EXHIBIT 10.10
CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF
THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
MARKETING AND SERVICES AGREEMENT
This Marketing and Services Agreement ("Agreement") is entered into as of April
30, 1999 (the "Effective Date") by and between SmartAge Corp., a Delaware
corporation, with principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("SmartAge") and Excite, Inc., a Delaware corporation, with
principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ("Excite").
RECITALS
A. SmartAge is a provider of Internet related services to small and
growing companies which services are accessible through the Internet addresses:
▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇ including its SmartClicks' banner exchange service, which
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provides a proprietary technology and a network of participating Web sites from
which to display and distribute ad banners for members.
B. Excite maintains sites on the Internet at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇.▇▇▇ (the
"Excite Site"), at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (the "Classifieds2000 Site")
and at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇ (the "WebCrawler Site") and others
(collectively, the "Excite Network") which, among other things, allow its users
to search for and access content and other sites on the Internet. For purposes
of this Agreement, the parties hereby acknowledge that the terms and conditions
contained in this Agreement do not apply to Excite's rights with respect to the
site on the Internet located at ▇▇▇▇://▇▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇ and/or other URLs or
locations designated by Netscape Communications Corporation.
C. Excite desires to have SmartAge establish a content affiliate network
for Excite and to market such network to its users, and to have Affiliate Data
(as defined below) be jointly owned by the parties.
D. Excite desires to have SmartAge establish an automated advertising
buying service on its behalf for purposes of selling advertising placements on
the Excite Network (as defined below), and to provide SmartAge with a portion of
the revenues generated from the service. Excite further desires to sell
advertising placements on the Excite Network through an automated advertising
buying service that SmartAge shall establish for users of the SmartAge Site (as
defined below), and to provide SmartAge with a portion of the revenues from such
sales.
E. SmartAge desires to establish a banner exchange service for Excite and
to provide Excite with Allocated Impressions (as defined in Section 4.4)
generated from the service.
F. SmartAge desires to sell SmartAge and third party provided services to
users of the Excite Network, and to provide Excite with a portion of the
revenues generated from such sales.
G. SmartAge desires to provide Excite with Stock Purchase Warrants (as
defined below) that shall be exercisable dependent on Excite achieving certain
performance milestones.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, SmartAge and Excite hereby agree as
follows:
1. DEFINITIONS.
1.1 "Account" means a device by which a Clicks' Member Site stores accrued
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credits which are then used by such Clicks' Member in displaying its ad banner
within the SmartClicks' Network. Each such Account contains information that
identifies the Clicks' Member Site, statistics generated from the Clicks' Member
Site, and the Clicks' Member's ad banner(s).
1.2 "Active Affiliate"- see definition under 1.6 below.
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1.3 "Active Clicks' Member" means any Clicks' Member whose associated
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Clicks' Member Site meets each of the following conditions: 1) it has been
approved by SmartAge; 2) is enabled to show ad banners using the Banner Exchange
Technology; 3) has submitted its own ad banner which has been approved by
SmartAge to be shown on the SmartClicks' Network; and 4) has displayed at least
one ad banner served by the Banner Exchange Technology in a given month.
1.4 "Advertiser" means a third party that purchases or is considering
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purchasing Available Inventory.
1.5 "Advertiser Data" means information about an Advertiser that shall be
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obtained electronically by SmartAge as part of the process of such Advertiser
placing an order for Available Inventory via the Buying Services (as defined in
Section 3.1 (c)).
1.6 "Affiliate" means a user that has completed the registration process
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for the EAN Program and has been approved by SmartAge per the EAN Program
Affiliate Guidelines to display Syndicated Content on its Web site. An Affiliate
shall be considered an Active Affiliate at any time that such Affiliate has
Syndicated Content on its Web site and is generating a minimum of *** (***)
Referrals in a given month.
1.7 "Affiliate Data" means registration information specific to a third
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party that shall be obtained electronically by SmartAge as part of the process
of such third party registering to become an Affiliate of the EAN Program.
Affiliate Data shall also include Affiliate Referral data (i.e., traffic
statistics, credits awarded).
1.8 "Available Inventory" means general rotation, channel, and key word
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ad banner advertisement placements available for purchase on the Excite Network.
1.9 "Banner Exchange Service" means that service provided to Clicks'
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Members using the Banner Exchange Technology.
1.10 "Banner Exchange Technology" means SmartAge's proprietary software,
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including the source and executable code, which shall be used by SmartAge to
serve Clicks' Members' ad banners in the SmartClicks' Network.
1.11 "Clicks' Member" means a third party that registered for the Banner
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Exchange Service via the Excite Site or the Excite Network and is approved by
SmartAge to have the right to display its ad banner throughout the SmartClicks'
Network.
1.12 "Clicks' Member Data" means registration information specific to a
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third party that shall be obtained electronically by SmartAge as part of the
process of such third party registering for the Banner Exchange Service.
1.13 "Clicks' Member Site" means each Clicks' Member's World Wide Web
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site on the Internet and all internally linked sub-pages.
1.14 "Co-Branded Page" means any Web page on the Excite Network or the
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SmartAge Site that displays the name, brand, logo, trademark, service ▇▇▇▇ or
other identifying ▇▇▇▇ of both Excite ("Excite Brand") and SmartAge ("SmartAge
Brand") in manner as mutually agreed and as specified within this Agreement.
1.15 "Content Affiliate Service" means the serving of Excite originated
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Syndicated Content by SmartAge in the form of HTML snippets.
1.16 "EAN Program" means the Excite Affiliate Network Program which
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program shall enable a user to become an Affiliate and display Syndicated
Content on its Web site.
***CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
Confidential and Proprietary Information 2
1.17 "EAN Program Affiliate Guidelines" means those guidelines established
--------------------------------
by Excite and used by SmartAge in approving a third party to become an
Affiliate. The EAN Program Affiliate Guidelines are attached hereto as Exhibit
C, as may be modified by Excite from time to time.
1.18 "EAN Services" means those services pursuant to Section 2.1 that
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SmartAge shall provide to Excite in establishing, maintaining, and administering
the EAN Program.
1.19 "Excite Banner Guidelines" means those guidelines established by Excite
------------------------
and used by SmartAge in approving an ad banners, submitted by Affiliates or by
Advertisers purchasing Available Inventory through the Buying Services, before
it is displayed on the SmartClicks' Network or the Excite Network. The Excite
Banner Guidelines are attached hereto as Exhibit D, as may be modified from time
to time.
1.20 "Excite Network" means the Excite Site including without limitation its
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international Web sites, and other such wholly owned or controlled media
properties as mutually agreed and as specified on Exhibit E attached hereto, as
may be modified from time to time.
1.21 "Excite Site" means Excite's World Wide Web site on the Internet
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located at ▇▇▇.▇▇▇▇▇▇.▇▇▇ and all internally linked sub-pages.
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1.22 "Impression" means the delivery of an ad banner to a browser.
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1.23 "Membership Growth Warrant" means the Stock Purchase Warrant that shall
-------------------------
be issued to Excite in the event that Excite achieves those performance
milestones in manner and as specified in Exhibit A, attached hereto. The
Membership Growth Warrant shall be in form set forth in Exhibit G.
1.24 "Offered Services" means those services, specifically excluding the
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Banner Exchange Service, which SmartAge shall be responsible for providing to
users of the Excite Network. Offered Services shall include both SmartAge owned
and provided services, and third party provided services in which SmartAge is an
authorized reseller as defined in Exhibit I.
1.25 "Redeemable Points" means the benefit that shall accrue to an Affiliate
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when a user of such Affiliate's Web site accesses the Excite Site via a
Syndicated Content based hyper-link. Such benefit shall accrue in the form of
points that may be redeemed by an Affiliate to display ad banners on the
SmartClicks' Network pursuant to Section 2.1 or for other redemption as
identified by Excite. Excite will give reasonable consideration to suggestions
by SmartAge to add redemption opportunities to the EAN Program. Furthermore, it
is also the intent of the parties to evaluate using such points for discounts on
SmartAge provided services, as determined by SmartAge and Excite, or Excite
provided services as determined by Excite.
1.26 "Redemption Rate" means the exchange rate at which Redeemable Points
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may be redeemed for Impressions pursuant to Section 2.6 (a) or other redemption
as determined by Excite.
1.27 "Referral" means a third party that accesses the Excite Site via
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Syndicated Content on an Affiliate's Web site.
1.28 "Sales Growth Warrant" means the Stock Purchase Warrant that shall be
--------------------
issued to Excite in the event that Excite achieves those performance milestones
in manner and as specified in Exhibit B. The Sales Growth Warrant shall be in
form set forth in Exhibit K.
1.29 "Service Member" means a third party that purchases an Offered Service,
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or any other service provided by SmartAge or a third party under contract to
SmartAge, via the Excite Network.
Confidential and Proprietary Information 3
1.30 "Service Member Data" means registration information specific to a
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third party that shall be obtained electronically by SmartAge as part of the
process of such third party purchasing an Offered Service.
1.31 "SmartAge Member" means a third party that registered for a service
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via a SmartAge promotion, the home page of the SmartAge Site, or the home page
of the SmartClicks' Site.
1.32 "SmartAge Site" means SmartAge's World Wide Web site on the Internet
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located at ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇ and all internally linked sub-pages.
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1.33 "SmartAge Sourced Affiliate" means a third party that becomes an
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Affiliate as a result of a SmartAge promotion or via the SmartAge Site.
1.34 "SmartAge Sourced Active Affiliate" means a SmartAge Sourced
---------------------------------
Affiliate that is simultaneously an Active Affiliate.
1.35 "SmartAge Sourced-Lead" means an Advertiser that purchased Available
---------------------
Inventory via the SmartAge Buying Service (as defined in Section 3.1 (b)) or has
met each of the following conditions: (i) it has been referred to Excite by
SmartAge; (ii) has not purchased Available Inventory from Excite within the
prior twelve (12) month period; and (iii) purchased Available Inventory.
1.36 "SmartClicks' Site" means SmartAge's World Wide Web site on the
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Internet located at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and all internally linked sub-pages.
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1.37 "SmartClicks' Member" means a third party that registered for the
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SmartClicks' banner exchange service via the SmartClicks' Site.
1.38 "SmartClicks' Network" means that networked collection of Web sites
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participating in a banner exchange service owned and operated by SmartAge and
using the Banner Exchange Technology.
1.39 "SmartClicks Terms and Conditions" means the terms, conditions,
--------------------------------
requirements, limitations and restrictions, as may be reasonably modified by
SmartAge from time to time, which are described on the page of the SmartClicks'
Site which has a title which is substantially similar to "SmartClicks Terms and
Conditions."
1.40 "Stock Purchase Warrants" means the Sales Growth Warrant and the
-----------------------
Membership Growth Warrant collectively, which shall be issued and exercisable
to purchase SmartAge Series B Preferred stock in number of shares as calculated
dependent on Excite achieving certain performance milestones pursuant to
Sections 3.12 and 4.5, respectively.
1.41 "Syndicated Content" means the text, data, hyper-links and other
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information provided by Excite to users and Affiliates in conjunction with the
EAN Program via dynamic content modules.
1.42 "Terms and Conditions" means the terms, conditions, requirements,
--------------------
limitations and restrictions, as may be reasonably modified by the parties from
time to time, which shall be described on that page of the SmartClicks' Site,
SmartAge Site, Excite Site, or Excite Network as applicable, which shall have
the title substantially similar to "Terms and Conditions" attached in Exhibit H.
2. EXCITE AFFILIATE NETWORK PROGRAM.
2.1 SmartAge EAN Obligations.
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a. EAN Registration Process. SmartAge agrees to build and administer
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an Internet-based registration process for the EAN Program which process shall
enable a user to register to become an Affiliate via the Excite
Confidential and Proprietary Information 4
Site. Such registration process shall be in manner, form and design, and request
specific Affiliate Data as determined by SmartAge and Excite, subject to the
reasonable approval of Excite.
b. Affiliate Approval. SmartAge agrees to be responsible for
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approving prospective Affiliates according to the EAN Program Affiliate
Guidelines and will use commercially reasonable efforts to ensure that such
guidelines are followed.
c. Syndicated Content and Tracking. SmartAge agrees to serve
-------------------------------
Syndicated Content to Affiliates. SmartAge further agrees to track Referrals and
the accumulation of Redeemable Points. Both parties agree that such serving and
tracking shall be in manner and form as determined by SmartAge and Excite,
subject to the reasonable approval of Excite.
d. Redemption and Fulfillment. SmartAge agrees to provide a
--------------------------
mechanism through which Affiliates can redeem Redeemable Points and submit ad
banners to SmartAge for display on the SmartClicks' Network. Such mechanism
shall be in manner and form as determined by SmartAge and Excite, subject to the
reasonable approval of Excite.
e. Ad Banner Approval. SmartAge shall be responsible for approving
------------------
ad banners submitted by Affiliates in redeeming Redeemable Points pursuant to
Section 2.1 (d) herein. Such approval shall be according to the Excite Banner
Guidelines and SmartAge agrees to use commercially reasonable efforts to ensure
that such guidelines are followed. In the event that Excite, in its sole
discretion, determines that an Affiliate's ad banner does not meet the Excite
Banner Guidelines or is unacceptable for any other reason, SmartAge will make
commercially reasonable efforts to remove such ad banner from the SmartClicks'
Network within forty-eight (48) hours of written notice by Excite. Excite may
modify the Excite Banner Guidelines at any time by providing written notice of
such modification to SmartAge and by the parties updating Exhibit D to reflect
such modification.
f. Hosting, Maintaining, and Serving. SmartAge agrees to host,
---------------------------------
maintain, administer and serve all registration pages, administrative pages,
statistical pages, and ad banners related to an Affiliate's use of the EAN
Program in a professional, reliable, and timely manner.
g. Affiliate Data Collection and Maintenance. SmartAge agrees to
-----------------------------------------
collect, maintain, and administer all Affiliate Data at a location and on
software and equipment as determined by SmartAge. SmartAge further agrees to
provide to Excite on a monthly basis all Affiliate Data including but not be
limited to: company name, URL, address, phone and fax number, Affiliate
Referrals, point balances and points redeemed, as well as the name, title, and
e-mail address of such company's primary contact. Such Affiliate Data shall be
provided in aggregate, as well as on an individual Affiliate basis. Such
Affiliate Data shall be provided in form, manner, and timeliness as mutually
agreed.
h. Customer Support. SmartAge agrees to respond to all customer
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service issues and provide all customer service support related to use of the
EAN Program in a professional and reliable manner, provided however, that all
such customer service shall be provided to Affiliates via e-mail unless
otherwise agreed by SmartAge.
i. Launch Date. SmartAge agrees that the first date upon which a
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user shall be able to register for the EAN Program and receive Syndicated
Content, pursuant to Sections 2.1 (a), (b) and (c) herein, shall be on or about
April 6, 1999, provided however, that Excite has fulfilled all its relevant
obligations pursuant to Section 2.2 (c), and provided all reasonably necessary
assistance to SmartAge in meeting such launch date.
2.2 Excite EAN Obligations.
----------------------
Confidential and Proprietary Information 5
a. ***. Excite agrees to be *** *** for and *** related to the
---
development, acquisition, licensing or other means of controlling the
Syndicated Content. Excite further agrees to make *** *** efforts to ensure the
accuracy, reliability, and timelines of the ***.
b. Administration. Excite agrees to host, maintain, and administer
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the Syndicated content in a professional, reliable, and timely manner.
c. Assistance & Information. Excite agrees to assist SmartAge and to
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provide text, data, and other relevant information that SmartAge reasonably
requests for the specific purposes of developing, maintaining, and administering
the EAN Program pursuant to Section 2.1. Such Excite assistance and information
shall be provided on a timely basis and be at no cost to SmartAge unless
otherwise mutually agreed in writing.
d. ***. Excite agrees to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ a ***, ***, and *** to
---
electronically ***, ***, ***, and *** the *** to *** for the specific purposes
of SmartAge fulfilling its duties and obligations under this Agreement.
Such *** of *** shall be for the term of this Agreement.
2.3 Marketing & Promotion of EAN.
----------------------------
a. Branding. Both parties agree that each Web page a user shall see
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when accessing the EAN Program shall be a Co-Branded Page and shall display the
Excite Brand and the SmartAge Brand with equal prominence. In the event that a
Co-Branded Page displays more than one Excite Brand, then the SmartAge Brand
shall be equal in prominence to the most prominent Excite Brand displayed on
such Web page. On each Co-Branded Page, the Excite Brand shall be "Excite
Network" and the SmartAge Brand shall be "Powered by SmartAge" or similar word
or phrase as mutually agreed. The Excite and SmartAge Brands shall be in size,
form, design and page location as determined by Excite, subject to the
reasonable approval of SmartAge.
b. SmartAge E-Mail Promotion. SmartAge agrees to promote the EAN
-------------------------
Program within its periodic e-mail distributions to its database of SmartAge
Members, provided however, that the aggregate number of such promotions shall be
no less than *** e-mails per calendar quarter and further provided that each
such promotion may contain content and other information not related to the EAN
Program. Both parties agree that each e-mail promotion shall contain promotional
information, a hyper-link that shall link to the URL for the EAN Description
Page (as defined in Section 2.4 (a)), and other EAN Program related information
as determined by Excite subject to the reasonable approval of SmartAge.
SmartAge, in its sole discretion, shall determine any text, data, hyper-links or
other information included in any such e-mail promotion not relating to the EAN
Program.
c. SmartAge Other Promotion. In addition to its e-mail promotion
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obligations pursuant to Section 2.3 (b) herein, SmartAge has the right to
promote the EAN Program to existing and prospective SmartAge Members via the
SmartAge Site, ad banners on the SmartClicks' Network and through other means as
it solely determines.
d. Excite Promotion. Excite agrees to actively promote the EAN
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Program using e-mail, the Excite Site and Excite Network, and through other
reasonable means as it solely determines, provided however, that in each such
promotion the SmartAge Brand shall be displayed. Excite further agrees that each
such promotion shall include a hyper-link or other reference which shall refer
prospective Affiliates to the URL for the EAN Description Page.
e. Banner Exchange Service. Both parties agree that users shall be
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provided the option of registering for the Banner Exchange Service as part of
the EAN Program registration process. Such registration option shall be in form
and manner as mutually agreed by the parties.
2.4 EAN Web Page Requirements.
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***CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
Confidential and Proprietary Information 6
a. EAN Description Page. Users shall access the EAN Program solely
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through an initial Web page that shall display content and other information
describing the EAN Program ("EAN Description Page"). The EAN Description Page
shall be in form and design, and contain text, data, hyper-links and other
information as determined by Excite, subject to the reasonable approval of
SmartAge. Each promotion pursuant to Sections 2.3 (b), (c), and (d) shall hyper-
link to or reference the URL for the EAN Description Page. The EAN Description
Page shall be served from a location as determined by Excite, subject to the
reasonable approval of SmartAge.
b. Registration and Other Pages. The EAN Description Page shall
----------------------------
include a prominent graphical hyper-link that shall display "JOIN NOW" or other
such similar statement that prompts users to register for the EAN Program. Such
prominent graphical hyperlink shall be linked to a registration page, which
shall be in form and design and request Affiliate Data as determined by
SmartAge, subject to the reasonable approval of Excite. All other Web pages that
a user shall access via the EAN Description Page, including but not limited to
administrative and statistical reporting pages, shall be served, and be in form
and design as determined by SmartAge, subject to the reasonable approval of
Excite.
c. ***. SmartAge agrees to *** the *** of those *** that it
---
*** pursuant to Section 2.4 (b) herein, such that a user's browser shall display
a *** with *** in the *** position. For example, "***" displays "***" in the ***
position and "***" in the *** position.
2.5 Exclusivity.
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a. SmartAge Exclusivity. During the term of this Agreement, SmartAge
--------------------
shall be the exclusive provider of the EAN Services to Excite, its Affiliates,
and users of such Affiliates' Web sites.
b. EAN Exclusivity. SmartAge agrees not to provide a substantially
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similar Content Affiliate Service to any of the Excite competitors specifically
identified in Exhibit F for a period of one hundred five (105) days commencing
on April 6, 1999 pursuant to Section 2.1 (i), provided however, that such
exclusivity shall not apply to any such competitor which has executed a
definitive agreement with SmartAge prior to the Effective Date. Excite shall
have the right to modify such competitor list on one (1) occasion during such
one hundred five (105) day period by providing SmartAge with written notice of
such modification and by the parties updating Exhibit F to reflect such
modification.
2.6 Redemption of Points.
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a. Redemption Rates. Pursuant to Section 2.1 (d), the Redemption Rate
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shall be *** (***) *** per Referral unless otherwise mutually agreed in
writing. It is the intent of Excite to redeem Redeemable Points using ad banner
Impressions generated from the Banner Exchange Service pursuant to Section 4.4
(c). Furthermore, it is the intent of the parties to evaluate using such
Redeemable Points in exchange for discounts on SmartAge provided services as
determined by SmartAge and Excite, or Excite provided services as determined by
Excite.
b. Redemption Shortfall. Both parties agree that in the event the
--------------------
number of Redeemable Points exceeds the number of Impressions generated through
the Banner Exchange Service, then Excite shall have the right to use Impressions
generated from other sources to fulfill any such shortfall. Excite shall also
have the right but not the obligation to purchase additional Impressions from
SmartAge pursuant to Section 4.4 (d), for purposes of fulfilling any such
redemption requirements.
c. Price of SmartAge Impressions. Excite agrees that any Impressions
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purchased from SmartAge to redeem Redeemable Points pursuant to Sections 2.6(a)
and (b) herein, shall be purchased at a minimum price of *** dollars ($***)
per one thousand (1,000) impressions unless otherwise agreed in writing.
***CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
Confidential and Proprietary Information 7
d. Reporting. SmartAge agrees to provide Excite with a monthly report
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specifying the number of Impressions served to redeem Redeemable Points, the
number of Affiliates redeeming Redeemable Points, the balance of Redeemable
Points yet to redeemed, and any other information as mutually agreed. Such
monthly report shall be accessed by Excite using a unique password via an
Internet address or in any other manner as both parties mutually agree.
e. Payment. Excite agrees to pay all fees due SmartAge from the
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redemption of Redeemable Points, pursuant to Sections 2.6 (b), (c) and 4.4 (d),
within thirty (30) business days of the end of the month in which SmartAge
provided Impressions were served and fees generated.
2.7 Incentive Payment.
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a. Advertising Revenue Share. Excite agrees to provide SmartAge with
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an incentive ("Incentive Payment") to promote the EAN Program pursuant to
Sections 2.3 (b) and (c). Such Incentive Payment shall enable SmartAge to
participate in the advertising revenues generated from Excite served Web pages.
Specifically, Excite shall share collected ad banner advertising revenues, after
commissions which shall not exceed ***%, that it generates from Web pages which
are accessed by users via a *** based hyper-link on an Affiliate's Web site
("EAN Advertising Revenues"), provided however that such Affiliate is a SmartAge
Sourced Active Affiliate. Each Incentive Payment shall be calculated based upon
the largest number of SmartAge *** in the given month, and the corresponding
percentage of EAN Advertising Revenues per the following incentive schedule
("Incentive Schedule"):
SmartAge *** Percentage of EAN Advertising Revenues
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up to *** ***%
*** to *** ***%
*** to *** ***%
*** to *** ***%
greater than *** ***%
b. Calculation of Incentive Payment. The following steps shall be used by
--------------------------------
Excite when calculating the Incentive Payment due SmartAge pursuant to Section
2.7 (a) herein, on a monthly basis:
(1) Determine the *** of SmartAge *** on the *** day of the ***
calendar month.
(2) Determine the *** of EAN Advertising Revenues per the ***
corresponding to the *** month's number of SmartAge ***.
(3) Determine the total EAN Advertising Revenues generated during the
*** month.
(4) *** the *** EAN Advertising Revenues by the *** of EAN
Advertising Revenues derived using the ***. The *** is the Incentive Payment due
SmartAge for *** month.
For example, if there are *** SmartAge *** in the *** month, then the
percentage of EAN Advertising Revenues per the Incentive Schedule payable to
SmartAge is ***%. Therefore, if Excite generates $*** in EAN Advertising
Revenues, then the Incentive Payment that Excite shall pay SmartAge for the
given month is ***% of this amount, or $***.
c. Reporting. SmartAge agrees to provide Excite on a monthly basis the
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number of SmartAge Sourced Active Affiliates at the end of the given month.
Excite agrees to provide SmartAge with a monthly summary report specifying the
following:
***CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
Confidential and Proprietary Information 8
(1) The total EAN Advertising Revenues generated in the given month.
(2) The percentage share of total EAN Advertising Revenues that
Excite shall pay to SmartAge per the Incentive Schedule.
(3) The Incentive Payment amount for the given month.
(4) Any other information as mutually agreed.
Such monthly summary report shall be submitted to SmartAge within thirty
(30) business days of the end of the month in which such information pertains,
provided that SmartAge is able to report the number of SmartAge Sourced Active
Affiliates at the end of the given month within ten (10) days of the end of the
month.
d. Payment. Excite agrees to pay any such Incentive Payment due
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SmartAge, pursuant to Sections 2.7 (a), (b) and (c) herein, within thirty (30)
business days of the end of the month in which such revenues were generated,
provided however, that such payment shall be net of incorrect, unauthorized or
fraudulent purchases, and provided that SmartAge is able to report the number of
SmartAge Sourced Active Affiliates at the end of the given month within ten (10)
days of the end of the month. In the event that SmartAge provides the SmartAge
Sourced Active Affiliates data later than ten (10) days after the end of the
month, Excite's Incentive Payment for that month may be delayed a corresponding
amount of time.
2.8 Discontinuance of EAN by Excite.
-------------------------------
Excite may discontinue the EAN Program at any time upon thirty (30) days
notice to SmartAge, but in any event, the provisions of Section 2.5 (a) shall
still apply.
3. AD BUYING SERVICES.
3.1 Buying Services Obligations.
---------------------------
a. Excite Buying Service. SmartAge agrees to build and administer an
---------------------
Internet-based advertisement buying service which SmartAge shall provide to
Excite, such that Advertisers shall be able to purchase general rotation,
channel, and keyword ad banner advertising placements on the Excite Network via
the Excite Site ("Excite Buying Service"). Notwithstanding Section 4.2 (e), the
definition of the Excite Buying Service shall not include any other method of
distributing ad banners, and Excite may participate in all other forms of ad
banner distribution not mentioned in this Section 3.1, including, without
limitation, auctions, promotions, giveaways, contests or charities, provided
however, that SmartAge shall have the right to provide such ad banner
distribution methods on behalf of Excite, if SmartAge can meet minimum service
requirements for each such method as determined in Excite's reasonable
discretion, and to the extent that no pre-existing obligations exist on the part
of Excite to allow other entities to provide such services. The Excite Buying
Service shall be automated pursuant to Section 3.1 (c) herein, and shall enable
an Advertiser to perform at minimum the following tasks ("Minimum User
Functionality"):
. Select and submit an order for an ad banner advertisement
. Pay for an order using a credit card
. Submit ad banner creative
. Access impression and click-through reports.
b. SmartAge Buying Service. SmartAge agrees to build and administer an
-----------------------
Internet-based advertisement buying service, which shall enable Advertisers to
purchase SmartAge, Excite Network, and third party provided general rotation,
channel, and keyword ad banner advertising placements via the SmartAge Site
("SmartAge Buying Service"). Such service shall be automated pursuant to Section
3.1 (c) herein, and shall enable an Advertiser to perform the Minimum User
Functionality.
Confidential and Proprietary Information 9
c. Automated Service. SmartAge agrees that the Excite Buying Service and
-----------------
the SmartAge Buying Service (together, the "Buying Services") shall be automated
in manner such that an Advertiser shall be able to perform the Minimum User
Functionality pursuant to Section 3.1 (a) herein, without manual intervention
from SmartAge, provided however that such Advertiser is using the Buying
Services in a manner consistent with normal operations.
d. Ad Banner Approval. SmartAge shall be responsible for approving ad
------------------
banners submitted by Advertisers prior to each such ad banner being served on
the Excite Network. Such approval shall be according to the Excite Banner
Guidelines and SmartAge agrees to use commercially reasonable efforts to ensure
that such guidelines are followed. In the event that Excite, in its sole
discretion, determines that any such ad banner displayed on the Excite Network
does not meet the Excite Banner Guidelines or is unacceptable for any other
reason, SmartAge will make commercially reasonable efforts to remove such ad
banner from the Excite Network within forty-eight (48) hours of written notice
by Excite. Excite may modify the Excite Banner Guidelines at any time by
providing at least five (5) days prior written notice of such modification to
SmartAge and by the parties updating Exhibit D to reflect such modification.
e. Buying Service Hosting, Maintaining, and Serving. SmartAge agrees to
------------------------------------------------
host, maintain, administer and serve all registration pages, administrative
pages, statistical pages, and ad banners related to the Buying Services in a
professional, reliable, and timely manner.
f. Advertiser Data Collection and Maintenance. SmartAge agrees to
------------------------------------------
collect, maintain, and administer all Advertiser Data at a location and on
software and equipment as determined by SmartAge. SmartAge further agrees to
provide to Excite on a monthly basis all Advertiser Data related to the Excite
inventory sold through the Buying Services including but not be limited to:
company name, URL, address, phone and fax number, as well as the name, title,
and e-mail address of such company's primary contact. Such Advertiser Data shall
be provided in form and manner as mutually agreed, and no later than ten (10)
days after the end of each month.
g. Customer Support. SmartAge agrees to respond to all customer service
----------------
issues and provide all customer service support related to use of the Buying
Services in a professional and reliable manner, provided however, that all such
customer service shall be provided to Advertisers via e-mail unless otherwise
agreed by SmartAge unless Advertiser specifically requests manual intervention.
h. Promotion of SmartAge Buying Service. SmartAge agrees to provide
------------------------------------
*** placement within those sections of the SmartAge Site relevant to
prospective users of the SmartAge Buying Service (for example, the "Promote"
section) as determined by SmartAge. Such placement shall be for purposes of
promoting the SmartAge Buying Service and shall contain a promotional link and
informational content and be in size, form, design, and page location as
determined by SmartAge. SmartAge agrees to promote the SmartAge Buying Service
with e-mail distribution to SmartAge's entire database of existing and
prospective customers. Each such e-mail shall be in form and manner, and include
content as provided by SmartAge.
3.2 Excite Buying Service Obligations.
---------------------------------
a. Available Inventory. Excite agrees to offer some, though not
-------------------
necessarily all, Available Inventory to Advertisers for purchase via the Buying
Services upon the launch dates pursuant to Section 3.3 (a) and (b), and subject
to the terms and conditions of this Agreement.
b. Exclusive Right. SmartAge shall be the exclusive provider of the
---------------
Excite Buying Service with such exclusive right commencing no later than on or
about ***, 1999, provided however, that such service, in Excite's reasonable
discretion, is *** to any other substantially similar service available on the
Internet in terms of the following criteria, taken as a whole: (i) depth of
coverage; (ii) timeliness; and (iii) reputation and ranking based upon a cross-
section of a minimum of three third party reviewers in terms of features,
functionality, quality and other qualitative factors that are mutually deemed
material in nature.
***CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
Confidential and Proprietary Information 10
c. Referrals for Excite. Upon SmartAge being granted the exclusive right
--------------------
pursuant to Section 3.2 (b) herein, Excite agrees to refer all individual ad
banner placement leads of an amount less than or equal to a predefined amount
(the "Referral Threshold"), to the Excite Buying Service. The Referral Threshold
shall be *** dollars ($***) per month through December 31, 1999. Excite shall
have the right to change the Referral Threshold on one (1) occasion every six
(6) months thereafter for the term of this Agreement, provided however, that
Excite shall provide SmartAge with at least fifteen (15) days written notice
prior to any such change in the Referral Threshold.
d. Keyword Inventory Availability. Excite shall provide Available
------------------------------
Inventory information relating to keyword inventory ("Available Keyword
Inventory") to SmartAge on a daily basis. Excite shall also make commercially
reasonable efforts to verify such Available Keyword Inventory related to
specific orders within one (1) business day of receipt of such orders by Excite.
Such Available Keyword Inventory information shall be as determined by Excite
and in manner, form, and timeliness as mutually agreed.
e. Genro and Channel Inventory Availability. Excite shall provide
----------------------------------------
Available Inventory information relating to general rotation and channel
inventory ("Available Genro And Channel Inventory") to SmartAge on a monthly
basis. Such Available Genro And Channel Inventory information shall be as
determined by Excite and in manner, form, and timeliness as mutually agreed. If
SmartAge does not sell all of the reserved Available Inventory SmartAge will
serve Excite house ads for the unsold portion of that Available Inventory.
f. Support, Assistance & Information. Excite agrees to provide
---------------------------------
assistance to SmartAge and text, data, and other relevant information that
SmartAge reasonably requests for the specific purposes of developing,
maintaining, and administering the Buying Services pursuant to Sections 3.1 and
3.3. Such Excite assistance and information shall be provided on a timely basis
and be at no cost to SmartAge unless otherwise mutually agreed in writing.
Excite will link to the Excite Buying Service through the following sources:
1) Ad Info pages found at:
i) ▇▇▇▇://▇▇▇.▇▇▇▇▇▇.▇▇▇/▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇/
---------------------------------------
ii) ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇
------------------------------------------
iii) ▇▇▇▇://▇▇▇.▇▇▇▇▇▇.▇▇▇/▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇/?▇▇▇▇▇▇▇▇▇
-------------------------------------------------
2) The "Advertise On (name of brand)" links to these pages are
located on every one of the Excite Network's pages, subject
to sole discretion of Excite.
3) Automated email reply to all prospects that fill out the
contract information form found at each URL listed above.
4) The Excite Network Online Media Kit at:
i) ▇▇▇▇://▇▇▇.▇▇▇▇▇▇.▇▇▇/▇▇▇▇/▇▇▇▇▇ kit/tech specs/price
-----------------------------------------------------
list/
----
3.3 Buying Service Launch Dates.
---------------------------
a. Excite Buying Service. SmartAge agrees that the first date upon which
---------------------
Advertisers shall be able to purchase Available Inventory via the Excite Buying
Service shall be no later than on or about August 7, 1999, provided however,
that Excite has fulfilled all its relevant obligations and provided all
reasonably necessary assistance to SmartAge in meeting such launch date pursuant
to Section 3.2 (e). In the event that SmartAge has not Launched the SmartAge
Buying Service on April 21, 1999, this August 7, 1999 date shall be delayed for
a number of days equal to the number of days after April 21, 1999 that the
SmartAge Buying Service Launch takes place.
b. SmartAge Buying Service. SmartAge agrees that the first date upon
-----------------------
which Advertisers shall be able to purchase ad banner inventory via the SmartAge
Buying Service shall be no later than on or about April 21,
***CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
Confidential and Proprietary Information 11
1999. SmartAge further agrees that the first date upon which Advertisers shall
be able to purchase Available Inventory via the SmartAge Buying Service shall be
no later than on or about April 21, 1999, provided however, that Excite has
fulfilled all its relevant obligations and provided all reasonably necessary
assistance to SmartAge in meeting such launch date pursuant to Section 3.2 (e).
3.4 Marketing & Promotion.
---------------------
a. Branding of Excite Buying Service. Both parties agree that each Web
---------------------------------
page an Advertiser shall see when accessing the Excite Buying Service shall be a
Co-Branded Page and shall display the Excite Brand with more prominence than the
SmartAge Brand, provided however, that the SmartAge Brand shall be displayed in
a prominent manner. On each Co-Branded Page, the Excite Brand shall be "Excite
Network" and the SmartAge Brand shall be "Powered by SmartAge" or similar word
or phrase as mutually agreed. The Excite and SmartAge Brands shall be in size,
form, design and page location as determined by Excite, subject to the
reasonable approval of SmartAge.
b. SmartAge Promotion. SmartAge will promote the SmartAge Buying Service
------------------
to existing and prospective SmartAge Members at least *** per quarter via the
SmartAge Site, ad banners on the SmartClicks' Network, and through other means
as it determines, provided however, that in no instance shall SmartAge represent
itself as an agent or representative of Excite or the Excite Network.
c. Excite Promotion. Excite will promote the Excite Buying Service
----------------
through reasonable means as it determines, provided however, that in each such
promotion the SmartAge Brand shall be displayed at a minimum in the form of text
such as "Powered by SmartAge" or similar word or phrase as mutually agreed.
Excite further agrees that each such promotion shall include a hyper-link or
other reference which shall refer prospective Advertisers to the Buying Service
Description Page (as defined in Section 3.5 (a)).
3.5 Buying Service Web Page Requirements.
------------------------------------
a. Description Page. Advertisers shall access the Excite Buying Service
----------------
exclusively through an initial Web page that shall display content and other
information describing the Excite Buying Service ("Buying Service Description
Page"). The Buying Service Description Page shall be in form and design, and
contain text, data, hyper-links and other information as determined by SmartAge,
subject to the reasonable approval of Excite. Each promotion pursuant to
Sections 3.4 (a) and (b) shall be hyper-linked to or reference the URL of the
Buying Service Description Page. The Buying Service Description Page shall be
served by SmartAge.
b. Order Pages. The Buying Service Description Page shall include a
-----------
prominent graphical hyper-link that shall display "BUY NOW" or other such
similar statement that prompts an Advertiser to place an order via the Excite
Buying Service. Such prominent graphical hyperlink shall be linked to Web pages
that describe the terms and conditions of each order and which shall enable an
Advertiser to place an order ("Order Pages"). Such Order Pages shall be in form
and design, and request Advertiser Data as determined by SmartAge, subject to
the reasonable approval of Excite. All Order Pages and other Web pages that an
Advertiser shall access via the Buying Service Description Page, including but
not limited to administrative and statistical reporting pages, shall be served
by SmartAge, and be in form and design as determined by SmartAge, subject to the
reasonable approval of Excite.
c. ***. SmartAge agrees to *** the *** of those *** that it ***
---
pursuant to Section 3.5 (b) herein, such that an Advertiser's *** shall display
a *** with *** in the *** position. For example, "***" displays "***" in the ***
position and "***" in the *** position.
d. SmartAge Buying Service. SmartAge shall have the right to establish,
-----------------------
maintain, and administer the SmartAge Buying Service in a manner as determined
by SmartAge, provided however, that it shall be required
***CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
Confidential and Proprietary Information 12
to meet the Minimum User Functionality requirements pursuant to Section 3.1 (b)
and those other terms and conditions of the SmartAge Buying Service as specified
within this Agreement.
e. Order Processing. SmartAge agrees to forward Available Inventory
----------------
orders placed through the Buying Services to Excite electronically, in form and
manner, and on a *** basis as mutually agreed. SmartAge further agrees to be
responsible for processing *** payments ("Payment Processing") via a secure Web
page and in a reasonably secure, accurate, reliable, and timely manner.
3.6 Other Limitations & Requirements.
--------------------------------
a. Key Word *** Position. SmartAge agrees that the Excite Network shall
---------------------
represent the *** key word offer in the SmartAge Buying Service for a period of
twelve (12) months commencing upon the launch date pursuant to Section 3.3 (b).
After expiration of such twelve (12) month period, Excite shall have the right
of *** to purchase such *** position for the term of the Agreement, upon terms
and conditions as mutually agreed. In the event that Excite does not ▇▇▇▇▇
▇▇▇▇▇▇▇▇ the *** right to provide the Excite Buying Service, for any reason,
pursuant to Section 3.2 (b), then such *** position rights shall immediately
terminate.
b. Key Word *** Position. SmartAge agrees to provide Excite with the
---------------------
*** (***) most *** positions ("***") within the SmartAge Buying Service for the
specific purposes of offering Advertisers key word ad banner placements on the
Excite Network. Such *** shall be for a period of *** (***) months commencing
upon the launch date pursuant to Section 3.3 (b). After expiration of such ***
(***) month period, Excite shall continue to have the *** position and SmartAge
shall grant Excite the right of *** to purchase such *** position for such
specific purposes for the term of the Agreement, upon terms and conditions as
mutually agreed.
c. Banner ***. SmartAge agrees to provide Excite with the *** position
----------
within the SmartAge Buying Service for the specific purposes of offering
Advertisers *** and *** banner inventory placements on the Excite Network for a
period of *** (***) months commencing on the launch date, pursuant to Section
3.3 (b). SmartAge further agrees to provide Excite the *** position for such
specific purposes for the term of the Agreement, provided however, that such
position shall be *** only to *** ad banner inventory. Excite shall have the
right of *** to purchase the *** position for such specific purposes for the
term of the Agreement, upon terms and conditions as mutually agreed. In the
event that Excite does not ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ the *** right to provide the Excite
Buying Service, for any reason, pursuant to Section 3.2 (b), then such ***
position rights shall immediately terminate.
d. Banner ***. SmartAge agrees to provide Excite with the *** and ***
----------
positions within those sections of the SmartAge Buying Service that offer
Advertisers *** and *** banner placements. Such *** positions shall be for a
period of *** (***) months from the launch date pursuant to Section 3.3 (b).
SmartAge further agrees to provide Excite the *** position for such specific
purposes for the term of the Agreement, provided however, that such position
shall be *** only to *** ad banner inventory. Excite shall have the right of ***
to purchase such *** position for such specific purposes the term of the
Agreement, upon terms and conditions as mutually agreed.
e. Private-Label Buying Service. Excite understands and acknowledges
----------------------------
that SmartAge has the right to provide Private-Label Buying Services with ***
restrictions ***. For purposes of this Section 3.6 (e), Private-Label Buying
Service means any banner advertisement and/or key word buying service provided
by SmartAge to a third party.
3.7 Buying Service Channel Resolution.
---------------------------------
***CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
Confidential and Proprietary Information 13
a. Advertiser Referral. SmartAge agrees to refer Advertisers to Excite
-------------------
that expressly communicate interest in purchasing Available Inventory or other
Excite advertising products not offered through the SmartAge Buying Service.
SmartAge shall refer such Advertisers to Excite by making available Excite
contact information as may be modified from time to time. Prior to referring
Advertisers, SmartAge shall request information from each Advertiser for
specific purposes of documenting such referral as a prospective lead. SmartAge
and Excite shall determine information to be obtained from such prospective
leads. All purchases from SmartAge Sourced-Leads, including those that purchase
through the SmartAge Buying Service, shall count towards offsetting the Sales
Minimums as defined in and pursuant to Section 3.10 (a).
b. SmartAge Sourced-Leads Reporting. SmartAge agrees to provide Excite
--------------------------------
with a monthly activity report of prospective SmartAge Sourced-Leads that have
been referred to Excite during the prior month pursuant to Section 3.7 (a)
herein. Such monthly report shall specify the name of each Advertiser, contact
information, date of referral, and other information as mutually agreed. Such
monthly report shall be accessed by Excite using a unique password via an
Internet address or in any other manner as mutually agreed by the parties.
c. Excite Reporting. Excite agrees to provide SmartAge with a monthly
----------------
activity report of SmartAge Sourced-Leads that have purchased directly from
Excite during the prior month. Said activity report shall specifying at minimum
the following:
(1) The total number of SmartAge Sourced-Leads which purchased
Available Inventory from Excite during the prior month.
(2) The name of each SmartAge Sourced-Lead that purchased Available
Inventory from Excite during the prior month.
(3) The date of each such purchase during the prior month.
(4) The total dollar amount of all such purchases during the prior
month.
(5) Any other information as mutually agreed.
Each such monthly report shall be provided to SmartAge no later than
thirty (30) business days after the end of the month for which such information
pertains. Both parties agree that each such monthly report shall be accessed by
SmartAge in a manner as both parties mutually agree.
3.8 Buying Service Pricing & Revenue Share.
--------------------------------------
a. Pricing. Excite shall, in its sole discretion, set pricing on all
--------
Available Inventory and set the maximum dollar order size per order. Excite
shall also have the right to modify such pricing or order size at any time,
provided however, that Excite agrees to provide SmartAge with at least five (5)
business days written notice prior to any such change taking effect.
b. Purchase Incentives. Notwithstanding Section 3.8 (a) herein, Excite
-------------------
acknowledges and understands that SmartAge may from time to time provide certain
incentives ("Purchase Incentives"), owned by SmartAge, to SmartAge Members to
prompt purchase of Available Inventory. Purchase Incentives shall include but
are not limited to SmartAge ad banner Impressions and SmartAge free services.
c. Revenue Share. Excite agrees to pay SmartAge *** percent (***) of all
-------------
revenues generated from the sale of Available Inventory via the Buying Services,
provided however, that such payment shall be net of non-collectable, incorrect,
unauthorized, or fraudulent sales of Available Inventory.
3.9 Buying Service Payment & Administration.
---------------------------------------
***CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
Confidential and Proprietary Information 14
a. Payment Transfer. SmartAge shall be responsible for all Payment
----------------
Processing through the Buying Services pursuant to Section 3.5 (e). SmartAge
agrees that funds deposited into one (1) or more SmartAge bank accounts as a
direct result of Payment Processing shall be transferred to Excite on a monthly
basis via wire transfer, check, or through other means as mutually agreed,
provided however, that each such transfer of funds shall be net of the
following:
(1) The revenue share fee due SmartAge pursuant to Section 3.8 (c).
(2) Non-collectable, incorrect, unauthorized, or fraudulent sales
which result in SmartAge reimbursing funds to a third party.
(3) Credit card processing related charges directly attributable to
Payment Processing and incurred by SmartAge, up to maximum of ***% per transfer
of funds.
b. Billing and Reporting. SmartAge shall be responsible for the
---------------------
management and administration of all invoicing, reimbursements, and online
reporting related to the Buying Services in a professional, reliable, and timely
manner.
c. Bad Debt Management. SmartAge shall be responsible for the collection
-------------------
of all delinquent or otherwise uncollected revenues related to orders that were
fulfilled by Excite in a manner consistent with the terms and conditions of the
Buying Services.
3.10 Buying Service Reporting.
------------------------
a. Payment Transfer Reporting. SmartAge agrees to provide Excite with a
--------------------------
monthly summary report pursuant to Section 3.8 (a), specifying the following:
(1) The total number of Available Inventory orders placed and
processed via the Buying Services in the given month.
(2) The total dollar value resulting from Payment Processing in the
given month.
(3) The total dollar value of incorrect, unauthorized, or fraudulent
orders and the total dollar value reimbursed to third parties in the given
month.
(4) The total credit card processing related charges for the given
month.
(5) The total dollar value of the SmartAge revenue share fee pursuant
to Section 3.8 (c).
(6) The total dollar value of the funds transferred to Excite for the
given month.
(7) Any other information as mutually agreed.
Such monthly summary report shall be submitted to Excite within five (5)
business days of the end of the month in which such information pertains.
Included with this submission shall be a letter from an officer of SmartAge
verifying, to the best of their knowledge, the authenticity of such monthly
report.
b. Order Fulfillment Reporting. SmartAge agrees to provide Excite with a
---------------------------
monthly summary report specifying the following:
(1) The total number of orders fulfilled via the Buying Services in
the given month. Such information shall be shown in aggregate, by Advertiser and
by Buying Service.
***CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
Confidential and Proprietary Information 15
(2) The total dollar value of orders fulfilled via the Buying
Services in the given month. Such information shall be shown in aggregate, by
Advertiser and by Buying Service.
(3) Any other information as mutually agreed.
c. Periodic Adjustments. Periodically during the term of this Agreement
--------------------
but no less than once per 90 day period, the parties shall reconcile their
records pursuant to Sections 3.8 (a) and (b) herein. In the event that any
material discrepancy should arise from such reconciliation, the party owing the
other a reimbursement shall pay such reimbursement within five (5) business days
of verification and acknowledgement of the payment due.
3.11 Buying Service Sales Minimums.
-----------------------------
a. Sales Minimums. SmartAge shall guarantee to Excite the following
--------------
monthly minimums in revenues generated and received from SmartAge Sourced-Leads
("Sales Minimums") according to the following table:
Month Minimum
----- -------
June 1999 $***
July 1999 $***
August 1999 $***
September 1999 $***
October 1999 $***
November 1999 $***
December 1999 $***
January 2000 $***
February 2000 $***
March 2000 $***
April 2000 $***
For each such month that SmartAge generates less than the corresponding
monthly Sales Minimum, SmartAge agrees to make up such shortfall by purchasing
Available Inventory on the Excite Network for purposes of marketing SmartAge.
Such shortfall purchase shall be as determined by SmartAge, subject to the
reasonable approval of Excite, provided however, that SmartAge shall be able to
make such purchase at an average of *** percent (***%) off the then-current
stated gross rates for such Available Inventory. In the event that SmartAge
generates less than the corresponding monthly Sales Minimums in any three (3)
one-month periods commencing August 31, 1999, whether consecutive or not, then
Excite shall have the right to discontinue its obligations pursuant to Section
3.2 (a) to offer Available Inventory via the Buying Services.
3.12 Sales Growth Warrant. SmartAge agrees to issue a Sales Growth Warrant
--------------------
to Excite, in form set forth in Exhibit G, dependent on the total revenues
generated from the sale of Available Inventory via the Excite Buying Service
meeting those performance milestones in manner and as specified pursuant to
Exhibit B, upon the date on which the first such performance milestones are met
by Excite.
4. BANNER EXCHANGE SERVICE.
4.1 SmartAge Banner Exchange Obligations.
------------------------------------
a. Service Level. SmartAge agrees to provide the Banner Exchange Service
------------
to Clicks' Members in a professional and reliable manner consistent with that
manner provided to SmartClicks' Members.
***CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
Confidential and Proprietary Information 16
b. SmartClicks' Network. SmartAge agrees to enable Clicks' Members using
--------------------
the Banner Exchange Service to display their ad banners within the larger
SmartClicks' Network pursuant to: 1) the terms, conditions, requirements,
limitations and restrictions of the SmartClicks' Terms and Conditions; and 2)
the prior approval of SmartAge.
c. Hosting, Maintaining, and Serving. SmartAge agrees to host, maintain,
---------------------------------
administer and serve all ad banners, registration pages, statistical
information, and description pages related to a Clicks' Member's use of the
Banner Exchange Service in a professional, reliable, and timely manner.
d. Member Data Collection and Maintenance. SmartAge agrees to collect,
--------------------------------------
maintain, and administer all Clicks' Member Data at a location and on software
and equipment as determined by SmartAge. SmartAge further agrees to identify and
track all Clicks' Members separately from other SmartClicks' Members in form and
manner as determined by SmartAge subject to the reasonable approval of Excite.
All such Clicks' Member Data shall be jointly owned and shall be made available
to Excite in a manner and on a periodic basis as mutually agreed.
e. Customer Support. SmartAge agrees to respond to all customer service
----------------
issues and provide all customer service support related to use of the Banner
Exchange Service in a professional and reliable manner consistent with the
manner provided to other SmartClicks' Members.
4.2 Banner Exchange Marketing & Promotion.
-------------------------------------
a. Naming. Excite agrees to use the name "SmartClicks" ("SmartClicks'
------
Brand") when marketing and promoting the Banner Exchange Service via the Excite
Network or in other reasonable manner to prospective and existing Clicks'
Members. The SmartClicks' Brand shall be in size, form, and design as determined
by SmartAge, subject to the reasonable approval of Excite.
b. Clicks' Promotion. Excite will actively promote the Banner Exchange
-----------------
Excite users, where appropriate throughout the Excite Network with consistent
Such promotion will include persistent and temporal links, ad banners, e-mail,
and other promotional mechanisms as determined by Excite, provided however, that
in each such promotion the SmartClicks' Brand shall be displayed. Excite further
agrees that each such promotion shall include a hyper-link ("Clicks' Promotional
Link") or other reference which shall refer prospective Clicks' Members to the
Clicks' Description Page (as defined in Section 4.3 (a)).
c. Branding of Banner Ads. Ad banners displayed on behalf of Clicks'
----------------------
Members on the SmartClicks Network shall be co-branded such that each ad banner
shall include an Excite Brand on the lower right hand corner of the such ad
banner in form and manner as mutually agreed.
d. Launch of Service. Both parties agree that the first date upon which
-----------------
a prospective Clicks' Member can register for the Banner Exchange Service shall
be no later than fifteen (15) business days after the Effective Date for the
Excite Site, thirty (30) days after such date for the WebCrawler Site, and
forty-five (45) days after such date for the Classified2000 Site and other such
Excite Network Web sites as mutually agreed.
e. Banner Exchange Exclusivity. Excite agrees not to offer third party
---------------------------
provided banner exchange services, specifically excluding any promotional,
advertising or other such marketing agreements that Excite has entered into as
of the Effective Date, provided however, that the Banner Exchange Service is, in
Excite's sole discretion, *** to any other similar banner exchange
service available from a third party on the Internet in terms of the following
factors, taken as a whole: (i) depth of coverage, (ii) timeliness and (iii)
reputation and ranking based on a cross-section of a minimum of three (3) third
party reviewers in terms of features, functionality, quality and other
qualitative factors that are mutually deemed material in nature.
4.3 Banner Exchange Web Page Requirements.
-------------------------------------
***CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
Confidential and Proprietary Information 17
a. Description Page. Each Clicks' Promotional Link on the Excite Network
----------------
shall be linked to one (1) or more description pages (each a "Clicks'
Description Page") which shall include general information provided by SmartAge
explaining the benefits of the Banner Exchange Service. Each Clicks' Description
Page shall be in form and design, and served from a location as determined by
SmartAge, subject to the reasonable approval of Excite.
b. Registration Page(s). SmartAge agrees that each such Clicks'
--------------------
Description Page shall include a prominent graphical hyperlink which shall
display "JOIN NOW" or other such similar statement which prompts prospective
Clicks' Members to register for the Banner Exchange Service. Such prominent
graphical hyperlink shall be linked to one or more registration pages (each a
"Clicks' Registration Page"). Clicks' Registration Pages shall be in form and
design, and shall include a minimum number of fields and request specific
Clicks' Member Data as determined by SmartAge, subject to the reasonable
approval of Excite. Clicks' Registration Pages shall be served from a location
as solely determined by SmartAge.
c. Integration with Excite Services. Both parties agree to evaluate
--------------------------------
integrating registration for the Banner Exchange Service into the registration
process for other services that Excite offers or plans to offer its users, such
as the EAN Program, a homepage hosting service, free e-mail service, or other
such Excite services as mutually agreed.
4.4 Allocated Impressions.
---------------------
a. Traffic Sharing. SmartAge agrees to allocate to Excite *** percent
---------------
(***%) of the total Impressions ("Allocated Impressions") generated from all
Clicks' Member Sites. "Clicks' Impressions" shall be defined as the total
Impressions generated from all Clicks' Member Sites.
b. Use of Allocated Impressions. Excite shall be able to use its
----------------------------
Allocated Impressions, as calculated in Section 4.4 (a) herein, in the following
ways: 1) to promote Excite and/or the Excite Network; 2) to promote or to sell
to a third party, provided however, that such third party is not a direct
competitor of SmartAge as specified -in Exhibit J; 3) to provide to Affiliates
as an incentive for the EAN Program pursuant to Section 2.6 (a), and 4) to use
in any other manner as determined by Excite subject to the reasonable approval
of SmartAge provided however the following:
(1) Allocated Impressions shall be used in a continuous and automatic
manner as mutually agreed such that any ad banners provided by Excite to
SmartAge for purposes of using such Allocated Impressions shall be continuously
displayed within the SmartClicks' Network on Web sites with available ad banner
inventory unless otherwise mutually agreed.
(2) usage of such Allocated Impressions is subject to the Banner
Exchange Technology and the specific terms, conditions, requirements,
limitations and restrictions of the SmartClicks' Terms and Conditions as
currently specified in Exhibit H attached hereto.
c. Resale Of SmartAge Impressions. *** percent (***%) of all Clicks'
------------------------------
Impressions shall accrue to SmartAge. SmartAge agrees to grant Excite the right
to sell SmartAge's allocation of Clicks' Impressions, provided however, that any
such Impressions shall be purchased from SmartAge at a minimum price of ***
dollars ($***) per thousand (1,000) impressions. Both parties agree that each
such purchase shall be evidenced by an executed insertion order agreement
("IO"), and the payment and delivery of such SmartAge Impressions shall be as
mutually agreed and documented in each such IO.
d. Adjustments to Allocated Impressions. Excite acknowledges and
------------------------------------
understands that SmartAge may need to adjust the number of Allocated Impressions
from time to time to compensate for variations that may occur due to the unique
aspects of the scheduling and targeting of excess ad banner inventory within the
SmartClicks Network. In the event that any such adjustment is both material in
nature and results in a reduction in the number of Impressions allocated to
Excite in any calendar quarter, SmartAge agrees to make good such
***CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
Confidential and Proprietary Information 18
reduction by increasing the allocation of Impressions to Excite in the following
calendar quarter by the amount of such reduction.
e. Activity Reporting. SmartAge agrees to provide Excite with a daily
------------------
summary report specifying the total number of Active Clicks' Member Accounts, ad
banners shown by Clicks' Members, Impressions allocated during any prior day,
the current balance of unused Impressions, and any other information as mutually
agreed. Such summary report shall be accessed by Excite using a unique password
via an Internet address or in any other manner as both parties may mutually
agree.
4.5 Membership Growth Warrant. SmartAge agrees to issue a Membership Growth
-------------------------
Warrant to Excite in form set forth in Exhibit G, dependent upon the achievement
of certain performance milestones for Active Clicks' Members and Service
Members, in manner and as specified in Exhibit B, upon the date on which the
first such performance milestones are met by Excite.
5. SMARTAGE SERVICES.
5.1 General Obligations.
-------------------
a. Excite Offers SmartAge Services. Excite agrees to offer and promote
-------------------------------
the Offered Services to users of the Excite Site and the Excite Network, under
the terms and conditions of this Agreement. Each Offered Service shall be as
determined by SmartAge, subject to the reasonable approval of Excite.
b. Service & Maintenance. SmartAge agrees to be responsible for
---------------------
providing the Offered Services to users of the Excite Site and Excite Network in
a professional, reliable, and timely manner. SmartAge further agrees to be
responsible for maintaining and administering the Offered Services to ensure
that each consistently performs as reasonably expected by Service Members and as
represented by SmartAge.
c. Credit Card Processing. SmartAge agrees to be responsible for the
----------------------
processing of all credit card payments related to the sale of Offered Services
in a reasonably secure, accurate, reliable, and timely manner.
d. Customer Support. SmartAge agrees to be responsible for all customer
----------------
service issues and provide all customer service support related to the use of
the Offered Services. Such customer service and support shall be provided in a
professional and reliable manner, provided however, that all such customer
service shall be provided to Service Members via e-mail unless otherwise agreed
by SmartAge.
e. Member Data Collection and Maintenance. SmartAge agrees to collect,
--------------------------------------
maintain, and administer all Service Member Data at a location and on software
and equipment as determined by SmartAge.
5.2 SmartAge Services Marketing & Promotion.
---------------------------------------
a. SmartAge Branding. Both parties agree that each Offered Service shall
-----------------
be marketed and promoted as a SmartAge or third party provided service ("Service
Brand") to prospective and existing Service Members provided however, that each
Service Brand be determined by SmartAge, subject to the reasonable approval of
Excite. Service Brands shall be in size, form, design and page location as
determined by SmartAge, subject to the reasonable approval of Excite.
b. Promotion of Offered Services. Excite agrees to actively and with
-----------------------------
consistent frequency promote the Offered Services throughout the Excite Network
through reasonable means as it determines from time to time. Excite further
agrees that each such promotion shall include a hyper-link ("Services
Promotional Link") or other reference which shall refer prospective or existing
Service Members to a Services Description Page (as defined in Section 5.3 (a)).
Confidential and Proprietary Information 19
c. Launch of Offered Services. Excite agrees that the first date upon
--------------------------
which a prospective Service Member shall be able to purchase an Offered Service
shall be no later than thirty (30) business days after the Effective Date unless
otherwise mutually agreed in writing.
d. Exclusivity. Excite shall not directly solicit or target prospective
-----------
or existing Service Members with offers that are competitive with any
individual Offered Service (as defined in Exhibit I) during the term of this
Agreement, provided, however, that such an Offered Service is available for use
and is offered by SmartAge. In the event that SmartAge has not launched or
decides to discontinue a particular Offered Service, then Excite shall be free
to promote an equivalent service to users of the Excite Network including
prospective or existing Service Members. In the event that Excite is acquired,
such restrictions shall only apply to the Excite Network and its direct
successors, and not the acquiring company. In the event that SmartAge offers an
additional service not specified on Exhibit I, SmartAge agrees that Excite shall
have the right but not the obligation to evaluate such new SmartAge service and
to offer it to users of the Excite Network under the same or equivalent terms as
those described within this Agreement.
e. SmartAge not an Agent. SmartAge shall not represent or market itself
---------------------
as a sales representative of the Excite Network and will not allow any SmartAge
sales representatives, if any, to solicit Advertisers for the purpose of
purchasing Available Inventory through SmartAge. Additionally, SmartAge will not
accept orders from any recognized advertising agency and will promptly direct
inquiries regarding the purchase of Available Inventory from advertising
agencies directly to Excite. SmartAge shall not expressly nor impliedly,
directly or indirectly, alter, enlarge or limit the representations or
warrantees contained in Excite's most current written internet and advertising
services warranty as distributed or changed from time to time by Excite for the
applicable service. Subject to 3.2 (c) ("Referral Threshold") Excite retains the
absolute right to contact any party in regards to Excite business without any
obligation to contact SmartAge. Without limiting the generality of the
foregoing, neither party shall sign the other party's name to any commercial
paper, contract or other instrument and shall not contract any debt or enter
into any agreement, either express or implied, binding the other party to the
payment of money and/or in any other regard.
5.3 Web Page Requirements.
---------------------
a. Description Page. Each Services Promotional Link shall be hyper-
----------------
linked to a corresponding description page ("Services Description Page") which
shall include without limitation general information explaining the benefits of
each Offered Service as provided by SmartAge. Each Services Description Page
shall be in form and design, and served from a location as determined by
SmartAge, subject to the reasonable approval of Excite.
b. Service Registration Pages. Each Services Description Page shall
--------------------------
include a prominent graphical hyper-link that shall display "BUY NOW" or other
such similar statement that prompts a prospective or existing Service Member to
evaluate purchasing an Offered Service. Such prominent graphical hyperlink shall
be linked to one (1) or more registration pages (each a "Services Registration
Page") which shall describe the terms and conditions of a purchase and enable a
user to place an order for an Offered Service. Such Services Registration Pages
shall be in form and design and request Service Member Data as determined by
SmartAge, subject to the reasonable approval of Excite. SmartAge shall be
responsible for the Services Registration Pages and all other Web pages that a
prospective or existing Service Member shall access via each Services
Description Page, including but not limited to administrative and statistical
reporting pages. Each Services Registration Page shall be served from a location
as determined by SmartAge, subject to the reasonable approval of Excite.
5.4 Pricing & Revenue Share.
-----------------------
a. Pricing. SmartAge shall, in its sole discretion, set pricing for each
-------
Offered Service, provided however, that the Offered Services shall be offered
and promoted individually, in combination, or in aggregate to prospective and
existing Service Members for a *** to *** by *** to *** of such service or
services.
***CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
Confidential and Proprietary Information 20
b. Purchase Incentives. Notwithstanding Section 5.4 (a) herein, Excite
-------------------
acknowledges and understands that SmartAge may from time to time provide certain
incentives ("Services Incentives") owned by SmartAge to prompt purchase of an
Offered Service. Services Incentives shall include but are not limited to
SmartAge ad banner impressions and SmartAge free services.
c. Revenue Share. SmartAge agrees to pay Excite a referral fee of ***
-------------
percent (***%) of all revenues generated from the initial sale of the Offered
Services for a period of *** months, provided however, that such revenues shall
be net of the following:
. Third party fees in the event that such Offered Service is third
party provided;
. Non-collectable, incorrect, unauthorized, or fraudulent purchases
of the Offered Services.
5.5 Payment & Reporting.
-------------------
a. Payment. SmartAge agrees to pay all fees due Excite from purchases of
-------
the Offered Services, pursuant to Section 5.4 (c), within thirty (30) business
days of the end of the month in which such fees were generated.
b. Reporting. SmartAge agrees to provide Excite with a monthly summary
---------
report specifying at minimum the following:
(1) The total number of Service Members which purchased Offered
Services in the given month.
(2) The total dollar value of all revenues generated from Service
Members per Offered Service in the given month.
(3) The total dollar value of all non-collectible, incorrect,
unauthorized, or fraudulent sales in the given month.
(4) The calculation of the fees payable to Excite per Offered Service
for the given month pursuant to Section 5.4 (c).
(5) Any other information as mutually agreed.
c. Billing, Reporting, and Collections. SmartAge shall be responsible
-----------------------------------
for the management and administration of all invoicing, reimbursements, online
reporting, and collections of all delinquent or otherwise uncollected revenues
related to the Offered Services.
5.6 Membership Guarantees. Excite will *** a minimum combined number
---------------------
of Service Members and Active Clicks' Members over the first *** (***) months
after the launch of the EAN Program pursuant to Section 2.1 (i), according to
the following membership goals schedule ("Membership Goals"):
--------------------------------------------------------------------
By the end of the first 3-month *** Service/Active Clicks'
period after EAN launch Members
--------------------------------------------------------------------
By the end of the 6-month period *** Service/Active Clicks'
after EAN launch Members
--------------------------------------------------------------------
By the end of the 9-month period *** Service/Active Clicks'
after EAN launch Members
--------------------------------------------------------------------
By the end of the 12-month period *** Service/Active Clicks'
after EAN launch Members
--------------------------------------------------------------------
***CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
Confidential and Proprietary Information 21
In the event that the Membership Goals are not met per the above schedule
in any given three (3) month period, Excite will provide SmartAge up to ***
dollar ($***) of *** promotion on the Excite Network, which promotion shall be
run during the month following any such deficient three (3) month period. Such
discount shall be as mutually agreed and such promotion shall be used to promote
the Offered Services in a manner and only to the extent necessary to meet the
stated Membership Goals.
6. MEMBER DATA.
6.1 Ownership of Data. Both parties each acknowledge that all data of any
-----------------
kind regarding the EAN Program, the Excite Buying Service, the Banner Exchange
Service, and the Offered Services including without limitation Affiliate Data,
the serving of Syndicated Content, Redeemable Points, Advertiser Data, Clicks'
Member Data, and Service Member Data ("Total Data") shall be jointly owned by
the parties such that during the term of this Agreement all such data shall be
treated as Confidential Information (as defined in Section 9) of both parties.
Each party shall be permitted to use such data for marketing and other purposes
without notice or approval of the other party, provided however the following:
(i) The third party generating such data has not prohibited its use for such
purposes; (ii) such data may not be sold to a third party, (iii) use of such
data by a party shall not be specifically identified as originating from the
other party unless otherwise agreed in writing and (iv) Total Data shall not be
used by SmartAge to specifically target only SmartAge Members originating from
Excite and shall not be used by Excite to specifically target only SmartAge
Members originating from SmartAge.
6.2 Transfer of Data. Both parties agree that all data pursuant to Section
----------------
6.1 herein, collected by a party shall be made available to the other upon
request, provided however, that such data shall provided in form, manner, and
timeliness as mutually agreed.
7. POLICIES AND PROCEDURES.
7.1 Policies & Procedures. Both parties agree that the Terms and
---------------------
Conditions applicable to use of the services, Web sites, networks, or programs
as described within this Agreement shall apply to users, and both parties
reserve the right to reject any user that does not comply with such applicable
Terms and Conditions unless as otherwise specified within this Agreement or as
mutually agreed in writing.
7.2 Approval of Member Sites and Ad Banners. Each Affiliate and Clicks'
---------------------------------------
Member Site and its ad banners must be approved before submitting ad banners to
the SmartClicks' Network and prior to being served using the Banner Exchange
Technology. Such approval will be based upon the standard Terms and Conditions
that SmartClicks' Members are subject to unless as otherwise specified within
this Agreement or as mutually agreed in writing.
8. TRADEMARKS.
8.1 SmartAge Trademarks. SmartAge hereby grants to Excite, for the term of
-------------------
this Agreement, a non-exclusive, non-transferable license to use and display the
SmartAge Brand, including without limitation its name and logo and other
trademarks, trade names, service marks, and service names that SmartAge uses
from time to time on the Excite Site and the Excite Network in connection with
the terms and conditions of this Agreement provided however that: (i) Excite
will at all times use the appropriate trademark or service ▇▇▇▇ notice as
SmartAge may from time to time specify with respect to any use of the SmartAge
Brand; (ii) Excite will not modify the SmartAge Brand or use it for any purpose
other than as set forth herein; and (iii) Excite will not engage in any action
associated with the SmartAge Brand that adversely affects the good name, good
will, image or reputation of SmartAge. Excite agrees that all use of the
SmartAge Brand hereunder shall inure to the benefit of SmartAge.
***CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
Confidential and Proprietary Information 22
8.2 Excite Trademarks. Excite hereby grants to SmartAge, for the term of
-----------------
this Agreement, a ***, *** license to use and display the Excite Brand,
including without limitation its name and logo and such other trademarks, trade
names, service marks, and service names that Excite uses from time to time on
the SmartAge Site and the SmartClicks' Network in connection with the terms and
conditions of this Agreement provided however that: (i) SmartAge will at all
times use the appropriate trademark or service ▇▇▇▇ notice as Excite may from
time to time specify with respect to any use of the Excite Brand; (ii) SmartAge
will not modify the Excite Brand or use it for any purpose other than as set
forth herein; and (iii) SmartAge will not engage in any action associated with
the Excite Brand that adversely affects the good name, good will, image or
reputation of Excite. SmartAge agrees that all use of the Excite Brand hereunder
shall inure to the benefit of Excite.
8.3 Limitation. Except as expressly set forth herein, no license to either
----------
party's brands, trademarks or other such identifying marks is granted under this
Agreement and neither party may use the other party's identifying marks without
prior written consent.
9. TERM AND TERMINATION.
9.1 Term. This Agreement shall become effective on the Effective Date and
----
shall continue in effect for an initial term of twenty-four (24) months subject
to earlier termination pursuant to Sections 9.2 and 9.3 as described herein.
9.2 Termination Without Cause. Either party may terminate this Agreement
-------------------------
for any reason or no reason upon providing the other party at least sixty (60)
calendar days prior written notice of such termination provided however that no
such termination without cause may occur within ninety (90) days of the
Effective Date, except for the nonpayment of any amount due Excite, which shall
be subject to a five (5) day cure period.
9.3 Default. In the event either party defaults in the performance of any
-------
material obligation required to be performed hereunder, and such default is not
cured within thirty (30) calendar days after written notice thereof by the other
party, then the non-defaulting party, at its option, may, in addition to any
other remedies it may have, immediately terminate the Agreement by giving
written notice of termination to the defaulting party.
9.4 Insolvency. The Agreement may be terminated by either party,
----------
immediately on notice, (a) if the other party becomes insolvent, (b) upon the
institution by the other party of insolvency, receivership or bankruptcy
proceedings or any other proceedings for the settlement of its debts, (c) upon
the institution of such proceedings against the other party, which are not
dismissed or otherwise resolved in such other party's favor within forty-five
(45) days thereafter, (d) upon the other party's making a general assignment for
the benefit of creditors, or (e) upon the other party's dissolution or ceasing
to conduct business in the normal course.
9.5 No Liability for Damages. Neither party shall be liable for damages of
------------------------
any kind as a result of exercising its right to terminate this Agreement
according to its terms, and termination will not affect any other right or
remedy at law or in equity of either party.
9.6 Effect of Termination. Upon termination or expiration of the
---------------------
Agreement, each party shall cease to perform all services for the other party as
described in this Agreement. Each party shall also immediately discontinue any
use of the other party's tradename and trademarks and all promotional activities
related to the other party's products or services. Each party further agrees to
immediately return all materials in its possession belonging to the other party.
9.7 Survival. Except as otherwise set forth herein, all rights and
--------
obligations of the parties pursuant to the following Sections shall survive any
termination of this Agreement: Sections 6, 8, 9.5, 9.6, 9.7, 10, 11, 12, 13, and
14.
***CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
Confidential and Proprietary Information 23
10. CONFIDENTIALITY.
a. Each party to this Agreement acknowledges that it may receive
confidential information ("Confidential Information") of the other party. For
purposes of this Agreement, Confidential Information shall mean any trade
secret, information, process, technique, algorithm, computer program (source and
object codes), design, drawing, formula, test data, business development and
marketing plans and concepts, records and files, financial data and budgetary
information, income or sales data or projections, customer lists, information
regarding customers, facilities, suppliers, plans, or market analysis.
b. Each party covenants and agrees that: (1) it will not, at any time,
reveal, divulge, or make known to any person, firm, corporation, or other entity
any Confidential Information of the other party; (2) it will not publish,
communicate, divulge, disclose or use such information for any purpose not
authorized by the other party, nor make copies or disclose in any manner
Confidential Information to any third party without prior written consent of the
other party; (3) it will not use the Confidential Information of the other party
for any purpose except to the extent required to accomplish the intent of this
Agreement; and (4) it will return to any documents (including copies, if any)
containing Confidential Information of the other party after the need for such
information has expired, or upon the request of the other party, and in any
event, upon completion or termination of this Agreement.
c. Each party shall take reasonable security precautions, at least as
great as the precautions it takes to protect its own trade secrets, with respect
to the Confidential Information which it receives and shall disclose
Confidential Information on a need to know basis only to its subsidiary, agent
or subcontractor who is obligated to treat the Confidential Information in a
manner consistent with all the obligations of this Agreement.
d. The term Confidential Information does not include information which
the receiving party can demonstrate by competent written proof: (i) is now, or
hereafter becomes, through no act or failure to act on the part of the receiving
party, generally known or available (ii) is known to the receiving party at the
time of receiving such information as evidenced by its records (iii) is
hereafter furnished to the receiving party by a third party, as a matter of
right and without restriction on disclosure; or (iv) is the subject of written
permission to disclose provided by the other party.
e. Each party agrees that any breach of obligations under this Section 10
shall be a material breach of this Agreement and result in irreparable harm to
the non-disclosing party for which damages would be an inadequate remedy and, in
addition to the rights and remedies otherwise available at law, the non-
disclosing party shall be entitled to equitable relief, including injunction, in
the event of such breach.
11. LIMITATION OF LIABILITY.
11.1 Aggregate Liability. In no event, except under Section 13 of this
-------------------
Agreement, shall either party be liable for monetary damages of any form,
whether direct, indirect, special, punitive, or consequential damages
(including, but not limited to, damages for loss of business profits, business
interruption, loss of programs or information, and the like), or any other
damages arising in any way out of the availability, use, reliance on, or
inability to use the EAN Program, the Syndicated Content, the Buying Services,
the Banner Exchange Service or the Offered Services or any information, even if
the other party knows of the possibility of such damages, and regardless of the
form of action, whether in contract, tort (including without limitation
negligence), or otherwise.
11.2 Service Interruptions. SmartAge and Excite will endeavor to keep their
---------------------
respective web sites and services operational at all times, but certain
technical difficulties may, from time to time, result in temporary service
interruptions. Neither party shall be liable to the other for any consequences
of such services interruptions.
Confidential and Proprietary Information 24
11.3 Force Majeure. Neither party shall be responsible for any failure or
-------------
delay in performance of its obligations under this Agreement because of
circumstances beyond its reasonable control, including, without limitation, acts
of God, network failures or telecommunications failures.
12. WARRANTIES.
12.1 Mutual Representations and Warranties: Each party hereby represents
-------------------------------------
and warrants as follows:
a. Each party is duly organized and validly existing under the laws of
the state of its incorporation and has full corporate power and authority to
enter into this Agreement and to carry out the provisions hereof.
b. Each party is duly authorized to execute and deliver this Agreement
and to perform its obligations hereunder.
12.2 Intellectual Property Rights.
----------------------------
a. SmartAge has the full and exclusive right to grant or otherwise
permit Excite access to the SmartAge Site, SmartAge's intellectual property, and
any applicable third party's intellectual property, and SmartAge is aware of no
claims by any third parties adverse to any of such intellectual property rights.
b. Excite has the full and exclusive right to grant or otherwise
permit SmartAge access to the Excite Site, Excite Network, Excite's intellectual
property, and any applicable third party's intellectual property, and Excite is
aware of no claims by any third parties adverse to any of such intellectual
property rights.
c. If a party's (the "Infringing Party") intellectual property rights
are alleged or held to infringe the intellectual property rights of a third
party, the Infringing Party shall, at its own expense, and in its sole
discretion, (1) procure for the non-Infringing Party the right to continue to
use the allegedly infringing intellectual property or (2) replace or modify the
intellectual property to make it non-infringing; provided, however, if neither
option is possible or economically feasible and if the inability to use such
intellectual property would cause a material breach of this Agreement (as
determined by the non-Infringing Party), the Infringing Party may terminate this
Agreement.
12.3 Limitation of Warranty. EXCEPT AS EXPRESSLY WARRANTED IN THIS SECTION
----------------------
HEREIN, EACH PARTY EXPRESSLY DISCLAIMS ANY FURTHER WARRANTIES, EXPRESS, IMPLIED,
OR STATUTORY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
13. INDEMNIFICATION.
13.1 SmartAge Indemnification. SmartAge shall indemnify, defend and hold
------------------------
harmless Excite and its officers, directors, employees and agents (the "SmartAge
Indemnified Parties") from and against any and all claims, demands, liabilities,
damages, actions, causes of action, costs or expenses of any kind or nature,
including reasonable attorney's fees and costs (together "Claims") arising out
of any allegation, suit or claim made or threatened by any third party against
SmartAge Indemnified Parties, for infringement or misappropriation of any
copyright, trademark, trade secret or service ▇▇▇▇ of any third party with
respect to SmartAge's material and negligent breach of an obligation to Excite
under this Agreement.
13.2 Excite Indemnification. Excite shall indemnify, defend and hold
----------------------
harmless SmartAge and its officers, directors, employees and agents (the "Excite
Indemnified Parties") from and against any and all claims, demands, liabilities,
damages, actions, causes of action, costs or expenses of any kind or nature,
including reasonable attorney's fees and costs (together, "Claims") arising out
of any allegation, suit or claim made or
Confidential and Proprietary Information 25
threatened by any third party against Excite Indemnified Parties, for
infringement of copyright, trademark, trade secret or service ▇▇▇▇ of any third
party due to Excite' material and negligent breach of an obligation to SmartAge
under this Agreement.
13.3 Provision of Indemnity. Any party entitled to indemnity under
----------------------
Sections 13.1 or 13.2 herein (the "Indemnified Party") shall promptly notify the
other party in writing (the "Indemnifying Party") of any Claim for which the
Indemnified Party seeks indemnification, and shall permit the Indemnifying Party
to control the defense of any such Claim with counsel of Indemnifying Party's
choice. The Indemnified Party shall reasonably cooperate in the defense of any
Claim, and may, at its own cost and expense, participate in any defense with
counsel of its choice. In the event the Indemnifying Party fails after written
notice to perform its obligations under this Section 12, the Indemnified Party
may at its election take any action, including the settlement of any Claim,
without further notice to the Indemnifying Party, and without waiving any rights
or Claims against the Indemnifying Party it may have under this Agreement, at
law or in equity. The Indemnifying Party shall not settle any Claim without the
prior written consent of the Indemnified Party, which consent shall not be
unreasonably withheld.
14. MISCELLANEOUS.
14.1 MatchLogic. Both parties agree to evaluate using Excite's wholly
----------
owned subsidiary MatchLogic to provide the mechanism to redeem Redeemable Points
and serve ad banners for the EAN Program pursuant to Section 2.1 (d). Both
parties further agree to evaluate, when reasonably possible, expanding the
relationship between the parties specifically through SmartAge adapting or
incorporating the MatchLogic technologies and capabilities into the Banner
Exchange Technology. For example, such adaptation may potentially include
without limitation using the MatchLogic technology to manage the serving of ad
banners on the SmartClicks' Network.
14.2 Media Releases. Within thirty (30) days of the Effective Date, the
--------------
parties agree to issue a joint press release concerning the existence of this
Agreement and the related terms hereof, provided however, such press release
shall not make any reference to the Excite Buying Service. The parties further
agree that within thirty (30) days of the launch of the Excite Buying Service,
the parties shall issue an additional joint press release describing such
service. No press release or other public statement concerning the existence or
terms of this Agreement shall be made or released to any medium except as
provided within this Agreement and with the prior written approval of the
parties or as required by law. Excite further agrees that any such joint press
release shall include a statement from an EVP of Excite and the CEO of SmartAge.
14.3 Audit Rights. Either party or its designated agent shall have the
------------
right upon thirty (30) days prior written notice to audit the other party's
server logs, data files, accounting records or other reasonably necessary
documents for the sole purpose and to the extent necessary to ensure compliance
with the terms of this Agreement. Such audit(s) shall be conducted at the
auditing party's own expense, provided however, that such audits shall be
limited to one occasion per six (6) month period and further provided that each
such audit shall be performed by a third party mutually approved in writing. In
the event that such audit discloses that the audited party has under paid by ten
percent (10%) or more, it will reimburse the auditing party for the reasonable
costs of such audit. Both parties agree to cooperate with the other party or its
designated agent in all reasonable aspects regarding such audit(s) and to
provide the other party with appropriate access to all reasonably necessary
documentation related thereto. In the event the audit reveals an under payment
of fees due, the underpaying party shall pay such fees due to the other party
other immediately upon written notice and verification.
14.4 Assignment. Neither party may assign or transfer any of its rights,
----------
duties or obligations herein to any party without the prior written consent of
the other party and any purported attempt to do so shall be null and void;
provided that no consent shall be required for assignment to an affiliate or to
an entity acquiring all or substantially all of the assigning party's business.
Confidential and Proprietary Information 26
14.5 Relationship of Parties. SmartAge and Excite are independent
-----------------------
contractors and nothing in this Agreement is intended or will create any form of
partnership, joint venture, agency, franchise, sales representative or
employment relationship between the parties. Neither party has the authority,
without the other party's prior written approval, to bind or commit the other
party in any way.
14.6 Waiver. No waiver of any provision of the Agreement shall be
------
effective unless made in writing and signed by the party against whom
enforcement is sought. No waiver of any breach of any provision of the Agreement
shall constitute a waiver of any subsequent breach of the same or any other
provision of the Agreement.
14.7 Governing Law and Dispute Resolution. Any dispute regarding the
------------------------------------
interpretation or validity hereof shall be governed by the laws of the State of
California, U.S.A, exclusive of that body of law relating to choice of law. Any
dispute arising under the Agreement shall be resolved by binding arbitration
under the International Rules and administration of the American Arbitration
Association. The hearing shall be held in California, or such other location as
the parties may agree. The panel shall render its decision in writing, and
judgement upon the panel's award may be entered in any court of appropriate
jurisdiction.
14.8 Severability. The provisions of this Agreement are severable. If any
------------
one or more such provisions are judicially determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions or portions of the
Agreement shall be binding on and enforceable by and between the parties hereto.
14.9 Notices. All notices required or permitted under this Agreement will
-------
be in writing, will reference this Agreement and will be deemed given: (a) when
actually delivered in person; (b) when sent by confirmed facsimile; or (c) the
next business day after deposit with a commercial overnight carrier specifying
next-day delivery, with written verification of receipt. All communications will
be sent to the address set forth below or to such other address as may be
designated by a party by giving written notice to the other party pursuant to
this Section 14.9:
Confidential and Proprietary Information 27
SmartAge
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, VP Business Development
Excite
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, VP Business Development
14.10 Counterparts. This Agreement may be executed in two (2)
------------
counterparts, each of which shall be deemed an original and both of which
together shall constitute one instrument.
14.11 Entire Agreement. This Agreement and the Exhibits hereto constitute
----------------
the entire agreement between the parties and supersede all prior agreements and
understandings between them relating to the subject matter hereof. No
modifications of the Agreement shall be binding on either party unless it is in
writing and signed by the party to be charged.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
themselves or by their duly authorized representatives on the dates set forth
below to be effective as of the Effective Date.
SMARTAGE EXCITE
BY: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------- --------------------------
NAME: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ NAME: ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------- ------------------------
TITLE: Vice President of Business Development TITLE: EVP-CFO
-------------------------------------- -----------------------
Confidential and Proprietary Information 28
EXHIBIT A
MEMBERSHIP GROWTH WARRANT
The Stock Purchase Warrant in the form set forth in Exhibit G shall be issued to
Excite and exercisable into shares of SmartAge Series B Preferred stock at an
exercise price of $1.10 per share upon the achievement of performance milestones
as follows:
Performance Milestones:
- 189,344 shares of Series B Preferred stock of SmartAge for the first ***
combined Active Clicks' Members and Service Members.
- 189,344 shares of Series B Preferred stock of SmartAge for the next ***
combined Active Clicks' Members and Service Members for a total of ***.
- 189,344 shares of Series B Preferred stock of SmartAge for the next ***
combined Active Clicks' Members and Service Members for a total of ***.
- 189,344shares of Series B Preferred stock of SmartAge for the next ***
combined Active Clicks' Members and Service Members for a total of ***.
- 189,344shares of Series B Preferred stock of SmartAge for the next ***
combined Active Clicks' Members and Service Members for a total of ***.
- 189,344 shares of Series B Preferred stock of SmartAge for the next ***
combined Active Clicks' Members and Service Members for a total of ***.
- 189,344 shares of Series B Preferred stock of SmartAge for the next ***
combined Active Clicks' Members and Service Members for a total of ***.
***CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
Confidential and Proprietary Information 29
EXHIBIT B
SALES GROWTH WARRANT
The Stock Purchase Warrant in the form set forth in Exhibit K shall be issued to
Excite and exercisable into shares of SmartAge Series B Preferred Stock at an
exercise price of $1.10 per share upon the achievement of performance milestones
as follows:
- 378,688 shares of Series B Preferred stock of SmartAge when total revenues
generated from the sale of Available Inventory via the Excite Buying
Service reach $*** during the term of the Agreement.
- 189,344 shares of Series B Preferred stock of SmartAge when total revenues
generated from the sale of Available Inventory via the Excite Buying
Service reach $*** during the term of the Agreement.
- 189,344 shares of Series B Preferred stock of SmartAge when total revenues
generated from the sale of Available Inventory via the Excite Buying
Service reach $*** during the term of the Agreement.
- 189,344 shares of Series B Preferred stock of SmartAge when total revenues
generated from the sale of Available Inventory via the Excite Buying
Service reach $*** during the term of the Agreement.
- 189,344 shares of Series B Preferred stock of SmartAge when total revenues
generated from the sale of Available Inventory via the Excite Buying
Service reach $*** during the term of the Agreement.
***CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
Confidential and Proprietary Information
EXHIBIT C
EAN PROGRAM AFFILIATE GUIDELINES
A prospective Affiliate will be approved into the EAN, and thus approved to
generate *** ("***") for *** into said *** site and to generate and redeem
reward points for banners and other services (as provide by the Agreement) on
the SmartAge SmartClicks banner exchange service, provided that said Affiliate
web site:
1. does not advertise or enable the sale of *** or *** products;
2. does not advertise or enable the sale of ***;
3. does not fall within the *** or *** content category;
4. does not fall within the "***" content category does not engage in
any ***.
***CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
Confidential and Proprietary Information 31
EXHIBIT D
EXCITE BANNER ADVERTISING
General Terms and Conditions
Advertiser acknowledges that the sole obligation of Excite Inc. ("Excite") is to
display an advertising banner (the "Banner") from Advertiser which conforms to
the specifications set forth elsewhere in the insertion order (the insertion
order and these General Terms and Conditions are referred to collectively herein
as the "Agreement"). In this regard, Advertiser agrees that (i) Excite has the
right to market, display, perform, transmit and promote the Banner, and (ii)
users of Excite's services have the right to access and use the Banner and any
content and/or services directly linked to the Banner (the "Advertiser Web
Content").
All advertising will be invoiced monthly and payment in full will be due upon
receipt of the invoice. Payment for all Gaming, Tobacco, or Alcohol Advertisers
will be due and paid in advance in monthly installments. The first monthly
payment must be paid prior to the display of the first of the Banners.
Subsequent monthly installment will be due and must be paid on the first of each
month thereafter. Advertiser understands that once this Agreement is executed
there shall be no refunds or proration of rates even if Advertiser elects to
discontinue display of the Banner prior to expiration of the advertising term.
Orders are accepted subject to the terms and provisions of the current price
list. Advertising prices set forth in the price list are subject to change; any
price changes will apply to any additional advertising services requested by
Advertiser after such price change.
UNDER NO CIRCUMSTANCES SHALL EXCITE BE LIABLE TO THE ADVERTISER FOR INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES
ARE FORESEEABLE, AND WHETHER OR NOT EXCITE HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES) ARISING FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP
PROVIDED FOR HEREIN. EXCITE SHALL IN NO EVENT BE LIABLE TO ADVERTISER FOR MORE
THAN THE TOTAL AMOUNT PAID TO EXCITE BY ADVERTISER HEREUNDER. EXCITE MAKES NO
REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR
IMPLIED, REGARDING EXCITE'S SERVICES OR ANY PORTION THEREOF, INCLUDING ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND
IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXCITE SPECIFICALLY DISCLAIMS
ANY WARRANTY REGARDING (I) THE NUMBER OF PERSONS WHO WILL ACCESS THE BANNER AND
(II) ANY BENEFIT ADVERTISER MIGHT OBTAIN FROM INCLUDING THE BANNER WITHIN
EXCITE'S WEB SITE.
Advertiser is solely responsible for any legal liability arising out of or
relating to (1) the Banner and/or (2) the Advertiser Web Content. Advertiser
represents and warrants that the Banner complies with Excite's advertising
standards; and that Advertiser holds the necessary rights to permit the use of
the Banner by Excite for the purpose of this Agreement; and that the use,
reproduction, distribution, or transmission of the Banner will not violate any
criminal laws or any rights of any third parties, including, but not limited to,
such violations as infringement or misappropriation of any copyright, patent,
trademark, trade secret, music, image, or other proprietary or property right,
false advertising, unfair competition, defamation, invasion of privacy or rights
of celebrity, violation of any anti-discrimination law or regulation, or any
other right of any person or entity; (4) neither the Banner nor the Advertiser's
Web Content shall advertise or enable the sale of alcohol to persons under 21;
(5) neither the Banner nor the Advertiser's Web Content shall advertise or
enable the sale of tobacco or tobacco products to persons under 21; and (6)
Advertiser's Web Content complies with all laws, rules and regulations of the
state, country or territory in which it is located. Advertiser agrees to
indemnify Excite and to hold Excite harmless from any and all liability, loss,
damages, claims, or causes of action, including reasonable legal fees and
expenses that may be incurred by Excite, arising out of or related to
Advertiser's breach of any of the foregoing representations and warranties.
Confidential and Proprietary Information 32
Excite reserves the right to reject any advertising which is not consistent with
Excite's standards. In addition, Excite shall have the right, at any time, to
remove any of Advertiser's advertising if Excite determines, in its sole
discretion, that the Banner, Advertiser Web Content or any portion thereof (i)
violates Excite's then applicable advertising policy, or (ii) is otherwise
objectionable to Excite, in which event Excite shall refund to Advertiser a pro
rata portion of the fee which Advertiser has paid to Excite for display of the
Banner (if Advertiser has paid Excite a flat fee).
Excite and Advertiser are independent contractors, and neither Excite nor
Advertiser is an agent, representative or partner of the other. Excite may
terminate this Agreement at any time in the event of material breach of this
Agreement by Advertiser. This Agreement sets forth the entire agreement between
Advertiser and Excite, and supersedes any and all prior agreements (whether
written or oral) of Excite and Advertiser with respect to the subject matter set
forth herein; provided, however, that all pricing will be governed by Excite's
then-current price list, whether in print or electronic form. This Agreement may
only be modified, or any rights under it waived, by a written document executed
by both parties. This Agreement shall be interpreted, construed and enforced in
all respects in accordance with laws of the State of California, without regard
to the actual state or country of incorporation or residence of Advertiser.
Advertiser hereby irrevocably consents to the exclusive jurisdiction of the
courts of the State of California and the federal courts situated in the State
of California in connection with any action arising under this Agreement.
Advertiser may not assign this Agreement, in whole or in part.
Policies for Adult-Content Advertisers
Adult advertisers may only buy inventory that matches them to an audience
seeking adult content: adult keywords and adult-content pages. Personals content
is available to Adult content advertisers with specific creative guidelines.
Adult content advertisers may not buy General Rotation.
Adult ad banners and jump pages are subject to strict review prior to ad
production. Excite reserves the right to refuse any inappropriate banner or jump
page submissions.
Banner Guidelines for Adult Content Keywords and Pages
. No Partial nudity.
. No anatomical body part(s) may be shown in the image.
. No profane or explicit language may be used in any part of the text.
. Promoting or suggestion of physical acts between men, women, teenagers,
children/child porn, or animals will not be allowed.
. Banners containing more than one person's image will be strictly
reviewed.
. Advertising for, or banners linking to, escort services will not be
allowed.
Banner Guidelines for Personals Content Pages
Adult content banners on Personals content pages must adhere to creative
guidelines for Adult content keywords and pages in addition to the following
guidelines:
. No suggestion of nudity.
. No suggestion of physical acts between men, women, teenagers,
children/child porn or animals in images or text.
Confidential and Proprietary Information 33
Jump Page Guidelines
The jump page must give the Web user the ability to return to Excite content.
The back button or closing the browser cannot be used to spawn additional
browsers with adult content, nor may any browser functionality be reprogrammed
to retain the user on the site or jump page. Also, daughter windows cannot be
spawned on the jump pages. Additionally:
. Only one image on the jump page. Maximum size is 123 x 123 pixels.
. Banner image creative guidelines apply to jump pages.
. Text must state "This site contains Adult Content."
. Text must ask potential customers to claim if they are over 18 in order
to enter the site and must also give minors/others to option to exit the
jump page/adult content site.
. Suggested text is as follows:
a) "Click here to enter only if you are 18 and over"
b) "If you are under 18, click here to exit"
Additional text is limited to:
a) "18 and over only"
b) "Adults only"
Confidential and Proprietary Information 34
EXHIBIT E
Excite Network Web sites:
▇▇▇.▇▇▇▇▇▇.▇▇▇
--------------
▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇
------------------
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
-----------------------
Excite international sites, including without limitation:
Australia
China
France
Germany
Italy
Japan
Netherlands
Sweden
U.K.
Confidential and Proprietary Information 35
EXHIBIT F
EXCITE COMPETITORS:
Alta Vista
Infoseek
LookSmart
Lycos/HotBot
AOL/Netscape Communications Corporation
Planet Direct
Snap! (Cnet)
Yahoo
Confidential and Proprietary Information 36
EXHIBIT H
By joining the SmartClicks ad network, members have indicated agreement to the
following terms and conditions. Compliance with the terms and conditions ensures
that only appropriate sites become SmartClicks members and that all network
advertising meets SmartClicks standards.
Any account or member violating these terms will be immediately removed from the
SmartClicks ad network.
1. SmartClicks reserves the right to refuse to continue membership to any Web
site in the SmartClicks network that contains or has links to nudity, sexual
situations, pornography, hate groups, illegal activities, offensive material or
for any other reason.
2. SmartClicks reserves the right to refuse to continue membership to any Web
site deemed to be competition, including, but not limited to, other banner
exchange services.
3. SmartClicks reserves the right to reject any banner that contains nudity,
profanity, offensive material or for any other reason.
4. Members agree to insert the provided SmartClicks HTML code for displaying
banners on their Web site. The SmartClicks HTML code may not be modified in any
way without written permission from SmartClicks.
5. Only one (1) SmartClicks banner may be placed on a page. A page is what is
displayed on one screen, so members who use frames must count all individual
pages in the frame as one page for banner placement purposes.
6. SmartClicks ad network banners must be displayed on the page such that the
banner is easily visible. Banners may not be "hidden" so that a visitor has no
way to view the banner.
7. SmartClicks banners must remain static on the member's Web site, and may not
be rotated with those of any other banner exchange service.
8. A member may not artificially inflate traffic counts to his/her site using
any device, program, robot or other means. A banner may not be placed on a page
that reloads automatically. Banners loaded via the SmartClicks HTML may not be
placed in newsgroups, e-mail, chat rooms or guestbooks, unless permission is
granted from SmartClicks. Any member whose account is terminated for
artificially inflated traffic counts may offer a defense to have the account re-
instated. SmartClicks' logs and/or judgments in these matters will prevail.
9. A member may not display the SmartClicks HTML on sites other than the one to
which the account is addressed to click through to, unless written permission is
granted from SmartClicks. A member may display the SmartClicks HTML on any of
the pages on the site, as long as there is a path of links from the page that
the banner clicks through to, to the page on which the banner is displayed.
10. A banner that appears on a member site may at any time be a banner for
another member, for a sponsor or partner, for SmartClicks or for other SmartAge
services. Ratings restrictions apply.
11. SmartClicks reserves the right not to accept any advertisements from
entities whose product or advertisement are deemed by SmartClicks to be
inappropriate, or for any other reason.
12. Members may cancel their accounts with the SmartClicks ad network at any
time by sending a request for cancellation, containing the account number and
password of the account in question, via e-mail to ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, and
removing the SmartClicks HTML code from the Web site. Cancellations take place
immediately.
Confidential and Proprietary Information 46
13. The SmartClicks name, logo, software, databases, reports, Web site and
information are proprietary and cannot be used without permission from
SmartClicks. Exception: each member has the right to use information compiled by
SmartClicks for the member's site or in the promotion of the member's site.
14. Members agree that their Web site information (name, URL, traffic counts,
etc.) may be used by SmartClicks, provided however, that it is the intent of
SmartAge to be consistent with the then current TrustE guidelines as of the
Effective Date.
15. The information members provide to SmartClicks will be kept confidential and
will not be distributed, except in aggregate, to any outside agency, without the
permission of the member, provided however, that it is the intent of SmartAge to
be consistent with the then current TrustE guidelines as of the Effective Date.
16. SmartClicks, its administrators, partners and sponsors cannot be held liable
for any damage or loss of information that may occur from the use of
SmartClicks' services.
17. Members agree to use SmartClicks at their own risk.
18. SmartClicks makes every effort to verify and maintain a high standard of
service quality, but SmartClicks does not make any guarantees regarding the
dependability or accuracy of SmartClicks' services.
19. SmartClicks will attempt to correct inconsistencies in credits due any
member based on the member's proof of inconsistency.
20. SmartClicks reserves the right to modify or change these Terms and
Conditions at any time, as it deems necessary. It is the member's responsibility
to keep current with changes in the Terms and Conditions, since changes are
effective for all members, regardless of when the member joined. Updates will be
evident by the date modified on the home page.
Confidential and Proprietary Information 47
EXHIBIT I
Design and Build
------------------------------------------------------------------------------------------------------------------------------------
Service Category Description
------------------------------------------------------------------------------------------------------------------------------------
SiteWatch Build SiteWatch is a monitoring service that tracks the performance of "your site" by measuring
the response time of the server, server downtime, and other metrics.
------------------------------------------------------------------------------------------------------------------------------------
Tune-Up Build A multifunctional diagnostic tool that helps administer and maintain web sites, including
HTML checking, spell checking, broken link checking, browser optimization and others.
------------------------------------------------------------------------------------------------------------------------------------
Browser Snapshot Build A web site diagnostic tool to shows how a web site is displayed by different browser
platforms.
------------------------------------------------------------------------------------------------------------------------------------
.GIF Lube Build A tool which shrinks the size of .gif images and optimizes .gifs to improve load times on
Web sites
------------------------------------------------------------------------------------------------------------------------------------
GIF optimization Build A second, but different .gif optimization tool. The leading GIF optimization solution
------------------------------------------------------------------------------------------------------------------------------------
Site Scan Build/Adm A multifunctional web site diagnostic tool that specializes in searching for broken
links.
------------------------------------------------------------------------------------------------------------------------------------
Market and Promote
------------------------------------------------------------------------------------------------------------------------------------
Service Category Description
------------------------------------------------------------------------------------------------------------------------------------
BannerCreater Promotion A simple free and for pay banner creation tool used to support the banner exchange
service.
------------------------------------------------------------------------------------------------------------------------------------
HTML Inserter Promotion A tool which automatically inserts the HTML into a user's web page required to display
banners for the banner exchange
------------------------------------------------------------------------------------------------------------------------------------
SiteRank Promotion A tool which measures a web site's relative search results position on the major search
engines given a set of user-supplied key words.
------------------------------------------------------------------------------------------------------------------------------------
TrafficPack Promotion A bundled suite of services that combines banner advertising with SmartAge Site Rank,
SmartAge Site Watch & SmartAge Submit/Add-it Pro
------------------------------------------------------------------------------------------------------------------------------------
SmartStarters Promotion A program where banner exchange users purchase banners in very small increments on the
SmartClicks Network only.
------------------------------------------------------------------------------------------------------------------------------------
Online Media Offers Promotion A program that offers a suite of Media purchasing (banners, key words) on multiple
networks
------------------------------------------------------------------------------------------------------------------------------------
Traditional Media Promotion A program that offers a suite of offline media offers including, but not limited to a
Offers newspaper ad, yellow page ad, radio Ad, coupon program
------------------------------------------------------------------------------------------------------------------------------------
WebSite Post Office Promotion A service that helps small businesses create customer mailing lists and them helps them
manage the creation of messages.
------------------------------------------------------------------------------------------------------------------------------------
Advanced Promotion A directory service which helps small business promote themselves amongst the banner
User exchange network, and helps them find the products and services they desire.
Directory/Service
finder
------------------------------------------------------------------------------------------------------------------------------------
Sell
------------------------------------------------------------------------------------------------------------------------------------
Service Category Description
------------------------------------------------------------------------------------------------------------------------------------
SmartOpps Sell A program that bring the top existing affiliate programs to the banner exchange members,
incents them to join and helps them make money off of the affiliate programs.
------------------------------------------------------------------------------------------------------------------------------------
Smart Affiliate Sell An application that lets banner exchange members build their own affiliate programs
Program with the same functionality and sophistication as leading large vendor affiliate
programs.
------------------------------------------------------------------------------------------------------------------------------------
Confidential and Proprietary Information
48
EXHIBIT J
SMARTAGE COMPETITORS:
LinkExchange
HyperBanner
BannerSwap
1-2-3 Banners
ValueClick
Digital Work
AtWeb
Springfield Project
Confidential and Proprietary Information
49
CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF
THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
Amendment to Marketing and Services Agreement
This Amendment to Marketing and Services Agreement (this "Amendment") is
entered into and effective as of April 30, 1999 (the "Effective Date") by and
between SmartAge Corp., a Delaware corporation, with principal place of business
at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("SmartAge") and Excite,
Inc., a Delaware corporation, with principal place of business formerly at ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇, but currently at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇ ("Excite").
RECITALS:
SmartAge and Excite entered into a Marketing and Services Agreement (the
"Agreement") dated April 30, 1999. SmartAge and Excite now wish to amend the
Agreement.
Not therefore, the parties agree as follows:
1. Section 3.2(b). Section 3.2(b) is hereby deleted and replaced with the
--------------
following:
(b) Exclusive Right. SmartAge shall be the exclusive provider of the
---------------
Excite Buying Service with such exclusive right commencing no later than on
or about ***, 1999, provided however, that such service, in Excite's
reasonable discretion, is best of breed compared to any other substantially
similar service available on the Internet in terms of the following
criteria, taken as a whole: (i) depth of coverage; (ii) timeliness; and
(iii) reputation and ranking based upon a cross-section of a minimum of
three third party reviewers in terms of features, functionality, quality
and other qualitative factors that are mutually deemed material in nature.
However, Excite may sell its advertising through automated buying services
belonging to third parties and operated on such third party Web sites,
provided that *** do not *** at such *** through *** on the *** to *** .
2. Section 3.3. Section 3.3 is hereby deleted and replaced with the following:
-----------
(a) Excite Buying Service. SmartAge agrees that the first date upon
---------------------
which Advertisers shall be able to purchase Available Inventory via the
Excite Buying Service shall be no later than on or about ***, 1999,
provided however, that Excite has fulfilled all its relevant obligations
and provided all reasonably necessary assistance to SmartAge in meeting
such launch date pursuant to Section 3.2.
(b) SmartAge Buying Service. SmartAge agrees that the first date upon
-----------------------
which Advertisers shall be able to purchase ad banner inventory via the
SmartAge Buying Service shall be no later than on or about ***, 1999.
SmartAge further agrees that the first date upon which Advertisers shall be
able to purchase Available Inventory via the SmartAge Buying Service shall
be no later than on or about ***, 1999.
3. Section 3.11(a). Section 3.11(a) is hereby deleted and replaced with the
---------------
following:
a. Sales Minimums. SmartAge shall guarantee to Excite the following
--------------
monthly minimums in revenues generated and received from SmartAge Sourced-
Leads ("Sales Minimums") according to the following table:
*** CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION
-1-
Month Minimum
----- -------
September 1999 $***
October 1999 $***
November 1999 $***
December 1999 $***
January 2000 $***
February 2000 $***
March 2000 $***
April 2000 $***
May 2000 $***
June 2000 $***
July 2000 $***
For each such month that SmartAge generates less than the
corresponding monthly Sales Minimum, SmartAge agrees to make up such
shortfall by purchasing Available Inventory on the Excite Network for
purposes of marketing SmartAge. Such shortfall purchase shall be as
determined by SmartAge, subject to the reasonable approval of Excite,
provided however, that SmartAge shall be able to make such purchase at an
*** of *** percent (***%) *** the then-current stated gross rates for
such Available Inventory. In the event that SmartAge generates less than
the corresponding monthly Sales Minimums in any three (3) one-month periods
commencing November 15, 1999, whether consecutive or not, then Excite shall
have the right to discontinue its obligations pursuant to Section 3.2(a) to
offer Available Inventory via the Buying Services.
4. Integration.
-----------
This Amendment, the Agreement and the Exhibits thereto constitute the
entire agreement between the parties and supersede all prior agreements and
understandings between them relating to the subject matter hereof. The
Agreement remains unchanged to the extent not modified in this Amendment. No
modifications of the Agreement shall be binding on either party unless it is in
writing and signed by the party to be charged. Sections 14.4 through 14.10 of
the Agreement are hereby incorporated by reference into this Amendment.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
themselves or by their duly authorized representatives on the dates set forth
below to be effective as of the Effective Date.
SMARTAGE CORP. EXCITE, INC.
By: /s/ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------ ------------------------------
Signature Signature
_________________________________ _________________________________
Print Name Print Name
Title:___________________________ Title:___________________________
***CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION
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Date:__________________________ Date:___________________
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