MEDIA SEARCH LICENSE AGREEMENT
THIS MEDIA SEARCH LICENSE AGREEMENT ("Agreement") is made and entered into
effective October 28, 1998 (the "Effective Date"), by and between
Entertainment Boulevard, Inc., with its principal place of business at ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇, a California corporation,
("Media Search Partner" or EntertainmentBlvd") and AltaVista Company, a
Delaware corporation, with its principal place of business at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ("AltaVista" or "AV").
1. DEFINITIONS. For purposes of this Agreement, "Content" shall refer to
the image media files, image media file indices, descriptive data feeds,
and other media Content resident on Media Search Partner's Web site
domain and/or aggregated by Media Search Partner, and made available to
the AltaVista search engine for purposes of generating one or more
custom multimedia search index files. For purposes of this Agreement,
"AltaVista Platform" refers to a generic set of Web pages that may also
function together as a Web site. The AltaVista Platform may contain any
or all of the following: an Internet index, a search tool (resident on
any of the AltaVista Platforms and/or any OEM version of the AltaVista
search service), advertising, or any other feature that might be
desirable on a Web site domain. For purposes of this Agreement,
"co-branding" refers to one or more web pages containing attribution and
brand features of both AltaVista and Media Search Partner.
2. LICENSE. Media Search Partner hereby grants to AltaVista (itself or
through its "Affiliates," which means any person or entity directly or
indirectly controlling, controlled by or under common control with
AltaVista), under all of Media Search Partner's intellectual property
rights, a worldwide, non-transferable, non-exclusive license, during the
term of this Agreement to access, crawl, reproduce, create derivatives
of, index, display, perform and distribute the Content to end users by
means of search results on the AltaVista Platform (as more particularly
described in Exhibit A to this Agreement). Search results may be in the
form of text links, thumbnails, both and/or some derivative form thereof.
3. USE OF TRADEMARKS. Each party grants the other a non-exclusive,
non-transferable, royalty-free right to display during the term of this
Agreement the trademarks, service marks and logos (collectively, the
"Marks") made available by such party, subject to the terms of this
Agreement and such party's typical trademark usage standards. In the
event either party determines that the other's use of the applicable
Marks is inconsistent with the applicable ▇▇▇▇ ▇▇▇▇▇▇'▇ quality
standards, then upon written request and within ten (10) days, the
applicable party shall conform to the proper use of such ▇▇▇▇(s). If
either party fails to conform to the applicable use of the other party's
Marks, then the owner of such Marks shall have the right to suspend use
of such ▇▇▇▇(s) under the terms of this Agreement. Each party hereby
acknowledges and agrees that (i) the respective Marks are owned solely
and exclusively by the applicable party, (ii) except as set forth
herein, neither party has any rights, title or interest in or to the
other party's Marks and (iii) all use of the other party's Marks by
shall inure to the benefit of the applicable owner of the ▇▇▇▇(s). Each
party agrees not to apply for registration of the other party's Marks
(or any ▇▇▇▇ confusingly similar thereto) anywhere in the world.
TERM; TERMINATION. This Agreement shall be for an initial period of one
(1) year from the Effective Date (the "Initial Term"). In the event the
parties elect to continue this Agreement for an additional period of
time, each subsequent term of this Agreement shall be for a period of
three (3) months. This Agreement shall be renewed automatically for
additional three (3) months periods unless Media Search Partner provides
written notice of termination to AV not less than sixty (60) days before
the end of the then current term.
5. TERMINATION FOR CONVENIENCE. AV may terminate this Agreement at any
time, with or without cause, upon thirty (30) days prior written notice
to Media Search Partner. Upon termination of this Agreement, AV's
rights to publish or display the Content shall terminate. However, AV
and/or its Affiliates may continue to use previously delivered Content
for internal purposes only, including but not limited to archival. AV
and Media Search Partner shall work to ensure that end users who may
attempt to access previously delivered or produced Content are properly
referred to a non-expired Web page on the AV Platforms for a period of
thirty (30) days following termination of this Agreement.
6. REPRESENTATIONS AND WARRANTIES. Media Search Partner represents and
warrants that: (i) it has obtained all necessary consents and licenses
associated with the Content, and has full authority to grant the
licenses contained in this Agreement; and (ii) the Content does not, and
its placement within the AV Platform in accordance with this Agreement
will not: (a) violate any international, federal, state or local law or
regulation; (b) infringe any copyright, trademark, trade secret or other
intellectual property rights of any third party; (c) in any way
misappropriate any party's name or likeness, or violate any party's
right of privacy, publicity, or any other right of any third party; (d)
contain any material which is unlawful, harmful, abusive, hateful,
obscene, threatening, libelous or defamatory; (vi) the Content shall be
free of any viruses, Trojan horses, trap doors, back doors, Easter eggs,
worms, time bombs, cancelbots or other computer programming routines
that are intended to damage, interfere with, intercept, or expropriate
any system data or personal information; and (vii) its internal systems
and network shall be Year 2000 Compliant and, during the initial and
Subsequent Terms, Media Search Partner will use commercially reasonable
efforts to correct any errors which have a material adverse effect on
its internal systems and/or network.
7. INDEMNITY. Media Search Partner agrees to indemnify, defend and hold
harmless AltaVista, its affiliates and each of its respective
shareholders, officers, directors, employees and agents, harmless from
and against any and all losses, penalties, liabilities, injuries,
damages, judgments, attorneys' fees, appellate fees, and any other costs
and expenses incurred in connection with any third party claims, causes
of action, or claims by any person or entity relating to the Content
provided by Media Search Partner to AltaVista and its Affiliates
pursuant to this Agreement and/or the use by AltaVista of the Content
pursuant to this Agreement, including, but not limited to, any third
party claims alleging infringement of any copyright, patent, trademark
or other proprietary right, or alleging libel, slander, defamation or
invasion of privacy, arising from: (i) the use of the Content, Media
Search Partner's Marks, or other materials or information provided by
Media Search Partner; and (ii) any
bridge Media Search Partner of the term representation and warranties set
forth in this Agreement.
8. LIMITATION OF LIABILITY. Each party's liability, and in AltaVista's
case the liability of its Affiliates, in connection with this Agreement
shall be limited to the aggregate amount of fees paid by Media Search
Partner under this Agreement. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY
BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL,
SPECIAL OR EXEMPLARY DAMAGES, LOST PROFITS, LOST USE OF EQUIPMENT, LOSS
OF STORED MEMORY, COST OF SUBSTITUTE EQUIPMENT OR OTHER DOWNTIME COSTS,
REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT,
TORT, STRICT LIABILITY, BREACH OF WARRANTIES, FAILURE OF ESSENTIAL
PURPOSE OR OTHERWISE, (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES), OR FOR ANY CLAIM AGAINST THE OTHER BY ANY
OTHER PARTY ARISING FROM THE RELATIONSHIP CONTEMPLATED BY THIS AGREEMENT.
9. CONFIDENTIALITY. The parties acknowledge that, in the course of their
dealings hereunder, each may acquire information about the other, its
business activities and operations, its technical information and its
trade secrets, all of which are proprietary and confidential (the
"Confidential Information"). Each party agrees that the terms of this
Agreement shall be deemed the Confidential Information of each party.
During the Term of this Agreement (including any Extension Terms) and
for a period of two (2) years after the expiration or termination of
last Extension Term, each party hereby agrees that: (i) all Confidential
Information shall remain the exclusive property of the disclosing party;
(ii) it shall maintain, and shall use prudent methods to cause its
employees, agents and its Affiliates to maintain, the confidentiality
and secrecy of the Confidential Information; (iii) it shall use prudent
methods to ensure that its employees, agents and its Affiliates do not
copy, publish, disclose to others or use (other than pursuant to the
terms hereof) the Confidential Information; and (iv) it shall return or
destroy all copies of Confidential Information upon request of the other
party. Notwithstanding the foregoing, Confidential Information shall not
include any information to the extent that it: (i) is or becomes a part
of the public domain through no act or omission on the part of the
receiving party; (ii) is disclosed to third parties by the disclosing
party without similar restriction on such third parties; (iii) is in the
receiving party's possession without the receiving party's actual or
constructive knowledge of an obligation of confidentiality with respect
thereto, at or prior to the time of disclosure under this Agreement;
(iv) is disclosed to the receiving party by a third party having no
obligation of confidentiality with respect thereto; (v) is independently
developed by the receiving party without reference to the disclosing
party's Confidential Information; or (vi) is released from confidential
treatment by written consent of the disclosing party.
10. PUBLICITY. Each party may issue a press release stating that they have
signed this Agreement and may utilize the other party's Marks or stock
symbol in such press release. Each party will supply the other with a
quote from an employee at the Vice President level or higher, or permit
the other party to attribute a quote to such an individual, to be
included in the initial press release. The parties agree to cooperate
with each other in announcing the Agreement to the media by making
spokespeople available, expediting approvals of media documents and
coordination thereof. Approval for such releases shall not be
unreasonably withheld by either party. Neither party shall issue or
permit to be issued, any additional press releases regarding the other
party or this agreement without prior coordination with and approval by
the other party.
11. CHANGE OF CONTROL. Each party shall provide written notice of any
Change of Control (as defined below) of such party to the other party
within ten (10) days of such change. Within thirty (30) days of receipt
of a notice of Change of Control, the other party may terminate this
contract by providing written notice of termination. A "Change of
Control" shall be deemed to have occurred if: (i) any person or entity
becomes the beneficial owner (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934), directly or indirectly, of securities
representing fifty percent (50%) or more of the combined voting power of
the party's outstanding securities; or (ii) a merger or consolidation of
the party with any other entity is approved, unless the voting
securities of the party outstanding immediately prior thereto continue
to represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity) more than fifty percent (50%)
of the combined voting power of the outstanding securities of the
surviving entity immediately after such merger or consolidation.
12. GENERAL PROVISIONS.
12.1 NOTICES. All notices, requests and other communications hereunder
will be in writing and will be delivered in person, or sent by
certified mail, return receipt requested, overnight courier
service, or by facsimile to the address or facsimile number of the
parties set forth below, or to such other addresses or numbers as
may be stipulated in writing by the parties pursuant hereto.
Unless otherwise provided, notice will be effective on the date it
is officially recorded as delivered by return receipt or equivalent
or by facsimile confirmation date.
ALTAVISTA
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director of Business Development
Phone: ▇▇▇.▇▇▇.▇▇▇▇
E Mail: ▇▇▇▇.▇▇▇▇▇▇▇@▇▇.▇▇▇
Address: ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
WITH A COPY TO:
Attn: ▇▇▇▇▇▇▇▇▇ Lucie
Title: Corporate Counsel
Phone: ▇▇▇.▇▇▇.▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
E Mail: ▇▇▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇.▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
MEDIA SEARCH PARTNER
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: VP Of Business Development
Phone: 310.578.5404 x206
E Mail: ▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Address: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
14.3 ENTIRE AGREEMENT. This Agreement, together with any, appendices,
amendments, schedules and/or exhibits hereto, sets forth the entire
understanding between the parties, and supersedes any and all oral or
written
agreements or understandings between the parties, as to the subject matter
of this Agreement. This Agreement may be modified only in a document
signed by both parties. This Agreement shall be binding upon and shall
inure to the benefit of the undersigned parties and their respective
successors and permitted assigns. In the event of a conflict between
any of the terms contained in this Agreement and those contained in any
appendices, amendments, schedules and/or exhibits made part of this
Agreement, the order of precedence shall be as follows:
- The Exhibits
- The Amendments
- The Appendices
- This Agreement
14.4. ASSIGNMENT. Neither party may assign this Agreement, or sublicense,
assign or delegate any right or duty hereunder, without the prior
written consent of the other, except that AV may assign this Agreement to
any of its Affiliates, or, in connection with any merger, sale of assets
or other reorganization transaction involving AV, to any other third
party. This Agreement shall inure to the benefit of AV's Affiliates.
14.5. SURVIVAL OF CERTAIN PROVISIONS. Notwithstanding the termination or
expiration of this Agreement, the rights and obligations in Sections
3, 4, 5, 6, 7, 8, 9 and 10 shall survive termination or expiration of
this Agreement.
14.2. FORCE MAJEURE. In no event shall either party be liable to the other
for any delay or failure to perform hereunder, which delay or failure to
perform is due to causes beyond the control of said party including, but
not limited to, government restrictions, exchange or market rulings,
labor strike, war, act of civil or military authority, sabotage,
epidemic, flood, earthquake, fire, other natural disaster, or any other
event, condition or occurrence beyond the reasonable control of such
party.
14.3. WAIVER. The failure of either party at any time to require performance
by the other party of any provision hereof shall in no way affect the
full right to require such performance at any time thereafter, nor shall
the waiver by either party of a breach of any provision hereof be taken
or held to be a waiver of any succeeding breach of such provision or as
a waiver of the provision itself.
14.4. SEVERABILITY. If any provision of this Agreement or the application
thereof to any person or circumstances shall to any extent be held to be
invalid or unenforceable, the remainder of this Agreement, or the
application of such provisions to persons or circumstances as to which
it is not held to be invalid or unenforceable, shall not be affected
thereby, and each provision shall be valid and be enforced to the
fullest extent permitted by law.
14.5. RELATIONSHIP OF THE PARTIES. This Agreement does not and shall not be
deemed to constitute a partnership or joint venture between the parties
and neither party nor any of their respective directors, officers,
employees or agents shall, by virtue of the performance of their
obligations under this Agreement, be deemed to be an agent or employee
of the other.
14.6. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with the laws of, the State of California without regard to
its conflict of laws principles.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and
do each hereby warrant and represent that their respective signatory whose
signature appears below has been and is on the Effective Date of this
Agreement duly authorized by all necessary and appropriate corporate action
to execute this Agreement.
ALTAVISTA COMPANY
By: /s/ ▇▇▇▇ Memo
---------------------------------
Name: ▇▇▇▇ MEMO
-------------------------------
Title: GM AV Search
------------------------------
ENTERTAINMENT BOULEVARD, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Title: CEO
------------------------------
EXHIBIT A
1. CONTENT TO BE DELIVERED, INDEXED AND DISPLAYED:
a. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ will deliver data leads to AltaVista for the
Video Content on the following Media Search Partner site:
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or successors to this site
("EntertainmentBlvd Content").
b. AV will index the EntertainmentBlvd Content and serve thumbnail
versions of the EntertainmentBlvd Content as search results on its
media search results pages.
c. EntertainmentBlvd will create a co-branded viewing page
("Co-Branded Viewing Page") that will display a full-sized version
of the EntertainmentBlvd Content thumbnails. AV users who click on
a EntertainmentBlvd Content thumbnails on AV media results pages
will link to this Co-Branded Viewing Page.
2. PRODUCTION/HOSTING OF THE VIDEO CLIP AND CO-BRANDED VIEWING PAGE:
a. Media Search Partner will produce and host the Co-Branded Viewing
Page where the video clips from the EntertainmentBlvd Content are
viewed when AV users click on EntertainmentBlvd's thumbnails on an
AV media search results page.
b. The Co-Branded Viewing Page will adhere to the AV look and feel and
AV design specifications. AV will work with EntertainmentBlvd to
create the Co-Branded Viewing Page. AV shall have approval rights
for the Co-Branded Viewing Page to insure it is consistent with
AV's design specifications. AV shall not unreasonably withhold
approval of the Co-Branded Viewing Page. The Co-Branded Viewing
Page will be located at the following URL:
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇.
c. AV will make available to EntertainmentBlvd, a media search box
tool on the Co-Branded Viewing Page free of charge, for a period of
one (1) year from the Effective Date of this Agreement. Should
EntertainmentBlvd elect to incorporate a media search box tool into
its site, AV will use reasonable commercial efforts to implement
the search box tool before the EntertainmentBlvd Content is
integrated and becomes available to the public as part of the AV
media search index.
d. If EntertainmentBlvd elects to incorporate an AV search box, AV
will produce and host a co-branded search results page ("Co-Branded
Results Page").
3. SEARCH RESULTS/RELEVANCY:
a. If a video search is initiated by an end user on the AV media
search page, then the media search results page may or may not
include combined results from the entire World Wide Web,
EntertainmentBlvd and/or other AV partners.
b. If ANY search query is made when a user selects the
EntertainmentBlvd Content under the premier media partner
collection, then the results page will serve thumbnails only from
the EntertainmentBlvd Content.
c. If EntertainmentBlvd elects to incorporate an AV search box on its
site (as per Section 2(c) above), and a media search (in the AV
search box) is initiated by an end user on EntertainmentBlvd's web
site, then the results page will only include Content from the
EntertainmentBlvd Content.
4. BRANDING/ATTRIBUTION:
a. The media search results page containing EntertainmentBlvd Content
thumbnails will display copyright information or other related
information as designated by EntertainmentBlvd as mouse-over text
when users' pointer passes over an EntertainmentBlvd thumbnail or
as may be agreed upon by the parties. The implementation of such
mouse-over text will be consistent with all other mouse-over
functionality on the AV media search results pages.
b. The Co-Branded Viewing Page will also contain an AV return
navigation logo/banner (to be supplied by AV).
5. RETURN NAVIGATION:
a. EntertainmentBlvd will provide AV with return navigation back to
the AV hosted page, from which the user clicked through to
Co-Branded Viewing Page.
b. AV will provide to EntertainmentBlvd the AV return navigation logo
or banner. Should AV change its back navigation logo or banner,
EntertainmentBlvd will substitute the new back navigation
logo/banner within a commercially reasonable time frame.
6. PREMIER PARTNER STATUS:
a. AV shall give EntertainmentBlvd Premier Partner status free of
charge for six (6) months.
b. Premier Partner status is currently in a
developmental/experimental phase and may change from time to
time. AV will rollout Premier Partner features at its
discretion. During the term of the free Premier Partner status,
AV may add, delete, modify or enhance features and may add or
remove partners to these features at its discretion.
c. The current proposed implementation includes adding a Premier
Partner Area on AltaVista's media search page that will allow
users to search for content exclusively within a Premier
Partner's site and rotation along with the other Premier Partners
in a special Premier Partner section promoting the Partner's site
and/or special promotions or events.
7. PRESS RELEASES:
a. Either party may issue a press release announcing the
relationship, and may identify EntertainmentBlvd as an "AltaVista
Media Search Premier Partner." Either party's proposed press
release will be submitted to the other party for approval.
Neither party will unreasonably withhold approval of such.
b. Each party's proposed press release shall adhere to the terms and
conditions described in Section 10 ("Publicity") of this
Agreement.
8. DATA FEED SPECIFICATIONS/REQUIREMENTS:
a. Data feed shall be hosted on an FTP server to which AV shall have
access. The data feed will consist of a video data feed in XML
format.
b. Video data feed must contain the following:
i) Text or keywords that sufficiently describe the makeup
or content of each media item
ii) Media item URL, source, title, author, copy right and
file name
iii) Target page URL, title and abstract
iv) If available a thumbnail that visually represents the
content of each video
v) Duration, file size, and encoding information - frame
depth, rate, height, weight and/or any other relevant
data if available.
vi) If available, closed caption, teleprompter files, and
run down sheets
vii) Start and stop positions if clip is part of a larger
file
c. Thumbnails delivered to AV must be a minimum of 105x105 pixels and
a maximum of 1024x1024, (e.g. 256x256) in jpeg format. This does
not mean all images must be square. Media Search Partner grants
AV the right to create derivative works from the Content delivered
to AV for the purpose of reformatting the Content for display as
search results within AV generated search results pages. If
pre-constructed thumbnails are not available for video Content, AV
will automatically select a key frame from the first thirty
seconds of the video to act as the thumbnail.
d. The parties agree the delivery of data feeds will be in a format
to be mutually agreed upon.
e. Media Search Partner will identify to AV what can be used as a
caption, which AV will display as mouse-over text (also called
"nearby text").
9. CHANGES TO PARTNER CONTENT:
a. As EntertainmentBlvd makes updates and additions to its
Content, EntertainmentBlvd shall make such updates and
additions available to AV. EntertainmentBlvd will make
commercially reasonable efforts to notify AV of updates and
additions within two (2) business days and AV shall have the
option to incorporate such updates and additions to its media
index immediately or during its next indexing period.
b. If there is EntertainmentBlvd Content that is already indexed by
AV and EntertainmentBlvd removes or changes the location of the
Content, EntertainmentBlvd will make commercially reasonable
efforts to notify AV within in two (2) business days that the
Content has been removed or changed and AV will make
commercially reasonable efforts to remove the Content from its
index within two (2) business days.
10. DELIVERY SCHEDULE:
a. EntertainmentBlvd will deliver sample feeds for each
EntertainmentBlvd site by November 7, 1999.
c. EntertainmentBlvd will produce and deliver to AV for review and
approval, the Co-Branded Viewing Page at least two (2) weeks
prior to the date EntertainmentBlvd's Content is slated to be
incorporated into the production version of the AV media search
index and results. The slated date for production will be
determined by AV and communicated to the Search Partner as soon
as such date is established by AV and incorporated into AV's
production schedule.
11. REVENUE MODEL:
a. Through the term of this Agreement, EntertainmentBlvd will pay AV
a percentage of the net e-commerce revenue accrued by
EntertainmentBlvd (EntertainmentBlvd's net e-commerce revenue
shall be fixed at eight percent (8%) for the purpose of this
agreement) equal to the percentage of traffic that AV represents
of EntertainmentBlvd's total traffic in a given month. For
example, if EntertainmentBlvd's total traffic for Month A is 10
million and AV is responsible for 1 million, then AV would
receive ten percent (10%) of EntertainmentBlvd's eight percent
(8%) of total e-commerce revenue in Month A. Since
EntertainmentBlvd cannot track AV traffic beyond the Viewing Page
and therefore cannot accurately measure AV traffic by total page
views, traffic will be measured by total unique visits to
EntertainmentBvld.
b. Through the term of this Agreement, AV shall be responsible for
the sales, management, administration, ad serving, billing and
collection for all advertising and sponsorship on any
Co-Branded Pages. AV shall pay EntertainmentBlvd 40% of Net Ad
Revenues accrued from all Banner Ads sold for the Co-Branded
Viewing Page. "Net Ad Revenues" means gross advertising
revenues accrued to AV for Banner Ads and/or other promotions
displayed on the Co-Branded Pages less third party commissions,
direct ad serving costs, doubtful accounts and concessions
(such commissions, costs, doubtful accounts and concessions, in
aggregate shall not exceed 41% of gross advertising revenue).
Fees are due and payable in full in U.S. dollars within
forty-five (45) days after the each fiscal quarter (Q1 ending
month is October, Q2 is January, Q3 is April, Q4 is July) in
which ad share revenues have been accrued.
12. REVENUE REPORTING:
a. Media Search Partner will on a weekly basis, provide Revenue
reporting of AltaVista generated traffic going to pages hosted by
Media Search Partner and shall include in such reports initial
page traffic and click through site traffic reports based upon
AltaVista generated traffic. Data will be made available through
an automated secure FTP transfer. The parties shall mutually
agree upon the format of the files. All such information shall
be subject to the confidentiality provisions herein.
b. Each party, using one of the big five accounting firms, will have
the right to audit and inspect such files, books and records of
account of the other upon reasonable notice during regular
business hours, but no more frequently than once each year. In
the event a discrepancy is found to exist, the party favored by
such discrepancy shall be entitled to payment of such amounts.
Payment of the auditor will be the responsibility of the
initiating party, unless the auditor finds a discrepancy of
greater than five percent (5%), in which case the party
responsible for the error shall pay the reasonable costs of the
auditor.
13. TRAFFIC REPORTING:
a. Media Search Partner will on a weekly basis, provide traffic
reporting of AltaVista generated traffic going to pages hosted by
Media Search Partner and shall include in such reports initial
page traffic and click through site traffic reports based upon
AltaVista generated traffic. Data will be made available through
an automated secure FTP transfer. The parties shall mutually
agree upon the format of the files.
b. All such information shall be subject to the confidentiality
provisions herein.
14. PROPOSED PREMIER PARTNERSHIP FLOW:
See Exhibit B. The Content of Exhibit B is designed to graphically represent
the current proposed navigational flow from AV search results to the viewing of
an image, video clip and/or other Content hosted and/or owned by the Media
Content Partner. It is not intended to be binding nor is it intended to
supersede any clause or term in this Agreement.
[CHART]
