[LOGO]
TERMS OF AGREEMENT
This to serve as the general Terms of Agreement regarding an integrated
e-commence and advertising business relationship between ▇▇▇▇▇.▇▇▇, Inc., a
Delaware Corporation located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ and
▇▇▇▇▇▇▇.▇▇▇, located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇. ▇▇▇▇▇.▇▇▇ and ▇▇▇▇▇▇▇.▇▇▇ agree to the following:
1. PROGRAM DESCRIPTION
A. ▇▇▇▇▇▇▇.▇▇▇ will have a 116x31 button on the ▇▇▇▇▇.▇▇▇ Home Page
(See attachment A), which will link to a co-branded About Shopping
Channel page as described below in Paragraph 3.
B. ▇▇▇▇▇▇▇.▇▇▇ will be the first shopping service link from all
ShopAbout content navigation links on ▇▇▇▇▇.▇▇▇ as shown in Attachment
B. ▇▇▇▇▇▇▇.▇▇▇ to be the only third-party generalized aggregated
merchant directory shopping service link from all ShopAbout content
navigation links on ▇▇▇▇▇.▇▇▇ as shown in Attachment B. ▇▇▇▇▇.▇▇▇
agrees to not wrap the horizontal line of links in ShopAbout.
ShopAbout shopping links are located above the fold on individual
GuideSite pages and top-level section pages. ShopNow shopping links
will deliver a minimum of 800,000,000 impressions in each year of the
agreement. The 800,000,000 minimum impressions shall be delivered
based on a monthly minimum of 60,000,000 impressions.
C. ▇▇▇▇▇▇▇.▇▇▇ will have a single tile (as shown in Attachment C) in
▇▇▇▇▇.▇▇▇ ShopCenter section in every channel across the ▇▇▇▇▇.▇▇▇
network. In the ▇▇▇▇▇.▇▇▇ Shopping Channel only, ▇▇▇▇▇▇▇.▇▇▇ will be
the first link in the ShopCenter Section and within the top-third of
all listings in all other ShopCenter channels across the ▇▇▇▇▇.▇▇▇
network.
D. ▇▇▇▇▇▇▇.▇▇▇'s ShopCenter tile will deliver a minimum of 800,000,000
impressions in each year of the agreement. ▇▇▇▇▇▇▇.▇▇▇ and ▇▇▇▇▇.▇▇▇
will work together to maximize the targeting and effectiveness of the
message delivered in the ShopCenter tile and all other advertising
locations. A list of the available sections for targeting is shown in
Attachment D. ▇▇▇▇▇.▇▇▇ shall include an in-queue 120X60 banner
button on the About Shopping channel GuideSite pages in either the top
or bottom position. The 120x60 banner buttons have no minimum
delivery but will be served to a maximum of five percent (5%) of
AboutShopping channel page views.
E. ▇▇▇▇▇.▇▇▇ will deliver 60,000,000 468x60 pixel sized banners during
each year of this agreement with a minimum of five million per month.
These banners can be targeted to any of the individual ▇▇▇▇▇.▇▇▇
sections as shown in Attachment D. The parties agree that ▇▇▇▇▇▇▇.▇▇▇
may at its discretion adjust the balance of the delivered impressions
described in paragraphs 1E by a factor of 10% while maintaining the
overall delivery guarantee of one
billion six hundred and sixty million (1,660,000,000) impressions per
year. The 468 banners cannot exceed 66,000,000 per year. ▇▇▇▇▇.▇▇▇
agrees that the 468 banners can be scheduled at a rate of 8 million
per month for the months of September 1999 through December 1999, and
4.25 million per month for the eight other months of the first year.
Parties agree that 468x60 advertising impressions will be run and
targeted to maximize their effectiveness and that maximum exposure in
any/all targeted GuideSites and Channels will not exceed ten percent
(10%) of total available inventory.
2. EXCLUSIVITY: ▇▇▇▇▇▇▇.▇▇▇ will be the exclusive third party generalized
aggregated merchant directory shopping service listed in the ShopAbout
navigation links section described in paragraph 1B above. Exclusivity
shall specifically include but not be limited to the third-party
generalized aggregated merchant directory shopping service sites of the
following: Imall, ▇▇▇▇▇▇▇▇.▇▇▇, ▇▇▇▇▇▇▇▇.▇▇▇, DigitalRiver, Xoom, TheGlobe,
Go2Net, InfoSpace, Excite shopping area, Lycos shopping area, Yahoo
shopping area, Microsoft shopping area, Looksmart, Inktomi or their
derivative aggregated merchant directory shopping service sites.
3. CO-BRANDED PAGE: This ▇▇▇▇▇▇▇.▇▇▇ link as described in Sections 1A and 1B,
above will link to a co-branded page which will reside on ▇▇▇▇▇.▇▇▇'s
servers. This page, Attachment E, will include ▇▇▇▇▇.▇▇▇ editorial and
advertising space and ▇▇▇▇▇▇▇.▇▇▇'s top-level directory structure in
approximate proportion as shown on Attachment E. All links to ▇▇▇▇▇▇▇.▇▇▇
content from this co-branded page will go to ▇▇▇▇▇▇▇.▇▇▇ servers and
▇▇▇▇▇▇▇.▇▇▇ will retain all advertising impressions on these pages.
▇▇▇▇▇.▇▇▇ may insert additional vendors to the ▇▇▇▇▇▇▇.▇▇▇ directory during
the term of this agreement.
Both parties agree that the end user experience on their respective sites
and services is paramount to the goals and objectives of this agreement.
Towards that end, both parties agree to use their best efforts to maintain
their sites and services in a manner that exceeds industry standards.
4. CO-BRANDING ON ▇▇▇▇▇▇▇.▇▇▇: To ensure continuity of the user experience,
▇▇▇▇▇▇▇.▇▇▇ agrees to display an ▇▇▇▇▇.▇▇▇ logo on all ▇▇▇▇▇▇▇.▇▇▇'s pages
directly accessed by ▇▇▇▇▇.▇▇▇ users coming from ▇▇▇▇▇▇▇.▇▇▇ links/banners
described in paragraph 1 and 2 above. The ▇▇▇▇▇.▇▇▇ logo will link back to
the referring ▇▇▇▇▇.▇▇▇ URL.
5. SERVICE DESIGN: ▇▇▇▇▇.▇▇▇ reserves the right to redesign its service at any
time, including, but not limited to, the page layout, the presentation of
advertising units and advertisers throughout the service, with the goals of
improving both the user experience and advertising effectiveness; provided
however, that no redesign will be undertaken for the purpose of reducing
▇▇▇▇▇▇▇.▇▇▇'s exposure on ▇▇▇▇▇.▇▇▇ pursuant to this agreement. ▇▇▇▇▇▇▇.▇▇▇
agrees not knowingly to employ any technology on its service that
effectively disables the Back button on the user's browser.
6. SUCCESSION: This agreement supersedes all prior advertising and e-commerce
agreements and obligations between the parties.
7. TERM: The term of this agreement is five years beginning July 1, 1999 and
extending through June 30, 2004. Following the first nine months of the
term, either party may serve notice of termination by providing written
notice of its intention to terminate 90 days prior to the intended date of
effective termination. Additionally, in the event that one of the parties
undergoes a change of control (where new third party owns more than 50% of
new equity), either party may terminate this agreement upon 120 days prior
written notice. Either party can terminate for cause with 15 days notice
(cause is defined as not delivering terms of this agreement and not
correcting problems with 15 days of notification).
8. REPORTING: ▇▇▇▇▇.▇▇▇ will provide weekly advertising impression reports
from its ad server, currently Doubleclick's DART. Such reports will be
delivered no later than 7 days from the end of each week.
9. CONFIDENTIALITY: The terms of the agreement between ▇▇▇▇▇▇▇.▇▇▇ and
▇▇▇▇▇.▇▇▇ are strictly confidential and not to be disclosed without prior
approval by the other party. However, either party may disclose terms to
bankers, financial partners, potential investors or as part of financial
due diligence or as required by statute.
10. ANNOUNCEMENTS: No later than July 10, 1999 ▇▇▇▇▇.▇▇▇ and ShopNow agrees to
do a PR announcement after the signing of this agreement by both parties
citing ▇▇▇▇▇▇▇.▇▇▇ as a premiere shopping partner of ▇▇▇▇▇.▇▇▇ and stating
that ▇▇▇▇▇▇▇.▇▇▇ is the exclusive third party aggregated merchant directory
shopping partner on the ▇▇▇▇▇.▇▇▇ shopping channel. Both parties will
mutually approve the announcement of this agreement prior to its release.
Approval will cover the content of the announcement and the timing of its
release.
11. ADVERTISING GUIDELINES: ▇▇▇▇▇▇▇.▇▇▇ agrees to ▇▇▇▇▇.▇▇▇'s Standard
Advertising Terms and Conditions which (see Attachment F) may change from
time to time at ▇▇▇▇▇.▇▇▇'s sole discretion.
12. TRADEMARK AND EXCLUSION: Nothing in this agreement gives either party
ownership rights in the other's operations, intellectual property or
trademarks.
13. INDEMNIFICATION: ▇▇▇▇▇▇▇.▇▇▇ agrees to indemnify, defend and hold ▇▇▇▇▇.▇▇▇
its successors, officers, directors and employees harmless from any and all
actions, cause of action, claims, demands, costs, liabilities, expenses
(including reasonable attorney's fees) and damages arising out of or in
connection with any claim relating to ▇▇▇▇▇▇▇.▇▇▇. ▇▇▇▇▇.▇▇▇ agrees to
indemnify, defend and hold ▇▇▇▇▇▇▇.▇▇▇, its successors, officers, directors
and employees harmless from any and all actions, cause of action, claims,
demands, costs, liabilities, expenses (including reasonable attorney's
fees) and damages arising out of or in connection with any claim relating
to ▇▇▇▇▇.▇▇▇.
14. ASSIGNMENT: Neither party may assign this agreement without prior written
consent of the other party.
15. COST AND PAYMENT TERMS: The annual cost of this program to ▇▇▇▇▇▇▇.▇▇▇ is
two million dollars ($2,000,000) net per year billed monthly at the rate
of one hundred sixty six thousand sixty six dollars and sixty six cents
($166,666.66), ▇▇▇▇▇▇▇.▇▇▇ agrees to remit to ▇▇▇▇▇.▇▇▇ within 30 days of
receipt of monthly invoices.
16. AUDITS: Each party may cause an audit to be made, at its expense, of the
applicable records of the other party in order to verify reports rendered
and payments made hereunder. Any such audits shall be conducted (other than
on a contingency fee basis), only by an independent and U.S. nationally
prominent certified public accountant (or other mutually approved
independent auditor) after reasonable prior written notice to the audited
party, and shall be conducted during regular business hours at the audited
party's offices and in such a manner as to unreasonably interfere with the
audited party's normal business activities. In no event shall an audit with
respect to any report commence later than eighteen (18) months from the
date of the report involved, nor shall audits be made hereunder more
frequently than twice annually, nor shall the records supporting any
reports be audited more than once. The results of any such audit shall be
subject to the confidentiality obligations set forth in Paragraph 8. In the
event that an audit hereunder shall have disclosed an undisputed
underpayment or overpayment, then the respective party shall immediately
pay to the other party the amount of such underpayment or overpayment,
whichever the case. If such underpayment or
overpayment is more than five percent (5%) of the amount owed to the
auditing party, then the other party shall reimburse the auditing party for
the reasonable direct, out-of-pocket costs actually paid by the auditing
party for such audit.
17. DEFAULT: either party may terminate this Agreement if the other party is in
default of any of the provisions in this Agreement and such default is not
cured within fifteen (15) days after written notice of the default is
received.
18. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between
the parties as to the matters set forth herein. No modification of this
Agreement shall be binding unless such modification shall be in writing and
signed by both parties. If any provision of this Agreement is ever
determined to be not enforceable, the remaining provisions shall remain in
full force and effect.
19. NOTICES: All notices shall be in writing, mailed by certified or registered
mail, return receipt requested, or by an overnight courier service that
provides a receipt, to the parties at the addresses set forth in the first
paragraph of this Agreement. Any party may change its notice address by
written notice to the other party. Copies of all notices given to ▇▇▇▇▇.▇▇▇
shall be sent to ▇▇▇▇▇.▇▇▇ Inc. ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇, Attention: General Counsel and Frankfurt, ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇, P.C.,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Esq. Copies of all notices given to ShopNow shall be sent to:
21. JURISDICTION AND DISPUTES: This Agreement shall be governed in accordance
with the laws of the State of New York applicable to contracts made and to
be performed fully therein without giving effect to the conflicts of laws
principles thereof. All disputes under this Agreement shall be resolved
exclusively by the state or federal courts located in the New York or
mutually agreeable neutral state. Each party hereby consents to the
jurisdiction of such courts, agrees to accept service of process by mail,
and waives any jurisdictional or venue defenses otherwise available to it.
Agreed and Accepted
▇▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇.▇▇▇
▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇
Executive Vice-President President, Advertising Sales
E-commerce Services And E-Commerce
Sig: /s/ ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇ Sig: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------- --------------------------
Date: 7-7-99 Date: July 7, 1999
------------------------------- -------------------------