RESOLUTION.
12.1. NEGOTIATION. The parties shall attempt in good faith to
resolve any dispute arising out of or relating to this Agreement promptly by
good faith negotiation. Either party may give the other party written notice
of any dispute not resolved in the normal course of business. Within twenty
(20) days after delivery of said notice, the parties shall meet at a mutually
acceptable time and place, and thereafter as often as they deem necessary, to
exchange relevant information and to attempt to resolve the dispute. If the
matter has not been resolved within sixty (60) days of the disputing party's
notice, or if the parties fail to meet within twenty (20) days, either party
may initiate mediation of the controversy or claim as provided in Section
12.2 below.
12.2. MEDIATION. If any dispute has not been resolved by
negotiation as provided in Section 12.1 hereof, the parties shall endeavor to
resolve the dispute by mediation under the then current Model Procedure for
Mediation of Business Disputes of the Center for Public Resources, Inc.
("CPR"), 366 Madison Avenue, New York, New York 10017. The neutral third
party will be selected from the CPR Panel of Neutrals. If the parties
encounter difficulty in agreeing on a neutral, they will seek the assistance
of CPR in the selection process. Unless otherwise agreed by the parties, the
place of mediation shall be Los Angeles, California
12.3. ARBITRATION. Any dispute that has not been resolved by
mediation, as provided in Section 12.2 hereof within sixty (60) days of the
initiation of such procedure, shall be finally settled by arbitration
conducted expeditiously in accordance with the CPR Rules for Non-Administered
Arbitration of Business Disputes by a sole arbitrator; provided, however,
that if one party has requested the other party to participate in a
non-binding dispute resolution procedure under Sections 12.1 or 12.2 hereof
and the other party has failed to participate therein, the other party may
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initiate arbitration before expiration of the above time period. The
arbitration shall be governed by the laws of the State of California, and
judgment upon the award rendered by the arbitrator may be entered by any
court having jurisdiction thereof. The place of arbitration shall be Los
Angeles, California. The arbitrator is not empowered to award damages in
excess of compensatory damages, which shall not include consequential
damages, and each party hereby irrevocably waives any damages in excess of
such compensatory damages.
12.4. COSTS. The parties shall bear their respective costs in
connection with the dispute resolution procedures described in Sections 12.1,
12.2 and 12.3 hereof, except that the parties shall share equally the fees
and expenses of any neutral third party or arbitrator and the costs of any
facility used in connection with such dispute resolution procedures.
12.5. REPRESENTATION BY COUNSEL. With respect to the
non-binding procedures provided in Sections 12.1 or 12.2 hereof, if a
negotiator intends to be accompanied at a meeting by an attorney, the other
negotiator shall be given at least three (3) working days' notice of such
intention and may also be accompanied by an attorney. All negotiations
relating to any non-litigated procedure provided herein are confidential and
shall be treated as compromise and settlement negotiations for purposes of
the rules of evidence of all applicable jurisdictions.
13. MISCELLANEOUS.
13.1. HEADINGS. The descriptive headings of the Sections
contained in this Agreement are for convenience of reference only and in no
way limit or affect the terms or conditions of this Agreement.
13.2. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, by courier service, by cable, by telecopy, by telegram, by telex or
by registered or certified mail (postage prepaid, return receipt requested)
to the respective parties at the following addresses (or at such other
address for a party as shall be specified in a notice given in accordance
with this Section 13.2):
IF TO VALUECLICK:
ValueClick, Inc.
6450 Via Real
Carpinteria, California 93013
Fax: (805) 566-0190
Attn: Brian Coryatt
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IF TO VCEU:
ValueClick Europe
50 Burnaby Street
London SW10 OPN
Fax: 011-44-171-795-2113
Attn: Steve Umberger
With a copy to (which shall not comprise notice hereunder):
Holland & Knight LLP
50 N. Laura Street, Suite 3900
Jacksonville, Florida 32202
Fax: (904) 358-1872
Attn: James L. Main, Esquire
13.3. SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced,
the parties hereto shall negotiate in good faith to modify this Agreement so
as to effect the original intent of the parties as closely as possible in an
acceptable manner in order that the transactions contemplated hereby are
consummated as originally contemplated to the greatest extent possible.
13.4. RELATIONSHIP BETWEEN VALUECLICK AND VCEU. Nothing herein
shall create, be deemed to create or be construed as creating any
partnership, employer/employee, joint venture, franchiser/franchisee or
agency relationship between ValueClick and VCEU or shall be deemed to render
ValueClick or VCEU liable for any debts or obligations of the other party
which the other party may have to any third party. Neither of the parties
hereto nor any of their employees or agents shall have the power or authority
to bind or obligate the other party.
13.5. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject mater hereof and
thereof and supersedes all prior agreements and undertakings, both written
and oral, between ValueClick and VCEU with respect to the subject matter
hereof and thereof.
13.6. ASSIGNMENT. This Agreement may not be assigned by
operation of law or otherwise without the express written consent of
ValueClick and VCEU (which consent may be granted or withheld in the sole
discretion of ValueClick and VCEU).
13.7. NO THIRD PARTY BENEFICIARIES. Except for the provisions of
Section 11 relating to Indemnified Parties, this Agreement shall be binding upon
and inure
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solely to the benefit of the parties hereto and their permitted assigns, and
nothing herein, express or implied, is intended to or shall confer upon any
other Person any legal or equitable right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
13.8. AMENDMENT. This Agreement may not be amended or modified
except by an instrument in writing signed by, or on behalf of, ValueClick and
VCEU.
13.9. GOVERNING LAW/JURISDICTION. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of
California applicable to contracts executed in and to be performed entirely
within that state. All actions and proceedings arising out of or relating to
this Agreement shall be heard and determined in any California state or
federal court sitting in the County of Orange and the parties hereby submit
to the personal jurisdiction of such court. Any and all service of process
and any other notice in any such suit, action, claim, proceeding or
investigation shall be effective against any party if given by registered or
certified mail, return receipt requested, or by any other means of mail that
requires a signed receipt, postage prepaid, mailed to such party as herein
provided.
13.10. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate
counterparts and delivered by facsimile, each of which when executed shall be
deemed to be an original, but all of which taken together shall constitute
one and the same agreement.
13.11. NON-WAIVER. A failure of either party to enforce at any
time any term, provision or condition of this Agreement, or to exercise any
right or option herein, shall in no way operate as a waiver thereof, nor
shall any single or partial exercise preclude any other right or option
herein; in no way whatsoever shall a waiver of any term, provision or
condition of this Agreement be valid unless in writing, signed by the waiving
party, and only to the extent set forth in such writing.
IN WITNESS WHEREOF, VCEU and ValueClick have caused this
Agreement to be signed and delivered by their duly authorized officers, all
as of the date hereof.
VALUECLICK, INC.
By: /s/ James R. Zarley
---------------------------
Name: James R. Zarley
---------------------------
Title: CEO
---------------------------
VALUECLICK EUROPE, LIMITED
By: [Illegible]
---------------------------
Name:
---------------------------
Title:
---------------------------
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SCHEDULE 1
DESCRIPTION OF POD
The POD includes the necessary hardware and software to manage the VCEU
advertising network. In Europe, the POD will be similar in function to the
POD currently installed and running the ValueClick advertising network. This
includes, but is not limited to, the following:
Hardware
5 slave servers
1 "Pollux" system (main software system)
2 Equalizers
1 Switch
Software and OS
FreeBSD for all servers
ValueClick proprietary banner server engine
ValueClick proprietary administration software
Misc. software, e.g., SSH and Verisign for secure transactions
The POD will include all equipment and software anticipated to handle the
startup workload. In addition, hardware and software will be installed
within the original POD to accommodate the growth that is expected through
the first several months of business. This will allow both sides to focus on
growing the business from a customer perspective, rather than being slowed
down by the continual adding of small increments of equipment.
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SCHEDULE 2
TERRITORY
1. Austria
2. Belgium
3. Denmark
4. Great Britain (which shall include England, Scotland, Wales and
Northern Ireland)
5. France
6. Finland
7. Germany
8. Greece
9. Ireland
10. Italy
11. Luxembourg
12. Netherlands
13. Norway
14. Portugal
15. Spain
16. Sweden
17. Switzerland
18. Any other country recognized as being located in Western Europe
ii