Exhibit 10.2
24/7 Media Inc. Network Affiliation Agreement,
dated September 9, 1999
24/7 MEDIA INC.
NETWORK AFFILIATION
AGREEMENT
WHEREAS, the undersigned (hereinafter the "Network Affiliate") is the
operator and owner of the Internet Web site(s) (the "Web Site") specified on the
signature pages hereto;
WHEREAS, 24/7 Media, Inc. ("24/7"), a Delaware corporation with an
address at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, operates a network of
Internet Web sites (the "24/7 Network") for which it solicits advertisers,
advertising agencies, buying services or others ("Advertisers") regarding the
placement of advertising banners and similar devices and sponsorships
("Advertising") for display on pages, screens, and other segments or spaces on
Web site reasonably suitable for the display of advertising and to which the
Tags (as defined in Section 2(A) below) can be affixed as provided herein (the
"Pages");
WHEREAS, Network Affiliate and 24/7 wish to include the Web Site in the
24/7 Network;
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and agreements contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, it is agreed as
follows:
1. AFFILIATION.
The Network Affiliate hereby grants to 24/7 the worldwide exclusive
right to sell all Advertising on the Web Site.
2. OBLIGATIONS OF 24/7.
In furtherance of the foregoing, 24/7 covenants and agrees:
A. to provide the Network Affiliate, during the term of this
Agreement (the "Term") and only for use in the performance of this Agreement,
with unique tags in HTML/Java or other appropriate languages (the "Tags") which
shall be affixed appropriately by Network Affiliate to the Web Site's Pages to
enable 24/7 to serve Advertising to those Pages;
B. to utilize its best efforts to sell to Advertisers Advertising
on the Web Site's Pages, (including sales of the Web Site as a single site,
through multi-site packages and through the 24/7 Network package, at such prices
as 24/7 shall deem appropriate);
C. to serve Advertising to the Web Site's Pages;
D. to provide the Network Affiliate with notice, via on-line
posting, of new Advertising that has been solicited by 24/7 to be displayed on
the Web Site's Pages, and to use its best efforts to honor any decision by
Network Affiliate to decline any Advertising, in accordance with the provisions
in 3(D) below;
E. to provide the Network Affiliate with real-time access to
records that will allow it to monitor the volume of paid Advertising delivered
to the Web Site's Pages and the revenue produced (subject to billing corrections
and adjustments) thereby; all such records, including data, statistical
information or other traffic analysis, produced or provided by 24/7 shall be the
joint property of 24/7 and Network Affiliate;
F. to deliver to the Network Affiliate a monthly statement
showing revenues earned by Network Affiliate during the calendar month and any
sum(s) due the Network Affiliate on account thereof pursuant to Section 4
hereof; and
G. to maintain suitable and qualified personnel in
administrative, sales and technical positions necessary for 24/7 to perform
effectively the terms of this Agreement.
3. OBLIGATIONS OF NETWORK AFFILIATE.
The Network Affiliate covenants and agrees:
A. to use its best efforts to continue and maintain the Web Site
and the Web Site's Pages in a manner consistent with the intent and purpose of
the Web Site;
B. to insert the Tags on each of the Web Site's Pages and only on
such Pages in such a manner as to assure that the Advertising to be affixed to
said Tag is fully and clearly visible on the first Web Site Page viewed when
that Page is viewed at a 640 x 480 pixel resolution;
C. to insert a button with the 24/7 logo on the Web Site's Home
Page directing potential advertisers to the 24/7 web site.
D. to notify 24/7 within one business day from the time of notice
of any new Advertising is given of the Network Affiliate's rejection of any new
Advertising. Failure to provide timely notice of rejection of the new
Advertising shall be deemed acceptance thereof, until such time as Network
Affiliate notifies 24/7 of Network Affiliate's rejection thereof at which time
24/7 will use its best efforts to remove the Advertising;
E. to furnish 24/7 with all subscribership, viewership,
inventory, and usage reports, reviews and audience studies, deliveries, census
requirements, and any other information regarding the Web Site and the Web
Site's Pages as is reasonably available to the Network Affiliate and appropriate
for use by 24/7 for the sale of Advertising; and
F. not to engage, contract with, license or permit any person,
firm or entity (including the Network Affiliate and its employees) other than
24/7 and its employees to sell, or represent the Network Affiliate for the sale
of, Advertising on the Web Site and to refer all advertising inquiries to 24/7.
4. PAYMENTS.
A. Advertisers shall be directed to pay all cash and other
consideration generated from the sale of Advertising by 24/7 during the term
of this Agreement and for a period of six months following the termination of
this Agreement (except for sponsorships, with respect to which payments shall
be made to 24/7 and a percentage shall be retained by 24/7 for the duration
of the sponsorship regardless of the date of termination of this Agreement).
24/7 shall retain a percentage of such Payment (reduced by those advertising
agency commissions actually retained by agencies or paid by 24/7 to agencies)
with respect to the sale of Advertising on the Web Site in accordance with
the following chart, and shall pay to the Network Affiliate the remainder of
the Payment received by 24/7 for the sale of Advertising on the Web:
Number of Impressions Percentage Retained by 24/7
Delivered in Preceding Month for Current Month
------------------------------------------------ -------------------------------------------
999,999 to 2,000,000 50%
2,000,000 to 2,999,999 45%
3,000,000 to 4,999,999 40%
5,000,000 to 14,999,999 35%
15,000,000+ 30%
Network Affiliate represents and warrants that the number of impressions served
in the month preceding the Effective Date was _____________, and thus, subject
to verification of monthly ad impressions, the initial percentage to be retained
by 24/7 is _____%. The percentage retained by 24/7 shall be lowered effective
upon Network Affiliate's notifying 24/7 that the number of impressions delivered
in the preceding month requires the percentage retain to be adjusted.
B. The Network Affiliate may elect to have 24/7 serve promotional or
barter advertisements not sold by 24/7, for which Network Affiliate will pay
24/7 a serving fee of $2.50 cost per thousand ("CPM"); such promotional and
barter advertisements shall not exceed thirty percent (30%) of the Pages.
C. In the event any Advertiser remits any payment for Advertising
sold by 24/7 directly to the Network Affiliate rather than to 24/7, the Network
Affiliate agrees to make prompt payment to 24/7 of any and all such payments.
D. Network Affiliate will be obligated to compensate 24/7 on any
business contracted by 24/7 Media prior to termination date.
E. Network Affiliate acknowledges that 24/7 has an ownership
interest in the "▇▇▇▇▇▇▇▇▇▇.▇▇▇" e-commerce service (the "Service") and that the
Service includes the placement of banners on the 24/7 Network, generally on a
"cost per transaction" basis and on terms no more favorable to ▇▇▇▇▇▇▇▇▇▇.▇▇▇
than would be made available to a party not affiliated with 24/7.
F. Network Affiliate also acknowledges that 24/7 owns and
operates the Profilz database of demographic profiles (the "Database "). Network
Affiliates understands and agrees that the Payment in respect of Advertising
sold that employs the Database shall be calculated by subtracting from gross
revenue a fee for use of the Database, which fee shall be disclosed to Network
Affiliate prior to implementation and shall reasonably reflect 24/7's cost of
developing and operating the Database. Network Affiliate shall have the option
not to accept Advertising that employs the Database.
5. INTELLECTUAL PROPERTY. All hardware, software, programs, codes, trade
names, technology, intellectual property, licenses, patents, trademarks,
copyrights, trade secrets, know-how, and processes (collectively, the "24/7
Technology") used by 24/7 under this Agreement shall remain the sole property of
24/7. Network Affiliate shall have no rights, title or interest in the 24/7
Technology. All hardware, software, programs, codes, trade names, technology,
intellectual property, licenses, patents, trademarks, copyrights, trade secrets,
know-how, and processes (collectively, the "Network Affiliate Technology") used
by Network Affiliate under this Agreement shall remain the sole property of
Network Affiliate. 24/7 shall have no rights, title or interest in the Network
Affiliate Technology. Upon the expiration or termination of this Agreement, each
party shall promptly return all information, documents, manuals and other
materials belonging to the other party except as otherwise provided in this
Agreement.
6. CONFIDENTIALITY. 24/7 and Network Affiliate covenant to each other that
neither party shall disclose to any third party (other than its employees and
directors, in their capacity as such, and the employees and directors of any
affiliate on a need to know basis so long as they are bound by the terms of this
Agreement) any information regarding the terms and provisions of this Agreement
or any non-public confidential information which has been identified as such by
the other Party hereto except (i) to the extent necessary to comply with any law
or valid order of a court of competent jurisdiction (or any regulatory or
administrative tribunal), in which event the party so complying shall so notify
the others as promptly as practicable (and, if possible, prior to making any
disclosure) and shall seek confidential treatment of such information, if
available; (ii) as part of its normal reporting or review procedure to its
auditors or its attorneys, as the case may be, so long as they are notified of
the provisions of this Agreement; (iii) in order to enforce its rights pursuant
to this Agreement; (iv) in connection with any filing with any governmental body
or as otherwise required by law, including the federal securities laws and any
applicable rules and regulations of any stock exchange or quotation system; and
(v) in a confidential disclosure made in connection with a contemplated
financing, merger, consolidation or sale of capital stock of 24/7 or the Network
Affiliate. Information which is or should be reasonably understood to be
confidential or proprietary includes, but is not limited to, information about
the 24/7 Network, sales, cost and other unpublished financial information,
product and business plans, projections, marketing data, and sponsors but shall
not include information (a) already lawfully known to or independently developed
by a 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.
7. TERM.
A. The term of this Agreement (the "Term") shall commence on the
Effective Date and shall continue for at least one year from the Effective
Date. Either party may terminate the Agreement by giving notice no earlier
than eight months after the Effective Date. Termination will be effective
four (4) months after the date on which written notice is given, as
determined under the provisions of Section 13 below, to the other party.
B. Notwithstanding Section A. above, this Agreement may be terminated
by either party on 60 days' prior written notice to the other party upon the
occurrence of a material breach by the other party of any covenant, duty or
undertaking herein, which material breach continues without cure for a period
of 30 days after written notice of such breach from the non-breaching party
to the breaching party.
C. Notwithstanding Section A. or B. above, this Agreement may be
terminated by 24/7 on written notice to the Network Affiliate upon the
occurrence of a material breach by Network Affiliate of its covenants under
Section 8 of this Agreement, which material breach continues without cure for
a period of more than 48 hours after written notice of such breach from 24/7
to Network Affiliate of such breach, or which material breach occurs on more
than two occasions.
D. Notwithstanding Section A. or B. above, this Agreement may be
terminated by 24/7 on 30 days' prior written notice to the Network Affiliate
if the number of Pages in any three consecutive months is less than one
million or if the average click through rate for any three-month period is
less than 0.25%.
8. CONTENT OF WEB SITE. Network Affiliate covenants and agrees not to
include or provide via the Web Site or the Web Site's Pages any material that is
or may be considered: (i) libelous, pornographic, obscene, or defamatory under
any federal or state law; (ii) an infringement of any third party's intellectual
property rights (including copyright, patent, trademark, trade secret or other
proprietary rights); or (iii) an infringement on any third party's rights of
publicity or privacy. Network Affiliate further covenants and agrees, with
respect to the operation of its Web Site and its Pages, to comply with all laws,
statutes, ordinances, and regulations.
9. INDEMNIFICATION. Network Affiliate shall indemnify and hold harmless
24/7, its advertisers and other suppliers and any related third parties, against
and in respect of any and all third party claims, suits, actions, proceedings
(formal and informal), investigations, judgments, deficiencies, damages,
settlements, liabilities, and legal and other expenses (including reasonable
legal fees and expenses of attorneys chosen by 24/7) as and when incurred,
arising out of or based upon any act or omission or alleged act or alleged
omission by Network Affiliate in connection with the acceptance of, or the
performance or non-performance by Network Affiliate of, any of its duties under
this Agreement or arising from the breach by Network Affiliate of its
warranties, representations or covenants contained in this Agreement. 24/7 shall
indemnify and hold harmless the Network Affiliate, against and in respect of any
and all third party claims, suits, actions, proceedings (formal and informal),
investigations, judgments, deficiencies, damages, settlements, liabilities, and
legal and other expenses (including reasonable legal fees and expenses of
attorneys chosen by Network Affiliate) as and when incurred, arising out of or
based upon any act or omission or alleged act or alleged omission by 24/7 in
connection with the acceptance of, or the performance or non-performance by 24/7
of, any of its duties under this Agreement or arising from the breach by 24/7 of
its warranties, representations or covenants contained in this Agreement.
10. NO POACHING. Network Affiliate agrees that, during the Term and for a
period of one year from the end of the Term, neither it nor its affiliates will
solicit or recruit the services of any 24/7 employees, or hire any such
employees.
11. NO WAIVER. This Agreement shall not be waived, modified, assigned or
transferred except by a written consent to that effect signed by Network
Affiliate and 24/7. Network Affiliate agrees that if it assigns or transfers
this Agreement, it shall cause such successor, assignee, or transferee to assume
all of the Network Affiliate's obligations hereunder. Any assignment, transfer,
or assumption shall not relieve the Network Affiliate of liability hereunder.
12. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and performed therein, without regard to principles of conflicts of laws.
13. NOTICES. All notices required or permitted to be given hereunder shall
be in writing and either hand-delivered, telecopied, mailed by certified first
class mail, postage prepaid, or sent via electronic mail to the other party or
parties hereto at the address(es) set forth below. A notice shall be deemed
given when delivered personally, when the telecopied notice is transmitted by
the sender, three business days after mailing by certified first class mail, or
on the delivery date if delivered by electronic mail.
14. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
supersedes all prior agreements of the Parties with respect to the transactions
set forth herein and, except as otherwise expressly provided herein, is not
intended to confer upon any other person any rights or remedies hereunder.
15. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which together shall constitute one
and the same document.
16. FORCE MAJEURE. Neither party shall be held liable or responsible to the
other party nor be deemed to have defaulted under or breached this Agreement for
failure or delay in fulfilling or performing any term of this Agreement when
such failure or delay is caused by or results from causes beyond the reasonable
control of the affected party, including but not limited to fire, floods,
failure of communications systems or networks, embargoes, war, acts of war
(whether war is declared or not), insurrections, riots, civil commotion,
strikes, lockouts or other labor disturbances, acts of God or acts, omissions or
delays in acting by any governmental authority or the other party; provided,
however, that the party so affected shall use reasonable commercial efforts to
avoid or remove such causes of nonperformance, and shall continue performance
hereunder with reasonable dispatch whenever such causes are removed. Either
party shall provide the other party with prompt written notice of any delay or
failure to perform that occurs by reason of force majeure. The parties shall
mutually seek a resolution of the delay or the failure to perform as noted
above.
17. SEVERABILITY. Should one or more provisions of this Agreement be or
become invalid, the parties hereto shall substitute, by mutual consent, valid
provisions for such invalid provisions which valid provisions in their economic
effect are sufficiently similar to the invalid provisions that it can be
reasonably assumed that the parties would have entered into this Agreement with
such valid provisions. In case such valid provisions cannot be agreed upon, the
invalidity of one or several provisions of this Agreement shall not affect the
validity of this Agreement as a whole, unless the invalid provisions are of such
essential importance to this Agreement that it is to be reasonably assumed that
the parties would not have entered into this Agreement without the invalid
provisions.
18. DISPUTE RESOLUTION. Any controversy or claim arising out of or relating
to the Agreement, or the breach thereof, shall be settled exclusively by
arbitration. Such arbitration shall be conducted before a single arbitrator in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association then in effect. If arbitration is commenced by 24/7, it shall take
place in the city in the continental United States in which the principal U.S.A.
corporate offices of Network Affiliate are located. If Network Affiliate has no
corporate offices in the U.S.A. or if arbitration is commenced by Network
Affiliate, then arbitration shall take place in New York, New York. Judgment may
be entered on the arbitrator's award in any court having jurisdiction, and the
parties irrevocably consent to the jurisdiction of such courts for that purpose.
The parties waive personal service in connection with any such arbitration; any
process or other papers under this provision may be served outside the home
state of Network Affiliate or New York by registered mail, return receipt
requested, or by personal service, provided a reasonable time for appearance or
response is allowed. All decisions of the arbitrator shall be final and binding
on the parties. The parties shall equally divide all costs of the American
Arbitration Association and the arbitrator. Each party shall bear its own legal
fees in any dispute. The arbitrator may grant injunctive or other relief.
19. INDEPENDENT CONTRACTORS. 24/7 Media and Network Affiliate shall each
act as independent contractors. Neither party shall exercise control over the
activities and operations of the other party. 24/7 Media and Network Affiliate
shall each conduct all of its business in its own name and as it deems fit,
provided it is not in derogation of the other's interests. Neither party shall
engage in any conduct inconsistent with its status as an independent contractor,
have authority to bind the other with respect to any agreement or other
commitment with any third party, nor enter into any commitment on behalf of the
other, except as expressly provided for by this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement this
___ day of ____________________, 1999 (the "Effective Date").
24/7 MEDIA, INC.
By: __________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director, Business Development
E-mail address: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇________
NETWORK AFFILIATE:
Name of Web Site: _______________________________
Web Site URL: _______________________________
Corporate Name of Web Site owner: _______________________________
Address: _______________________________
Address: _______________________________
By: _______________________________
Name:
Title:
E-mail address: _______________________________