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EXHIBIT 10.27
[*] Confidential Treatment has been requested for certain portions of this
exhibit.
PROCUREMENT AND TRAFFICKING AGREEMENT
This PROCUREMENT AND TRAFFICKING AGREEMENT ("Agreement") is entered into
this 24 day of September, 1998 by and between DoubleClick Inc., a Delaware
corporation ("DoubleClick") having its principal place of business at ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, and ▇▇▇▇▇▇▇▇▇.▇▇▇ inc., a Delaware
corporation ("Company") having its principal place of business at ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and is made in connection
with the following:
WHEREAS, Company is in the business of, among other things, the
operation and maintenance of a site on the World Wide Web having the URL of
▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇ (the "Web Site") for the purposes of providing online
information and related data to prospective purchasers of new and used
automobiles and facilitating the purchase and sale thereof through a network of
subscribing dealers;
WHEREAS, DoubleClick is in the business of, among other things,
delivering advertising to pages of a customer's Web site based on certain
predetermined criteria; and
WHEREAS, Company desires to retain DoubleClick to deliver advertising to
Pages (as defined below) of the Web Site and DoubleClick desires to accept such
engagement subject to the terms and conditions as set forth below;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties agree as follows:
1. DEFINITIONS
All terms used in this Agreement shall bear the meaning as such terms
are defined in Paragraph 11 of the Standard Terms and Conditions
attached hereto, marked EXHIBIT A and incorporated herein by this
reference.
II. DESCRIPTION OF SERVICES
A. DoubleClick hereby agrees to link Pages to the Service and through
such Service, DoubleClick shall deliver Advertisers' Advertising to
users accessing Pages. DoubleClick and Company shall mutually agree
upon the number and type of Pages to be linked to the Service. It
is understood and agreed that all unsold inventory on Company's
Pages shall be made available for delivery of Direct Advertising.
B. During the Term (as defined below), the Company shall not place, or
permit the placement or delivery of, any Advertising on the Web
Site except through DoubleClick or DoubleClick's authorized
representatives, licensees and assigns which shall be Company's
sole and exclusive representative for the placement and delivery of
all Advertising on the Web Site. For clarity, the parties
acknowledge that the Company may, from time to time, enter into a
co-branded content or syndicated content relationship with a third
party ("Product
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[*] Confidential Treatment Requested
Marketing Partner"); it being understood that no such arrangement
will be bundled with the delivery of Advertisements of a Product
Marketing Partner to the Web Site. If such arrangement provides
that the co-branded or syndicated Pages of the Web Site will be
delivered to users by Company, then all Advertising (if any) on
such Pages shall be placed and delivered by DoubleClick, and
neither Company nor its Product Marketing Partner shall be
permitted to place or deliver, or permit the placement or delivery
of, any Advertising to such Pages. However, if such arrangement
provides that such co-branded or syndicated Pages of the Web Site
will be delivered to users by the Product Marketing Partner from
its own server, then the parties agree that, notwithstanding the
foregoing, the Company shall be permitted to allow a Product
Marketing Partner to place and deliver Advertising for such Pages
only.
C. Notwithstanding the foregoing paragraph, DoubleClick acknowledges
and agrees that Company may develop and launch, from time to time
during the Term of this Agreement, an additional page or pages to
the Web Site for the purposes of, among other things, joint or
cooperative advertising or promotion of products and services of
the Company or other third parties. DoubleClick further
acknowledges that such additional page or pages shall not be
subject to this Agreement and that any and all such advertising
shall be placed exclusively by the Company from its own facility.
D. Company reserves the right, at its sole discretion, to withhold up
to a maximum of [*] of the total advertising spot inventory
available on the Web Site (the "Reserved Inventory") for the
purposes of placing Advertisements by or through Company on behalf
of third parties as a result of a barter, exchange of services or
other non-monetary arrangements entered into between Company and
such third parties. Company agrees to use its reasonable best
efforts to provide notice to DoubleClick of any such intended use
of the Reserved Inventory prior to the placement of any such
Advertising.
i. Company agrees that it shall designate specific pages within
the Web Site wherein such advertisements as a result of a
barter, exchange of services of other non-monetary
arrangements shall be placed.
ii. Company agrees that any and all advertisements placed within
the Reserved Inventory as a result of a barter, exchange of
services or other non-monetary arrangements shall be placed
and delivered by DoubleClick at the rate of [*] per thousand
(the "Serving Fee"). Notwithstanding the foregoing,
DoubleClick agrees that in the event Company purchases "Dart
for Agencies" from DoubleClick, then DoubleClick shall waive
any and all Serving Fees due as a result of this Section II
(C).
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[*] Confidential Treatment Requested
iii. Company hereby authorizes DoubleClick to withhold from amounts
payable to Company pursuant to Section 4 of this Agreement, all
amounts due and owing from Company for Serving Fees Incurred
during the applicable billing period.
iv. DoubleClick agrees that in the event Company determined that
Serving Fees are not cost effective, Company may, upon fourteen
(14) days written notice to DoubleClick, "de-link" the Reserved
Inventory and place and deliver such advertisements on its own
behalf. Company agrees that it shall place and deliver all such
advertisements itself from its corporate facility, and shall not
engage the services of any third party for placement or delivery
of such advertisements.
V. DoubleClick further agrees that, in the event Company determines
that it requires additional Reserved Inventory, Company shall
provide fourteen (14) days written notice to DoubleClick, and
DoubleClick shall make available an additional [*] of unsold
Inventory to Company for the purposes of placing advertisement as
a result of a barter, exchange of services or other non-monetary
arrangements. Company agrees that such additional [*] of Reserved
Inventory shall be made available to Company on an "as-needed"
basis, and the Reserved Inventory shall revert to [*] of unsold
Inventory upon completion of the subject advertising flight.
E. DoubleClick shall promptly inform Company in the event that
DoubleClick enters into a Procurement and Trafficking Agreement
with an online automotive buying service including, but no
limited to the entities listed on Exhibit B (which list may be
amended by Company in writing from to time) to perform services
substantially similar to the services set forth in this
Agreement. Company shall have thirty (30) days upon receipt of
such notice to give written notice of its intent to terminate
this Agreement. The effective date of any such termination shall
be not less than thirty (30) days from DoubleClick's receipt of
Company's notice to terminate.
III TERM AND TERMINATION
A. The term (the "Term") of this Agreement shall commence on
September 24, 1998 and shall continue for a period of [*]
years or until such time that it is terminated by either party on
not less than one hundred and eighty (180) days prior written
notice to the other party; provided, however, that in no event
may this Agreement be terminated effective prior to the first
anniversary of such commencement date.
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[*] Confidential Treatment Requested
B. This Agreement may be terminated immediately by either party upon the
occurrence of any of the following events:
i. Upon the breach of any material term of this Agreement which
remains uncured for thirty (30) days following written notice to
the breaching party; or
ii. In the event the other party suffers any insolvency proceeding,
either voluntary or involuntary, that is not dismissed within
sixty (60) days following filing, or is adjudicated bankrupt or
makes any assignment for the benefit of creditors. Such
termination shall not relieve the party in proceedings from
liability for the performance of its obligations arising prior to
such termination and shall be in addition to all other rights and
remedies the terminating party may have available to it under
this Agreement at law or in equity.
IV. COMPENSATION/PAYMENT
A. With respect to the placement and delivery of Advertising (other than
Direct Advertising), DoubleClick shall pay Company, and Company agrees
to accept the following:
TOTAL IMPRESSIONS IN A CALENDAR MONTH PERCENTAGE OF NET REVENUES GENERATED FROM
ADVERTISING DELIVERED THROUGH THE SERVICE
TO THE PAGES
--------------------------------------------------------------------------------------------
[*] [*]
[*] [*]
[*] [*]
B. DoubleClick shall pay Company within five (5) days of DoubleClick's
Day's Sales Outstanding (as defined herein) following the end of the
month in which Advertisers' Advertising is delivered to Pages. For
purposes of calculating Impressions (defined in Section II of the
General Terms and Conditions) under this Section IV.A., no more than
one Advertisement shall be deemed to be on the user's screen at any
one time.
C. With respect to the placement and delivery of Direct Advertising,
DoubleClick shall pay Company and Company agrees to accept, the same
percentage payable to Company pursuant to Section III.A. hereof of the
DoubleClick Adjusted Commissions. Company acknowledges that the
DoubleClick Commissions are contingent on Completed Actions occurring
on Advertisers' Web Sites. DoubleClick shall pay this compensation
within sixty-five (65) days of each Completed Action.
D. Company shall be solely responsible for any costs or expenses it
incurs in connection with the Service or performance of its
obligations under this Agreement including, without limitation,
expenses associated with any HTML programming and linking Pages to the
Service.
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E. Notwithstanding anything to the contrary contained herein, in the
event Company terminates this Agreement in accordance with Section II
above and DoubleClick, prior to said termination, has entered into
agreements with Advertisers ("Advertiser Contracts") for the delivery
of Advertising to the Pages, the duration of which Advertiser
Contracts extend beyond the date on which this Agreement has been
terminated by Company, and Company or a third party (other than
DoubleClick) continues to deliver said Advertising after the
termination of this Agreement, then notwithstanding the fact that
DoubleClick does not deliver said Advertising after the termination of
this Agreement, DoubleClick shall be entitled to receive twenty-five
percent of the revenues derived from the continued delivery of said
Advertising by Company or such third party as consideration for
DoubleClick's solicitation and procurement of said Advertiser.
V. COMPANY OBLIGATIONS AND RIGHTS
A. Company agrees to effect all necessary HTML programming with respect
to the Web Site and Pages in accordance with the HTML modifications
(the "HTML Modifications") designated by DoubleClick so as to enable
DoubleClick to perform its obligations under this Agreement.
B. Spots must be within the first screen of a Page and otherwise conform
to the HTML Modifications unless otherwise agreed upon by Company and
DoubleClick.
C. Promptly after the execution of this Agreement, Company agrees to the
following:
(i) Include Advertising in rotation within one (1) of three (3)
advertising environments on the home page of the Web Site, which
shall rotate with promotional information displayed by the
Company. Due to the nature of display rotation, Company makes no
guaranty that Advertising will always be displayed in one of the
advertising environments. DoubleClick further acknowledges that
such advertising environments are presently 112x82 pixels in
size, and that Company reserves the right to change the size
and/or number of such advertising environments at its sole
discretion.
(ii) At the discretion of the Company, Include frames, I-frames or
layers on all Pages to permit delivery of enhanced creative;
(iii) At the discretion of the Company, allow for double Spots on
Pages.
(iv) Include a text link on the Web Site's home page and/or on
another heavily-trafficked Page on the Web Site to facilitate
advertiser inquiry and to direct any such inquiries to
DoubleClick.
(v) Reserve space for a full banner (468x60 pixels) Advertisement
within the top frame on the main channels of the Web Site which
are currently identified as tabs and as are more particularly
identified on the attached EXHIBIT C.
(vi) Reserve space for a full banner (468x60 pixels) Advertisement
within the top frame on subsequent Pages of the Web Site.
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D. Notwithstanding the foregoing, DoubleClick agrees that:
(i) No Advertising shall be placed on any Page within the
Web Site wherein the Company engages a customer in a
transaction (hereinafter, a "Transactional Page"). By
way of example but not by way of limitation, those Pages
wherein a Customer completes and submits a Purchase
Request, a request for vehicle financing, an insurance
quote request, or submits an inquiry regarding
after-market products or services shall be deemed to be
a Transactional Page.
(ii) No Advertising shall be placed on any content
integration Page wherein (1) the subject content is
owned by a third party content provider; or (2) Company
is in partnership with a third party for such content.
Notwithstanding the foregoing, Company agrees that in
the event any such third party consents to displaying
Advertising on any such Page, a commission or
compensation arrangement shall be entered into between
DoubleClick, the Company and such third party separate
and independent from this Agreement.
E. At such time, if ever, that DoubleClick is able to sell
sponsorship Advertising to an Advertiser for a designated area
on a Page which DoubleClick has determined is suitable and
appropriate for sponsorship Advertising, Company shall affect
all necessary HTML and technical modifications necessary to
accommodate said sponsorship Advertising.
F. Company will maintain its Pages and Web Site at a quality
standard that is no less than the standard that exists as of the
date of this Agreement and in a manner in keeping with the
quality of other web sites in the Service.
G. Company agrees that DoubleClick has no responsibility to review
the contents of Pages or the Web Site.
H. Company agrees that it shall not delink or remove more than five
percent (5%) of the Pages from the Service during any
consecutive thirty (30) day period without DoubleClick's prior
written consent.
I. Company shall have the right to ban and remove Advertising from
the Web Site, and to establish domain restrictions to prevent
delivery of Advertising linked to certain domains, by accessing
the Manage Site Application (located at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇).
DoubleClick shall use reasonable commercial efforts to prevent
the delivery of Advertising that advertises or promotes the
products and services listed on EXHIBIT C attached hereto or
otherwise poses a general conflict with the business of the
Company. (the "Prohibited Advertising"). By way of example, but
not by way of limitation, a "general conflict" shall be (i)
advertising for an online automotive buying service; (ii) the
creation of a link on the Web site to a site which provides
listings of used vehicles and/or sales of used vehicles directly
to consumers; (iii) establishing a direct link on the Web site
to an automobile manufacturer's buying service.
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VI. DOUBLECLICK OBLIGATIONS AND RIGHTS
A. DoubleClick shall have the right to refuse to include in the
Service, and to require Company to remove from the Service, any
Pages (including its contents) that DoubleClick determines do
not meet the standards of the Service or which do not comply
with the HTML Modifications, as DoubleClick deems reasonable and
necessary in its sole good faith discretion, or in the event of
any material change in the nature of the Web Site or the Page
from that set forth in Company's application.
B. Subject to the provisions of Section V (H) of this Agreement,
DoubleClick shall determine in its sole discretion which
Advertisers shall have access to the Service.
C. Company acknowledges and agrees that promotion of the Service is
critical to enhance usage by Advertisers and in connection
therewith Company agrees that (i) DoubleClick shall have the
right to use Company's name and Pages in advertising and
promoting the Service in any media now or hereafter known and
(ii) Company shall, upon DoubleClick's reasonable request,
supply DoubleClick with a reasonable amount of Company's
promotional materials so as to facilitate DoubleClick's sales
efforts to prospective Advertisers.
D. DoubleClick shall have the right to use for DoubleClick's own
use or for use in connection with potential Advertisers on the
Service, information concerning Pages, Impressions and users
accessing Pages obtained through the Service, provided
DoubleClick does not reproduce any Pages without Company's prior
consent and DoubleClick shall not disclose to any third party
any such current information specifically pertaining to such
users.
E. DoubleClick will make site reports available to Company through
DoubleClick's web site (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇) listing the number
of Impressions and click-over rates by Page.
F. It is understood and agreed that DoubleClick shall determine the
rate card (and any applicable discount) charged to said
Advertisers for delivery of Advertising. It is further
understood and agreed that DoubleClick shall have the right, in
its sole discretion, to provide Advertisers with bonus
Impressions free of charge.
G. At the beginning of each calendar quarter, DoubleClick shall
furnish to Company a list of those suppliers of automotive
products and services that are among DoubleClick's top prospects
for the purchase of Advertising (including sponsorships) on the
Web Site. Company agrees, promptly following receipt of such
notice or otherwise upon DoubleClick's request, to share with
DoubleClick all discussions or arrangements (in each case, both
pending or past) between Company and such entities that would be
relevant to DoubleClick's discussions with such entities.
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IN WITNESS WHEREOF, the Parties have entered into this Agreement, effective as
of the date first written above.
DOUBLECLICK COMPANY
DOUBLECLICK, INC. ▇▇▇▇▇▇▇▇▇.▇▇▇
By: /s/ [ILLEGIBLE] By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------- --------------------------------
(Signature) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Senior Vice President, Marketing
[ILLEGIBLE] ▇▇▇▇▇▇▇▇▇.▇▇▇ inc.
-------------------------------
(Printed/Typed Name)
VP Business Development
-------------------------------
(Official Title)
9/24/98
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EXHIBIT A
STANDARD TERMS AND CONDITIONS
1. No Assignment. Neither party to this Agreement shall sell, transfer or
assign this Agreement or the rights or obligations hereunder, other than to
a parent or whollyowned subsidiary, without the prior written consent of the
other party. Notwithstanding the foregoing, either party shall have the
right to transfer or assign this Agreement to a third party
successor-in-interest, which for the purposes of this Section shall mean any
third party which acquires all or substantially all of the assets of either
party, or more than 75% of the outstanding stock of such party, whether by
sale, consolidation, merger or otherwise. Any act in derogation of the
foregoing shall be null and void.
2. Proprietary Rights. Company understands and agrees that Company shall not
have, nor will it claim, any right, title or interest in and to any
Advertising (other than its own Advertising), the Service or any elements
thereof (including, without limitation, the grant of a license in or to the
Service or any software, source codes, modifications, updates and
enhancements thereof or any other aspect of the Service), the name
"DoubleClick" or any derivatives thereof, or any other trademarks and logos
which are owned or controlled by DoubleClick and made available to Company
through the Service or otherwise.
3. Representation and Indemnity. Company warrants and represents at all times
that Company (i) owns the Web Site, (ii) has the right and full power and
authority to enter into this Agreement, to grant the rights herein granted
and fully to perform its obligations hereunder, (iii) owns and/or has the
right to use all materials contained on the Web Site or Pages, including,
without limitation, all copyrights, trademarks and other proprietary rights
in and to such materials, and (iv) has secured the requisite permission to
use any person's name, voice, likeness and performance as embodied in such
materials, or any other element contained in said material. In furtherance
of the foregoing, Company agrees to indemnify and hold DoubleClick and the
Advertisers harmless from and against any and all claims, actions, losses,
damages, liability, costs and expenses (including reasonable attorneys'
fees) arising out of or in connection with (i) the breach of any
representation, warranty or agreement made by Company hereunder and/or (ii)
the Web Site or Pages, including, without limitation, claims for
infringement of copyright or other intellectual property rights and
violation of rights of privacy or publicity. DoubleClick shall promptly
notify Company of all claims and proceedings related thereto of which
DoubleClick becomes aware. DoubleClick warrants and represents at all times
that DoubleClick owns the Service and that such Service will not infringe
upon or conflict with the copyright held by any third party. In furtherance
of the foregoing, DoubleClick shall indemnify, defend and hold Company
harmless from and against any and all claims, actions, losses, damages.
liabilities, costs and expenses (including reasonable attorneys' fees)
resulting from or arising out of or in connection with any breach of the
foregoing representations and warranties. Company shall promptly notify
DoubleClick of all claims and proceedings related thereto of which Company
becomes aware.
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4. No Warranties/Liabilities. EXCEPT AS EXPRESSLY PROVIDED ABOVE, NEITHER PARTY
MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS OF THE SERVICE OR THE WEB
SITE FOR A PARTICULAR PURPOSE INCLUDING, WITHOUT LIMITATION, THE TYPE OF
ADVERTISING OR AMOUNT OF ADVERTISING WHICH WILL BE DELIVERED TO PAGES
THROUGH THE SERVICE. DOUBLECLICK SHALL NOT BE LIABLE FOR ANY ADVERTISERS
WHOSE ADVERTISING APPEARS ON THE SERVICE, NOR THE CONTENTS OF ANY
ADVERTISING, NOR SHALL DOUBLECLICK BE LIABLE FOR ANY LOSS, COST, DAMAGE OR
EXPENSE (INCLUDING COUNSEL FEES) INCURRED BY COMPANY IN CONNECTION WITH
COMPANY'S PARTICIPATION IN THE SERVICE. NEITHER PARTY SHALL BE LIABLE TO THE
OTHER PARTY FOR ANY TECHNICAL MALFUNCTION, COMPUTER ERROR OR LOSS OF DATA OR
OTHER INJURY, DAMAGE OR DISRUPTION TO COMPANY'S PAGES OR WEB SITE OR THE
SERVICE. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY
INDIRECT, INCIDENTAL OR CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING
OUT OF OR IN RELATION TO THIS AGREEMENT.
5. Confidentialitv. Any information relating to or disclosed in the course of
this Agreement by either party (the "Disclosing Party") to the other party
(the "Receiving Party"), which is or should be reasonably understood to be
confidential or proprietary to the Disclosing Party, including but not
limited to, the material terms of this Agreement, information about the
Service and technical processes and formulas, source code, product designs,
sales, cost and other unpublished financial information, product and
business plans, projections, and marketing data shall be deemed
"Confidential Information" and shall not be used, disclosed or reproduced by
the Receiving Party without the Disclosing Party's prior written consent.
"Confidential Information" shall not include information (a) already
lawfully known to or independently developed by the Receiving Party, (b)
disclosed in published materials, (c) generally known to the public, (d)
lawfully obtained from any third party, or (e) required to be disclosed by
law.
6. Breach. Either party shall have the right to immediately terminate this
Agreement in the event the other party commits a material breach of this
Agreement and such breach is not cured by the breaching party within thirty
(30) days of its receipt of notice of such breach from the non breaching
party.
7. Independent parties. Notwithstanding any provision hereof, for the purpose
of this Agreement each party shall be and act as an independent contractor
and not as an employee, partner, joint venturer, or agent of the other and
shall not bind nor attempt to bind the other to any contract.
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8. No Modification. This Agreement, including the Standard Terms and
Conditions, represents the entire understanding between DoubleClick and
Company regarding DoubleClick's services and supersedes all prior
agreements. No waiver, modification or addition to this Agreement shall be
valid unless in writing and signed by the parties to this Agreement.
Notwithstanding the foregoing, Doubleclick shall have the right to modify or
make additions to the placement algorithm governing Advertising delivery,
and the HTML Modifications, from time to time upon reasonable prior notice
to Company.
9. Severability. If any provision of this Agreement shall be adjudicated by any
court of competent jurisdiction to be unenforceable or invalid, that
provision shall be limited or eliminated to the minimum extent necessary so
that this Agreement shall otherwise remain in full force and effect and the
other provisions shall be unaffected.
1O. Applicable Law. This Agreement shall be governed by and construed in
accordance with the substantive laws of the State of New York and Company
agrees that jurisdiction and venue of all matters relating to this Agreement
shall be vested exclusively in the federal, state or local courts within the
State of New York.
11. Definitions. The following terms, as used in the Agreement, shall have the
following meanings:
a. "ADVERTISER" is defined as a company, entity or individual, which provides
Advertising to DoubleClick for distribution through the Service.
b. "ADVERTISER'S WEB SITE" is defined as the web site linked to Direct
Advertising and where a Completed Action occurs.
c. "ADVERTISING" OR "ADVERTISEMENT" is defined as third party materials
including two "banners", "pop-up windows", "buttons", "roadblocks",
"tickers". "intermercials". "incentives" and any other forms of
advertisements and their contents, including sponsorships of any type or
form.
d. "COMPLETED ACTION" is defined as users' activities, as determined by
DoubleClick in its sole discretion, after clicking through on Direct
Advertising, which actions may include, but not be limited to users (i)
completing a form or survey, (ii) making a purchase; (iii) downloading
materials; or (iv) performing a click or multiple clicks within Advertiser's
Web Site.
e. "DAY'S SALES OUTSTANDING" shall be the average number of days it takes
DoubleClick to collect its Net Accounts Receivable (as defined herein) from
Advertisers and which shall be calculated as follows: DoubleClick's
account's receivable balance from the immediately preceding semi-annual
accounting period (calculated on a calendar year basis) after adjustment for
any reserve for doubtful accounts and deferred or unbilled revenue ("Net
Accounts Receivable") shall be divided by the average daily revenue
recognized by DoubleClick for the last two months of such semiannual
accounting period. DoubleClick's Day's Sales Outstanding shall be calculated
following the end of
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each semi-annual accounting period and shall be used in determining the date
of payment for amounts due to Company for Advertising which is delivered to
Pages in each of the months comprising the ensuing semi-annual accounting
period.
f. "DIRECT ADVERTISING" OR A "DIRECT ADVERTISEMENT" is defined as an
advertisement and its contents on which users can click-through to an
Advertiser's Web Site to perform a Completed Action.
g. "DOUBLECLICK COMMISSIONS" is defined as monies payable to DoubleClick from
an Advertiser as a result of a Completed Action.
h. "DOUBLECLICK ADJUSTED COMMISSIONS" is defined as the DoubleClick Commission
less (i) a bad debt and marketing allowance of three percent (3%) and (ii)
broker and agent fees payable by DoubleClick with respect to the Advertiser.
i "IMPRESSION" is defined as occurring each time Advertising (whether a full
banner (468 by 60 pixels) or half banner (234 by 60 pixels)) appears on a
Page resulting from a user accessing or visiting such Page.
j. "NET REVENUES" is defined as the gross ▇▇▇▇▇▇▇▇ earned from Advertisers by
DoubleClick less (i) rate card and volume discounts and agency commissions,
and (ii) a bad debt allowance of 1% of said gross ▇▇▇▇▇▇▇▇.
k. "PAGE" is defined as a page in the Web Site designated by Company to be
linked to the Service and is accepted and approved by DoubleClick.
1. "PAID ADVERTISING" or "Paid Advertisement" is defined as any Advertising
which is paid for by an Advertiser.
m. "SERVICE" is defined as the DoubleClick service that delivers Advertising to
any Page(s) of the Web Site in the following order and manner: For users
which match the criteria selected by an Advertiser from information
currently available to DoubleClick concerning users, a Paid Advertisement
from such Advertiser will appear. If no match occurs or a Paid Advertisement
is unavailable, a Direct Advertisement will appear, pursuant to the terms or
this Agreement. If no match occurs or a Direct Advertisement is unavailable,
Advertising promoting the Service and Advertising promoting charitable
causes and non-profit organizations (e.g. public service announcements) may
appear on Pages.
n. "SPOT" is defined as the specific place on a Page where Advertising may
appear through the Service.
0. "WEB SITE" is defined as the Company's web site referred to above.
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EXHIBIT B
CERTAIN ENTITIES
COMPANIES:
Auto By Internet
Auto Connect
AutoNation USA
AutoVantage
AutoWeb
CarPoint
▇▇▇▇.▇▇▇
CCC
Consumer Car Club
Consumer Car Sales
DealerNet
GM Buy Power
▇▇▇▇▇▇ Blue Book
Online Auto
Price Auto Outlet
▇▇▇▇▇▇▇▇▇.▇▇▇
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EXHIBIT C
PROHIBITED ADVERTISING
COMPANIES OR PRODUCTS SEGMENT CONFLICT ▇▇▇▇▇▇▇▇▇.▇▇▇ INC.
BUSINESS UNIT
Auto By Internet Competitor ▇▇▇.▇▇▇
Auto Connect Competitor ▇▇▇.▇▇▇
Auto Trader Online Competitor UCC
AutoNation USA Competitor UCC
AutoVantage Competitor ▇▇▇.▇▇▇
AutoWeb Competitor ▇▇▇.▇▇▇
CarMax Competitor UCC
CarPoint Competitor ▇▇▇.▇▇▇
▇▇▇▇▇▇▇▇▇.▇▇▇ Competitor ▇▇▇.▇▇▇
CarQwik Competitor ▇▇▇.▇▇▇
▇▇▇▇.▇▇▇ Competitor ▇▇▇.▇▇▇
CCC Auto Infomercial ▇▇▇.▇▇▇
Cendant Corp. (CUC) Auto Buying/CU Program ▇▇▇.▇▇▇
Consumer Car Club Competitor ▇▇▇.▇▇▇
Consumer Car Sales Competitor UCC
Consumer Reports Competitor ▇▇▇.▇▇▇
DealerNet Competitor ▇▇▇.▇▇▇
Drivers Mart Competitor UCC
Ford Pre-owned Competitor UCC
GM Buy Power Competitor ▇▇▇.▇▇▇
Hertz Car Sales Competitor UCC
▇▇▇▇▇▇ Blue Book Competitor ▇▇▇.▇▇▇
Mannheim Auto Auctions Competitor UCC
NetMarket Competitor ▇▇▇.▇▇▇
Online Auto Competitor ▇▇▇.▇▇▇
Other Warranty Programs ▇▇▇▇▇▇▇▇▇.▇▇▇ Platinum Plus ▇▇▇.▇▇▇
Price Auto Outlet Competitor UCC
▇▇▇▇▇▇▇▇▇.▇▇▇ Competitor UCC
Republic Industries Competitor ▇▇▇.▇▇▇
Toyota Certified Competitor UCC
World Wide Wheels Competitor ▇▇▇.▇▇▇
GENERAL COMPETITIVE MARKETS (THE KEY IS IF IT IS "AUTO" RELATED)
New Car Buying
Used Car Buying
Auto Insurance Services
Auto Loans/Financing
Auto Warranty Coverage
Auto Clubs
Auto Rewards Programs
In addition to the foregoing, any Advertising that advertises or promotes any
Web site displaying (i) sexually explicit content, (ii) gambling; or (iii)
distilled spirits shall be deemed to be Prohibited Advertising as used in this
Agreement.
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EXHIBIT D
MAIN CHANNELS OF WEB SITE
{GRAPHIC]
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