CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 10.22
PROCUREMENT AND TRAFFICKING AGREEMENT
Company: Endeavor Technologies Inc.
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Address: 400 The Lenox Building
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Web Site URL: ▇▇▇.▇▇▇-▇▇.▇▇▇
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This Agreement when executed by the above named company ("Company"), and
DoubleClick Inc. ("DoubleClick"), will constitute a valid and binding agreement
between Company and DoubleClick according to the specific terms and conditions
set forth below and those terms and conditions set forth in the Standard Terms
and Conditions. All terms not otherwise defined below shall be as defined in the
Standard Terms and Conditions.
I. DESCRIPTION OF SERVICES
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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 the Company's
sole and exclusive representative for the placement and delivery of
all Advertising on the Web Site. If, however, the specified
representative from National Jewish sells an advertisement within the
WebMD Site, DoubleClick shall allow the sale of that ad and will not
have any obligation to with regards to the placement of the campaign.
The revenue share for this advertisement will be allocated as follows:
***National Jewish, *** Endeavor Technologies and *** DoubleClick. At
no point during the term of this contract may the revenue secured from
such transactions exceed gross revenue of $***.
II. TERM
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A. The term (the "Term") of this Agreement shall commence on June 15,
1998 and shall continue until such time that it is terminated by
either party on not less than
___________________
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
ninety (90) days prior written notice to the other party, provided,
however, that in no event may this Agreement be terminated effective
prior to the expiration of one (1) year from the commencement of the
Term.
III. COMPENSATION/PAYMENT
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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 percentage of the Net Revenues, which
percentage shall be based on the number of Impressions delivered per
month:
Impression Level Company's Share of Net Revenues
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*** ***
*** ***
*** ***
Company's share of Net Revenues for each month shall be based on the
number of Impressions delivered for that month. DoubleClick shall pay
Company within *** following the end of the month in which
Advertisers' Advertising is delivered to Pages.
B. 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 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 to
Company within *** following the end of the month in which Completed
Actions occur.
C. 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.
D. 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
________________________
** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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Agreement, DoubleClick shall be entitled to receive ***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.
IV. COMPANY OBLIGATIONS AND RIGHTS
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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 (i)
place a link on the Web Site's home page to DoubleClick's web site for
potential advertisers to learn how they can place Advertising on the
Web Site; (ii) include text on the Pages beneath each Spot saying
"click here"; (iii) include frames, I-frames or layers on all Pages to
permit delivery of enhanced creative; (iv) allow for double Spots on a
majority of the Pages, as mutually agreed between the parties, unless
frames are used for delivery of enhanced creative; and (v) include a
120 x 60 button on the Web Site's home page and/or on another heavily
trafficked Page on the Web Site for the sale of Advertising and/or
collection of user demographic profiles.
D. 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.
E. 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.
F. Company agrees that DoubleClick has no responsibility to review the
contents of Pages or the Web Site.
G. 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.
_________________________
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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H. 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 ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇).
V. DOUBLECLICK OBLIGATIONS AND RIGHTS
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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. 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 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. DoubleClick agrees to actively promote the Web Site to the advertising
community through DoubleClick's standard marketing materials and press
releases and in a manner that is substantially similar to the manner
in which DoubleClick promotes comparable web sites that are part of
the Service.
G. 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.
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DOUBLECLICK INC. COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Signature) (Signature)
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(Printed/Typed Name) (Print/Typed Name)
CFO CEO
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(Official Title) (Official Title)
Dated: 6/16/98
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STANDARD TERMS AND CONDITIONS
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1. No Assignment. Neither party to this Agreement shall sell,
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transfer or assign this Agreement or the rights or obligations hereunder, other
than to a parent or wholly-owned 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
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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 Indenmity. Company warrants and represents at
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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.
4. No Warranties/Liabilities. EXCEPT AS EXPRESSLY PROVIDED ABOVE,
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NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED,
INCLUDING ANY IMPLIED WARRANTY OF
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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. Confidentiality. Any information relating to or disclosed in the
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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
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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. Miscellaneous. Notwithstanding any provision hereof, for the
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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.
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.
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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.
8. Applicable Law. This Agreement shall be governed by and construed
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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.
9. Definitions. "Advertiser" is defined as a company, entity or
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individual which provides Advertising to DoubleClick for distribution through
the Service. "Advertiser's Web Site" is defined as the web site linked to Direct
Advertising and where a Completed Action occurs. "Advertising" or
"Advertisement" is defined as third party materials including "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. "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. *** "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. "DoubleClick Commissions"
is defined as monies payable to DoubleClick from an Advertiser as a result of a
Completed Action. "DoubleClick Adjusted Commissions" is defined as the
DoubleClick Commission less (i) a debt allowance of one percent (1 %) and (ii)
broker and agent fees payable by DoubleClick with respect to the Advertiser.
"Impression" is defined as occurring each time Advertising appears on a Page
resulting from a user accessing or visiting such Page. "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 ▇▇▇▇▇▇▇▇. "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. "Paid Advertising" or "Paid Advertisement" is defined
as any Advertising which is paid for by an Advertiser. "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 of this Agreement. If no match occurs or a Direct
Advertisement is unavailable, Advertising promoting the Service and Advertising
_________________________
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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promoting charitable causes and non-profit organizations (e.g. public service
announcements) may appear on Pages. "Spot" is defined as the specific place on a
Page where Advertising may appear through the Service. "Web Site" is defined as
the Company's web site referred to above.
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