EXHIBIT 10.17
TERMS AND CONDITIONS
These terms and conditions ("Terms and Conditions") relate to the attached
Promotion Agreement and each advertising insertion order ("Insertion Order")
submitted by an advertiser or agency ("Advertiser") to SNAP! LLC ("SNAP"). This
document sets forth the Terms and Conditions under which SNAP will provide
advertising space to the Advertiser in fulfillment of the Insertion Order. As
herein, the term "this Agreement" shall refer to these Terms and Conditions, the
Promotion Agreement and each Insertion Order accepted by SNAP.
1. Insertion Order. Advertiser shall submit Insertion Orders to SNAP in
the form specified by SNAP. No Insertion Order will be binding upon SNAP unless
accepted in writing by SNAP or SNAP begins fulfillment, whichever occurs first.
This Agreement does not require SNAP to accept any individual Insertion Order
submitted by Advertiser.
2. Terms of Payment. If Advertiser desires to be granted credit by SNAP,
Advertiser shall submit a completed credit application to SNAP. If no credit
application is submitted or the request for credit is denied by SNAP (in its
sole discretion), the Insertion Order must be paid in advance of the
advertisement start date. If SNAP approves credit, Advertiser will be invoiced
on the first day of the contract period set forth on the Insertion Order. SNAP
may withdraw its approval of credit at any time in its discretion. Payment shall
be made to SNAP within thirty (30) days from the date of invoice. Amounts paid
after such date shall bear interest at the rate of one and one-half percent
(1.5%) per month (or the maximum rate permitted by law, if less). If Advertiser
fails to make any payment due hereunder, Advertiser will be responsible for all
reasonable expenses (including attorneys' fees) incurred by SNAP in collecting
such amounts. Advertiser shall be responsible for all applicable taxes (other
than those on SNAP's net income).
3. Usage Statistics. SNAP will provide Advertiser with usage statistics
in a format determined by SNAP and such usage statistics shall be considered
Confidential Information (as defined below). Unless specified in the Insertion
Order, SNAP makes no guarantees with respect to usage statistics or levels of
impressions for any advertisement. Advertiser acknowledges that usage statistics
provided by SNAP are the official, definitive measurements of SNAP's performance
on any delivery obligations provided in the Insertion Order. No other
measurements or usage statistics (including those of Advertiser or a third party
ad server) shall be accepted by SNAP or have bearing on this Agreement.
4. Positioning and Style. Except as otherwise expressly provided in the
Insertion Order, positioning of advertisements within the SNAP properties or on
any page is at the sole discretion of SNAP. Advertiser shall not submit, and
SNAP shall not be obliged to accept, advertisements that are not readily
identifiable as advertisements. SNAP may in its sole discretion label any
advertisement as an "advertisement" for clarification.
5. Provision of Advertising Materials. Advertiser will provide all
materials for the advertisements in accordance with SNAP's policies in effect
from time to time, including without limitation the manner of transmission to
SNAP and the lead-time prior to publication of the advertisement. A copy of
SNAP's advertising specifications can be obtained at
1.
[*]= CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
▇▇▇▇://▇▇▇.▇▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇/▇▇▇▇▇.▇▇▇▇. SNAP shall not be required to
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publish any advertisement that is not received in accordance with such policies
and specifications. SNAP reserves the right to charge Advertiser, at the ad rate
specified in the Insertion Order, for inventory held by SNAP pending receipt of
acceptable materials from Advertiser which are past due. Advertiser hereby
grants to SNAP a non-exclusive, worldwide, fully paid license to use, reproduce
and display the advertisement (and the content, trademarks and brand features
contained therein) in accordance with this Agreement.
6. Renewal. Except as expressly set forth in the Insertion Order, any
renewal of the Insertion Order and acceptance of any additional advertising
order shall be at SNAP's sole discretion. Pricing for any renewal period or
additional advertising order shall be at SNAP's then-current rates. Sections 10,
11, 12 and 14 will survive any termination of this Agreement. Any payment
obligation that exists as of the termination or expiration of this Agreement
will remain in effect.
7. Cancellations. All contents of advertisements are subject to SNAP's
approval, and SNAP may cancel any accepted Insertion Order or any individual
advertisement obligation within an Insertion Order at any time, with or without
cause, upon notice to Advertiser.
8. Restrictions. Advertiser may not resell, assign or transfer any of
its rights hereunder. Any attempt to resell, assign or transfer such rights
without SNAP's prior written consent shall result, in SNAP's discretion and upon
notice from SNAP, in immediate termination of this Agreement (including the
unfulfilled portions of any accepted Insertion Order), without liability to
SNAP.
9. Right to Reject Advertisement. All contents of advertisements are
subject to SNAP's approval. SNAP reserves the right to reject or cancel in whole
or in part any advertisement, Insertion Order, URL Link, space reservation or
position commitment at any time for any reason whatsoever (including belief by
SNAP that such obligation may subject SNAP to criminal or civil liability).
10. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR
ANY PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN ANY ACTION ARISING FROM OR
RELATED TO THESE TERMS AND CONDITIONS AND ANY INSERTION ORDER IN EFFECT BETWEEN
SNAP AND ADVERTISER, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE),
INTENDED CONDUCT OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DAMAGES RELATING TO
THE LOSS OF PROFITS, INCOME OR GOODWILL, REGARDLESS OF WHETHER SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SNAP'S
LIABILITY FOR MONETARY DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY
ADVERTISER TO SNAP OVER THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE
ACTION. In the event that SNAP fails to either publish an advertisement in
accordance with the schedule provided in the Insertion Order or, if applicable,
deliver the number of total impressions specified in the Insertion Order by the
end of the specified period, the sole liability of SNAP to Advertiser shall be
limited to one or more of the following, at SNAP's sole discretion: (i) a pro
rata refund of the advertising fee for undelivered impressions, (ii) placement
of the advertisement at a later time in
2.
a comparable position, or (iii) extension of the term of the Insertion Order
until total impressions are delivered. SNAP will have no liability to Advertiser
for any Internet or telecommunications failure, computer virus, third party
interference or other third party software or hardware that may interrupt or
delay access to any Internet site or cause other problems or losses
(collectively, a "Network Failure"). SNAP will not be liable for any delay or
failure to fulfill its obligations hereunder that results from an act of god,
war, civil disturbance, court order, legislative or regulatory action,
catastrophic weather condition, earthquake, failure or fluctuation in electrical
power or other utility services, network failure or other cause beyond its
reasonable control.
11. Warranty; Indemnity. Each party to this Agreement represents and
warrants to the other party that (i) such party has all necessary right, power
and authority to enter into this Agreement and to perform the acts required of
it hereunder, and (ii) the entry into this Agreement by such party, and the
performance by such party of its obligations and duties hereunder, do not and
will not violate any agreement of such party or by which such party is bound.
Advertiser represents and warrants to SNAP that each advertisement, as well as
the first Internet page accessible through any hypertext link included within an
advertisement, (i) does not infringe any intellectual property, confidentiality,
publicity or privacy rights of any third party, (ii) is not defamatory, (iii) is
not lewd, pornographic or obscene, (iv) is in compliance with all applicable
laws, (v) does not violate any laws regarding unfair competition,
antidiscrimination or false advertising and (vi) does not contain any virus,
worm, "trojan horse," time bomb or similar contaminating or destructive feature.
SNAP may test Advertiser's URLs and, in SNAP's sole discretion, may remove any
URLs at any time that fail to comply with the above requirements. If an
advertising agency is entering into this Agreement on behalf of Advertiser, such
advertising agency shall be jointly and severally responsible for all
obligations and amounts owing hereunder. Each such advertising agency represents
and warrants that it has full authority to act on Advertiser's behalf.
Advertiser agrees unconditionally to indemnify and hold harmless SNAP and its
affiliates, and their respective officers, agents and employees, from and
against any and all loss, liability and expense (including reasonable attorney's
fees) suffered or incurred by reason of any claims, proceedings or suits based
on or arising out of (i) any breach or alleged breach of the foregoing
representations and warranties; or (ii) the contents or subject matter of such
advertisements, including without limitation claims for defamation, violation of
rights or publicity and/or privacy, copyright infringement, and trademark
infringement.
12. Confidentiality. The parties acknowledge that they may have access to
confidential or proprietary technical or business information of each other,
including without limitation the usage statistics described in Section 3
(collectively, "Confidential Information"). Advertiser will maintain the strict
confidentiality of the Confidential Information and will not disclose the
Confidential Information to any third party or use the Confidential Information
for any purpose except those contemplated by this Agreement.
13. Entire Agreement. This Agreement (including any Insertion Order)
constitutes and contains the entire agreement between the parties with respect
to the subject matter hereof and supersedes any prior oral or written
agreements. If there is any apparent conflict or inconsistency between these
Terms and Conditions and any Insertion Order, these Terms and Conditions shall
control unless SNAP expressly agrees otherwise in writing. This Agreement may
not be amended except in writing signed by both parties. Nothing in this
Agreement will be deemed to constitute either party as the other's partner,
joint venturer, representative, agent or
3.
employee for any purpose. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY
ACKNOWLEDGES AND AGREES THAT THE OTHER HAS NOT MADE ANY REPRESENTATIONS OR
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
14. Applicable Law. This Agreement will be construed in accordance with
and governed by the laws of the State of California, without regard to
principles of conflicts of law. The parties mutually consent and submit to the
jurisdiction of the federal and state courts for San Francisco County,
California, and agree that any action, suit or proceeding concerning this
Agreement may be brought in the federal or state courts of such county and that
they will not raise, in connection therewith, any defense or objection based on
lack of personal jurisdiction, improper venue, inconvenience of forum or the
like.
4.
SPONSORSHIP PROPOSAL
▇▇▇▇.▇▇▇
Prepared on 2/19/99 - 08:59:50 A.M. for 1800 US Search
Campaign: White Pages Midas
Overview: ▇▇▇▇.▇▇▇ brought to you by NBC offers 1-800-US Search, an online-
sponsor presence on the sites mentioned above, complete with full
account supervision and service.
Sponsorhip Specifics:
Site Name Start Date End Date Mths. Days
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1 ▇▇▇▇.▇▇▇/▇▇▇▇▇▇ 1 ROS 02/22/99 02/21/2000 12-17 365
Program Totals:
Site Name Discount Units Impressions Gross Cost Net cost
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1 ▇▇▇▇.▇▇▇/▇▇▇▇▇▇ 1 ROS [*]% [*] [*] please see attachment...
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Totals
Comments: 1-800-U.S. Search shall own a midas button in the White Pages.
They shall be ROS throughout every result page in this channel.
Essentially having placement 100% of the time on every White Page
page. The attached sheet shall detail the monthly payments.
1-800-U.S. Search agrees to buy the stated [*]% growth projected
from month to month.
The Sponsorship Proposal and the Terms and Conditions attached hereto and
incorporated by reference herein are hereby accepted and agreed to as of the
date set forth above.
ADVERTISER: SNAP:
800-U.S. SEARCH /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Company Name Signature
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------- ----------------------------------------
Signature Printed Name
▇▇▇▇▇▇ ▇▇▇▇▇▇ Account Executive
----------------------------------- ----------------------------------------
Printed Name Title
VP Corporate and Legal Affairs
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Title
*One month equals 30 days
[*]=CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
1 800 US SEARCH
MIDAS BUTTON PROPOSAL
White Pages: ▇▇▇▇://▇▇▇▇.▇▇▇▇.▇▇▇/▇▇▇▇▇▇/▇▇▇▇▇▇/▇▇▇▇▇▇▇/▇,▇▇,-▇,▇▇.▇▇▇▇?
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st.sn.fdsc.0.wp
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[*]%
Monthly Daily Page
Growth Views Per Month $G CPM
--------- ------------ ----------- ---------------------------------------------
February [*] [*] $ [*] $ [*] pro rated for the week in
February
March [*] [*] $ [*]
April [*] [*] $ [*]
May [*] [*] $ [*]
June [*] [*] $ [*]
July [*] [*] $ [*]
August [*] [*] $ [*]
September [*] [*] $ [*]
October [*] [*] $ [*]
November [*] [*] $ [*]
December [*] [*] $ [*]
January [*] [*] $ [*]
February [*] [*] $ [*]
Yearly Revenue $ [*]
[*]=CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
**PLEASE SEND CREATIVE MATERIALS BASED ON THE SPECS BELOW TO:
▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇ and cc: ▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
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Banners
Artwork Size: 468x x 60h pixels (IAB standard)
ALT Text: Must be provided and cannot exceed 50 characters
Linking URL: An active linking URL must be provided and cannot exceed 128
characters.
Full size
and Format: Banners must be 12.0K or less for static or animated GIFs
Windows
Artwork Size: 120x x 60h pixels (IAB standard)
ALT Text: Must be provided and cannot exceed 12 characters
Linking URL: An active linking URL must be provided and cannot exceed 128
characters
File Size
and Format: Banners must be 5.0K or less for static or animated GIFs
Animation: GIF89a is the standard animation format; loop with a refresh time
of no less than two seconds. Creative should not include
transparent backgrounds and frame disposal should be sent to "do
not dispose."
Testing: All creative must function uniformly on both Mac and PC platforms
as well as multiple browser versions of Netscape and Internet
Explorer.
Deadlines: New advertisers must submit materials to CNET two (2) business
days prior to start date. Existing advertisers may change their
creative as often as they like as long as CNET receives creative
by noon the business day prior to the start date. Any banner not
conforming to the above specifications will not be placed online
and will result in delayed start dates.
Ad Programs
Contact: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Account Coordinator Midas Button Specs
▇▇▇-▇▇▇-▇▇▇▇ Ext. 1618 88 x 31 pixels
▇▇▇▇▇▇@▇▇▇▇.▇▇▇
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Sales Contact: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Account Executive
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
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Please call me when you receive this proposal and we can
Regards,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇://▇▇▇.▇▇▇▇.▇▇▇
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▇▇▇-▇▇▇-▇▇▇▇ Ext. 5505
▇▇▇-▇▇▇-▇▇▇▇ (Fax)
▇▇▇▇.▇▇▇ brought to you by NBC
Building a search engine as Big as the web itself
**PLEASE SEND CREATIVE MATERIALS BASED ON THE SPECS BELOW TO:
▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇ and cc: ▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
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From: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Sent: Thursday, March 11, 1999
To: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Cc: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Subject: contract addendum
ADDENDUM TO CONTRACT DATED MARCH 2, 1999:
▇-▇▇▇ ▇.▇. Search shall have an "exclusive" and permanent Midas button
within the white page section on ▇▇▇▇.▇▇▇ during the "term" of the contract.
"Exclusive" means that ▇▇▇▇.▇▇▇ will not sell a permanent Midas button to any
"competitor" of ▇-▇▇▇ ▇▇ Search. A "competitor" is defined as anyone who sells
public records as a people locator service as their primary line of business.
The "term" of the contract is from 3/15/99 through 3/14/00.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
V.P. Strategic Development
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Account Executive
▇▇▇-▇▇▇-▇▇▇▇ w
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
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▇▇▇▇.▇▇▇ brought to you by NBC