Preview of our top selling Advertising Agency Agreement
Margeotes / Infoseek - Agency Agreement
INFOSEEK CORPORATION ADVERTISING AGREEMENT
AGREEMENT made as of January 1, 1996 by and between MARGEOTES|FERTITTA + PARTNERS INC, (hereinafter called the "Agency") whose address is 411 LAFAYETTE STREET, NEW YORK, NY 10003 and Infoseek Corporation (hereinafter called "Infoseek") whose address is 2620 Augustine Drive, Suite 250, Santa Clara, CA
WITNESSETH:
In consideration of the mutual promises, covenants, and agreements contained, and other good and valuable considerations, receipt of which is hereby acknowledged by each party, the parties agree as follows:
1. APPOINTMENT
1.1 Agency Services. Infoseek hereby retains the Agency on a
non-exclusive basis in the United States, and the Agency
hereby agrees to serve Infoseek, in connection with the
preparation of advertisements for such of Infoseek's products
and services as it may from time to time designate and for
placement in such advertising media as it may from time to
time designate including newspapers, magazines, radio and
television broadcasting, outdoor advertising, and other
legitimate advertising media.
1.2 Agency Status. Agency is hereby authorized to act in a legal
capacity of agent for Infoseek in the procurement of tangible
personal property on behalf of Infoseek from outside sources
in furtherance of a program of advertising. Concerning such
purposes, the price billed to Infoseek, exclusive of any
agency compensation or prompt payment discount separately
stated, shall be the same as the amount paid by Agency and
shall be shown separately on an invoice or shall be separately
invoiced. It is the intent of this paragraph to comply with
the prerequisites for establishing Agency's "agent" status as
set forth in Regulation 1540 of the Board of Equalization,
Department of Business Taxes, State of California, if
applicable. If and when any governmental agency at any time
assesses any taxes whatsoever (whether during or after the
term of this Agreement) regarding the sale or transfer of
personal property by Agency to Infoseek (or any additional or
substituted real or personal property tax) Infoseek agrees to
pay such additional tax upon demand.
2. DUTIES OF AGENCY
In execution of Infoseek's advertising the Agency shall perform the following duties and Infoseek will cooperate to its best ability:
2.1 Study the products/services of Infoseek covered by this
Agreement, the market for its products/services, and
Infoseek's competition and formulate an advertising strategy
for Infoseek.
2.2 When requested by Infoseek, prepare preliminary plans for the
proper advertising of the products/services which will be
designed to make the best possible use of the appropriation
deemed necessary or the appropriation made available by
2.3 Prepare cost schedules for advertising expenditures and other
related costs.
2.4 Prepare layouts and, when requested, finished comprehensive
layouts; and prepare all actual copy to be used in
advertisements of all types.
2.5 Exercise its best efforts to purchase at the most favorable
rates artwork of the quality required by Infoseek, engravings,
printed matter, and other collateral materials, from artists,
designers, photographers, engravers, printers and others.
1 of 9 2.6 Contract on behalf of and as directed by Infoseek with
advertising media and others for and in connection with the
advertising of Infoseek and exercise its best effort to do so
at the most advantageous rates obtainable.
2.7 Check the insertion of advertisements in publications for
appearance, date, positions, size, and mechanical reproduction.
2.8 Check by the examination of affidavits furnished by stations
the broadcast of radio and television advertising for time,
accuracy, extent, and other related factors.
2.9 Check the display of outdoor advertising for date of
appearance, positions, site, workmanship, and mechanical
2.10 Retain custody of Infoseek's property and exercise its best
efforts when deemed necessary by Infoseek or Agency to obtain
its return from third parties.
2.11 Undertake any other activities as may be mutually agreed upon.
3. APPROVAL BEFORE COMMITMENTS BY AGENCY
3.1 The Agency shall in no event place any advertisement of
Infoseek in any advertising medium without first submitting
the text and designs therefor to Infoseek and obtaining
Infoseek's approval thereof. Such approval may be granted only
by Infoseek's Director of Marketing or a designee specified in
writing by the director and may be made in writing or orally.
3.2 Before incurring liability for artwork, mechanical layouts,
and/or printed matter, the Agency shall first secure approval
of text and designs in accordance with Paragraph 3.1 above,
which approval shall constitute approval for the Agency to
purchase such artwork, mechanical layouts and/or printed
matter necessary for the advertisement in which the approved
text and designs are to be used.
3.3 Agency will make all reasonable efforts to guard against any
loss to Infoseek through failure of any supplier or agent to
properly execute their commitments, but Agency shall not be
held responsible for any such failures. Agency agrees that in
purchasing materials of services for Infoseek's account,
Agency shall exercise due care in selecting suppliers and make
every effort to obtain the lowest price for the desired
quality of materials or services. Wherever possible, Agency
shall obtain competitive bids. In no event shall Agency
purchase any materials or services from any supplier which is
a subsidiary or affiliated company of Infoseek or which is
known to Agency to be owned or controlled by any of the
directors or officers of Agency without making full disclosure
to Infoseek of any such relationship.
4. CHARGES TO INFOSEEK; SPACE AND TIME
4.1 Where an agency commission of [ ]* is
allowed by the medium, Infoseek agrees to pay the Agency at
rates contracted with medium based on published rate cards, or
as negotiated, whichever rate is more advantageous to
Infoseek, where less than [ ]* commission
is allowed, Infoseek agrees to pay the Agency at contracted
rates plus an amount which will yield the Agency [ ]*
of its total charge to Infoseek, inclusive of commission, i.e.
[ ]* of the gross billing for medium. __________________________________
*Confidential Treatment Requested for Redacted Portion.
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Agency shall be paid for its commissions, overrides and fees
as follows:
The first [ ]*
(to the extent Infoseek shall have received invoices
therefor on or before [ ]* will be paid
in stock, as defined below.
All subsequent payments will be made in cash, unless
otherwise agreed to by Agency and Infoseek in writing
in advance of the rendering of Agency's services.
All stock payments will be made in the same class and series
of stock at the purchase price paid by NYNEX Information
Technologies Company ("NYNEX") on March 29, 1996. Infoseek
represents that the Agency will have identical rights on a per
share basis as NYNEX-piggybacked and other rights, including,
but not limited to, registration rights, liquidity, dividends,
and anti-dilution protection. In this regard Agency will
become a signatory to the following:
o Second Amended and Restated Co-Sale Agreement,
as amended
o Second Amended and Restated Investor Rights Agreement,
as amended
o Infoseek Corporation Series E Stock Purchase Agreement.
All shares earned by Agency will be immediately vested and
issued to Agency on or before the due date of invoices
rendered to Infoseek by Agency.
Agency shall be free to sell, pledge, hypothecate or otherwise
dispose of the stock pursuant to the aforementioned agreements.
4.2 If, in an advertising medium having a schedule of graduated
rates, less space or time than contracted for is used,
Infoseek is to pay the Agency the difference, if any, between
the amount due at the rate named in the contract between the
Agency and the medium, and the amount due at the rate
applicable to the quantity of space or time used in connection
with Infoseek's advertising or a negotiated amount, whichever
is more advantageous to Infoseek.
4.3 If, in a medium having a schedule of graduated rates, more
space and time than contracted for is used, the Agency shall
refund to Infoseek any excess Infoseek may have paid the
Agency over the amount due at the rate earned.
4.4 The Agency shall refund or credit to Infoseek any other
refunds or commission in excess of those stated in this
Paragraph 4 received by the Agency in connection with
advertising space, radio or television time, or materials for
which Infoseek had paid the Agency.
___________________________________
*Confidential Treatment Requested for Redacted Portion.
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5. CHARGES TO INFOSEEK, OTHER THAN FOR SPACE AND TIME
5.1 Outside Supplier Cost. For all services and materials listed
below (other than for space, or radio and television time)
purchased by the Agency upon the authorization of Infoseek,
Infoseek shall pay to the Agency an amount equal to the charge
to the Agency before deduction of cash discount [ ]*
commission, no commission is to be paid on sales or use taxes.
The following items are to be billed on this basis:
a. Illustration, design, artwork, comprehensive layouts,
and mechanical.
b. Engraving, typography, photography,
and other materials.
c. Printed matter.
d. Special writers.
e. Radio and television talent and programs or package
shows, radio, television and other script or
treatments, musical arrangements and program and
commercial production.
f. Surveys contracted for with independent research
organizations or individuals.
5.2 Account Management Time. For the services and materials listed
below, furnished by the Agency and which have been authorized
by Infoseek (as distinguished from services and materials
bought outside the rates in effect at the time the work is
performed, including work performed prior to execution of this
Agreement. Agency's hourly rates are published and current
Agency rate card is considered apart of this Agreement by
reference. Infoseek reserves the right to be informed of any
change in rates whenever they occur, and prior to their effect
on services rendered. Services included:
a. Finished artwork, comprehensive layouts, and
b. Publicity and public relations work.
c. Special research authorized by Infoseek.
d. Sales and service materials.
e. Preparation of cooperative advertising.
f. Special sales promotion and merchandising work.
g. Other services as may be approved by Infoseek in
writing in advance.
h. Supervisory and administrative services rendered by
the Agency in connection with advertising, printed
matter, counter displays, collateral materials, and
the like, and for services rendered by the Agency in
the preparation of copy and layout for such items
Infoseek shall pay to the Agency such amount as is
agreed upon by the Agency and Infoseek.
5.3 Reimbursed Expenditures. Upon the Agency performing the
services listed below, Infoseek agrees to reimburse the Agency
for such cash disbursements as the Agency may make in
connection with them and such additional expenditures as may
be approved by Infoseek in advance in writing:
___________________________________
*Confidential Treatment Requested for Redacted Portion.
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a. Forwarding and mailing to persons other than Infoseek
(including packing, postage, express, taxes, import
duties).
b. Long distance telephone and facsimile expenses on
Infoseek's behalf beyond normal Agency-Infoseek
c. Taxes incurred on Infoseek's behalf.
d. Upon prior approval from Infoseek, traveling expenses
incurred on Infoseek's behalf beyond normal
Agency-Infoseek requirements.
e. Other services as may be approved by Infoseek from
time to time in writing in advance.
6. BILLINGS TO INFOSEEK
6.1 Infoseek agrees to pay the Agency's invoices on or before
payment dates stated thereon. The Agency agrees that such
payment dates will not precede, by more than Five (5) days,
the date on which the Agency must pay media. The Agency will
mail invoices at least Forty-five (45) days before payment
6.2 Invoices submitted by the Agency to Infoseek covering
expenditures or commitments made by the Agency on Infoseek's
behalf shall be accompanied by tear sheets (if such
expenditures or commitments are for printed advertisements) or
by affidavits of performance (if such expenditures or
commitments are for broadcast advertisements) or by copies of
subcontractors' invoices (if such expenditures are for
production services). If tear sheets or affidavits are not
available when the invoices are submitted, the Agency shall
forward the tear sheet as soon thereafter as possible ...
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