EXHIBIT 10.14
INTERIM AMENDED AND RESTATED
ADVERTISING SERVICES AGREEMENT
This ADVERTISING SERVICES AGREEMENT (this "Agreement"), effective as
--------- of November 1, 1999 (the "Effective Date"), by and between DoubleClick Inc., a
-------------- Delaware corporation ("DoubleClick"), AltaVista Company, a Delaware corporation
----------- (as successor to Compaq Computer Corporation) and AV Internet Solutions Ltd., an Irish corporation (AV Internet Solutions Ltd., AltaVista Company, and the direct and indirect subsidiaries of AltaVista Company, "AltaVista").
WHEREAS, DoubleClick and Compaq Computer Corporation entered into an Advertising Services Agreement as of January 1, 1999 (the "Existing Agreement");
------------------
WHEREAS, AltaVista is the successor in interest to Compaq Computer Corporation's rights and obligations under the Existing Agreement;
WHEREAS, DoubleClick and AltaVista desire that the Existing Agreement be suspended and that this Agreement apply instead but only for the duration of the period from January 1, 2000 until December 31, 2000 (except for Section 4.2 and 4.4, which shall apply from the Effective Date until December 31, 2000), after which this Agreement shall cease to have effect and the Existing Agreement shall again apply;
WHEREAS, subject to Section 11.8, AltaVista intends to form an internal sales force to solicit advertising for the Web Site; and
WHEREAS, in furtherance of the objectives set forth above, the parties hereto desire to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, DoubleClick and AltaVista, intending to be legally bound, hereby agree as follows:
As of the Effective Date Sections 4.2 and 4.4 of the Existing Agreement are deleted in their entirety and replaced with the Sections numbered 4.2 and 4.4 below.
As of January 1, 2000 the parties hereby agree that the Existing Agreement is amended and restated in its entirety as set forth in this Agreement.
The parties agree that on January 1, 2001, the Existing Agreement shall again apply and that apart from any obligations that survive pursuant to Section 5.5(b) of this Agreement, this Agreement shall no longer be of any effect on January 1, 2001.
The parties further agree that DoubleClick may delegate its obligations under this Agreement outside the United States to the Affiliates and joint venture entities listed on Exhibit H, and to any other Affiliate or joint venture entity that has been approved by AltaVista, which approval shall not be unreasonably withheld.
ARTICLE I
DEFINITIONS
1.1 Definitions. As used in this Agreement, the following terms shall
----------- have the meanings specified below:
(a) "Ad Sales Service" shall mean the services provided by DoubleClick on behalf of AltaVista in relation to the Web Site pursuant to Article III.
(b) "Advertiser" shall mean a Person who provides material, whether directly or through its advertising agency, to promote itself, its brands or the products or services that it offers.
(c) "Advertiser Contract" shall mean any contract with an Advertiser relating to the sale of Advertising.
(d) "Advertising" or "Advertisement" shall mean any material (including any graphical or textual element) provided by or on behalf of an Advertiser that promotes a brand or products or services and which falls within one of the following categories: (i) it is on the rate card for Advertising, (ii) it is intended to be on the rate card for Advertising, or (iii) it is or could be rotated between several different Advertisers without changing the nature of the content or service on the Page where the advertising material appears. [***]
[***] Denotes language for which AltaVista has requested confidential treatment pursuant to the rules and regulations of the Securities Act of 1933, as amended.
(e) "Affiliate" shall mean, with respect to any Person, any other Person that, directly or indirectly, controls, is controlled by, or is under common control with, such Person.
(f) "Agreement" shall mean this Agreement and the schedules, exhibits and addenda attached hereto as the same may be amended, supplemented or modified in accordance with the terms hereof.
(g) "Average Combined Pricing" shall have the meaning set forth in Section 4.4 of this Agreement.
(h) "Average DART Only Fee" shall have the meaning set forth in Section 4.4 of this Agreement.
(i) "Badge" shall mean a graphical element in a fixed location on a Page designed for the delivery of Advertising that is, as of the Effective Date, [***] or the equivalent or smaller sizes, and shall, in all cases, include all natural evolutions thereof. A current sample of a Badge is attached hereto as Exhibit A.
[***] Denotes language for which AltaVista requested confidential treatment pursuant to the rules and regulations of the Securities Act of 1933, as amended.
(j) "Bad Debt" shall mean receivables for billed Net Revenues in which collection has not been made and, in accordance with criteria set by AltaVista, is deemed
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uncollectable. In no event shall a receivable that is less than One Hundred and Twenty (120) days past due be deemed uncollectable.
(k) "Banner" shall mean a graphical element in a fixed location on a Page designed for the delivery of Advertising that is, as of the Effective Date, [***], and shall include all natural evolutions thereof. A current sample of a Banner is attached hereto as Exhibit A.
[***] Denotes language for which AltaVista has requested confidential treatment pursuant to the rules and regulations of the Securities Act of 1933, as amended.
(l) "Barter" shall mean the exchange or trade of any unsold inventory on the Web Site for non-monetary consideration.
(m) "Beyond-the-Banner Arrangements" shall mean any arrangement, as now existing or hereafter developed, for material provided by or on behalf of an Advertiser that promotes a brand or products or services and is provided for delivery to Users on a Page or Pages but does not constitute a Standard Ad Unit. "Beyond-the-Banner Arrangements" include, but are not limited to, the following: (i) ad units hereafter developed other than the Standard Ad Units (whether or not such newly-developed ad unit requires integration with the content on the Web Site); (ii) Pages on the Web Site that are customized so that they include co-branding with, or sponsorship by, the Advertiser during the course of the arrangements; and (iii) Pages on the Web Site that feature content created or licensed from the Advertiser or another third party specifically for the advertising campaign in question. Advertising campaigns may include both Beyond- the-Banner Arrangements and Standard Ad Units.
(n) "Button" shall mean a graphical element in a fixed location on a Page designed for the delivery of Advertising that is, as of the Effective Date, [***], and shall include all natural evolutions thereof. A current sample of a Button is attached hereto as Exhibit A.
[***] Denotes language for which AltaVista has requested confidential treatment pursuant to the rules and regulations of the Securities Act of 1933, as amended.
(o) "Centralized Internet Ad Company" shall mean any company that is primarily engaged in the business of targeting, measuring and delivering Advertising on the Internet via a network of web sites all linked to the company's computers.
(p) "Comparable Customer" shall have the meaning set forth in Section 4.4 to this Agreement.
(q) "AltaVista" shall have the meaning set forth in the preamble to this Agreement.
(r) "AltaVista Indemnitee" shall have the meaning set forth in Section 7.2 to this Agreement.
(s) "Confidential Information" shall have the meaning set forth in Section 10.1 to this Agreement.
(t) "Content Zone" shall mean either (i) any section of the Web Site existing as of the date of this Agreement that contains editorial content, whether such content is developed by AltaVista or licensed from a third party, provided that the Standard Ad Units in such section had been sold by DoubleClick prior to the Effective Date of this Agreement, or (ii)
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any currently existing section of the Web Site that offers services to Users (e.g., translation and e-mail services) other than services that would be offered on a Home Page, Search Results Page or Directory Page.
(u) "Content Zone Page" shall mean any Page within a Content Zone. For purposes of this Agreement, any Page that has attributes of a Content Zone Page shall be deemed a "Content Zone Page", even if it also has attributes of a Directory Page. However, any Page that has the attributes of a Content Zone Page and also of a Home Page and/or Search Results Page shall be deemed to be a "Home Page" or "Search Results Page" only, and shall in no event be deemed a "Content Zone Page."
(v) "DART Service" shall mean a service provided by DoubleClick to Web site publishers for the targeted and measured delivery of Advertising through the System from DoubleClick's servers to specified Web sites based on criteria selected by Advertisers.
(w) "Directory Page" shall mean any Page that contains a comprehensive directory of Web sites, whether existing on the Web Site as of the date of this Agreement or developed in the future. Any Page that has the attributes of a Directory Page and of a Home Page, Search Results Page and/or Content Zone Page shall be defined in accordance with the definitions of "Home Page", "Search Results Page" and "Content Zone Page", and shall in no event be deemed a "Directory Page."
(x) "DoubleClick" shall have the meaning set forth in the recitals to this Agreement.
(y) "DoubleClick Competitor" shall mean any Person that is (i) primarily engaged in the business of third party online advertising sales, delivery, or tracking or otherwise engaged in third party online advertising technology or services and/or (ii) listed in Exhibit F attached hereto; provided, however, that a Person shall be deemed a "DoubleClick Competitor" if it owns a division, business unit or similar entity that is primarily engaged in the business of third party online advertising sales, delivery, or tracking or otherwise engaged in third party online advertising technology or services.
(z) "DoubleClick Represented Pages" shall mean any Pages for which DoubleClick may sell Advertising pursuant to the terms of this Agreement.
(aa) "DoubleClick Indemnitee" shall have the meaning set forth in Section 7.1 to this Agreement.
(bb) "Effective Date" shall have the meaning set forth in the preamble to this Agreement.
(cc) "Existing Agreement" shall have the meaning set forth in the recitals to this Agreement.
(dd) "Existing Orders" shall have the meaning set forth in Section 3.8(e) to this Agreement.
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(ee) "Home Page" shall mean the Page initially presented to the User when accessing the primarily advertised Web Site URL. For the purposes of this Agreement, any Page that has the attributes of a Home Page shall be deemed to be the "Home Page," even if it also has attributes of any of the following: a Search Results Page, Content Zone Page and/or Directory Page.
(ff) "HTML Modifications" shall have the meaning set forth in Section 3.7 to this Agreement.
(gg) "Impression" shall mean each occurrence of Advertising on a Page resulting from a User accessing or visiting such Page.
(hh) "Indemnitee" shall have the meaning set forth in Section 7.3 to this Agreement.
(ii) "Indemnitor" shall have the meaning set forth in Section 7.3 to this Agreement.
(jj) "International Ads" shall mean Advertising offered to Non-U.S. Advertisers.
(kk) "Local Ads" shall mean Advertising offered to U.S. Advertisers to target Users who are located in any of five or fewer U.S. states specified by such U.S. Advertiser.
(ll) "National Ads" shall mean Advertising offered to U.S. Advertisers to target Users who are located in any of six or more U.S. states specified by such U.S. Advertisers.
(mm) "Net Payable" shall have the meaning set forth in Section 4.6 of this Agreement
(nn) "Net Revenue" shall mean the gross billings invoiced by DoubleClick to Advertisers less rate card and volume discounts, rebates, make- goods and third party agency commissions.
(oo) "New Inventory" shall have the meaning set forth in Section 3.5 to this Agreement.
(pp) "New Inventory Addendum" shall mean the addendum, to be signed by both AltaVista and DoubleClick, that will confirm the New Inventory that will be subject to this Agreement and the specific arrangements for such New Inventory.
(qq) "New Web Site Area" shall have the meaning set forth in Section 3.5 to this Agreement.
(rr) "Non-U.S. Advertiser" shall mean an Advertiser for which the primary sales contact with respect to a given Advertising campaign is based in Advertiser's offices outside of the United States; provided, however, that if an Advertiser is represented by an
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advertising agency, the primary sales contact shall be deemed to be the agency's primary contact in the Advertiser's organization.
(ss) "Page" shall mean a page on the Web Site that is linked to the DART Service.
(tt) "Paid Advertising" or "Paid Advertisement" shall mean (i) Advertising which is paid for by an Advertiser; (ii) Advertising that is provided to an Advertiser free of charge as a component of a Paid Advertising campaign; and (iii) Advertising provided as a make-good to an Advertiser so long as DoubleClick shall not receive credit more than once for such make-good.
(uu) "Permitted Designees" shall mean any designee of AltaVista provided that such Person is not a DoubleClick Competitor.
(vv) "Person" shall mean any individual, firm, corporation, partnership, trust, association, joint venture, company or other entity, or any government authority.
(ww) "Sales Policies" shall have the meaning set forth in Section 3.10 to this Agreement.
(xx) "Search Results Page" shall mean the Page on any section of the Web Site on which the results of a keyword search powered by the AltaVista search engine appear. For the purposes of this Agreement, any Page that has the attributes of a Search Results Page shall be deemed to be a "Search Results Page" only, even if it also has attributes of any of the following: Content Zone Page or Directory Page. However, any Page that has the attributes of both a Search Results Page and Home Page shall be deemed a "Home Page" only, and shall in no event be deemed a Search Results Page.
(yy) "Services" shall mean, collectively, the DART Service, the Ad Sales Service, and any other service provided by DoubleClick to AltaVista under this Agreement.
(zz) "Standard Ad Unit" shall mean a Banner, Badge, Button, Toolbox or Text Link.
(aaa) "Strategic Advertiser" shall mean any Person that enters into a Strategic Advertising Arrangement.
(bbb) "Strategic Advertising Arrangement" shall have the meaning set forth in Section 3.3 to this Agreement.
(ccc) "System" shall mean DoubleClick's proprietary DART software technology.
(ddd) "Term" shall have the meaning set forth in Section 5.1 to this Agreement.
(eee) "Text Link" shall mean a hypertext link in a fixed location on a Page designed for the delivery of Advertising that is, as of the Effective Date, a 1x1 pixel tracking gif
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(no more than two lines of text, no more than 20 characters per line), and shall include all natural evolutions thereof. A current sample of a Text Link is attached hereto as Exhibit A.
(fff) "Toolbox" shall mean a graphical element in a fixed location on a Page designed for the delivery of Advertising that is, as of the Effective Date, [***], and shall include all natural evolutions thereof. A current sample of a Toolbox is attached hereto as Exhibit E.
[***] Denotes language for which AltaVista has requested confidential treatment pursuant to the rules and regulations of the Securities Act of 1933, as amended.
(ggg) "Top Three" shall have the meaning set forth in Section 5.4 to this Agreement.
(hhh) "Trademark Use Guidelines" shall have the meaning set forth in Section 8.1 to this Agreement.
(iii) "Unpaid Advertising" or "Unpaid Advertisement" shall mean any Advertisement that is not a Paid Advertisement. Examples of "Unpaid Advertising" include (i) Advertisements that promote AltaVista, the Web Site, or their respective products and services, and (ii) Advertisements Bartered by AltaVista pursuant to Section 3.6.
(jjj) "U.S. Advertiser" shall mean an Advertiser for which the primary sales contact with respect to a given Advertising campaign is based in Advertiser's offices in the United States; provided, however, that if an Advertiser is represented by an advertising agency, the primary sales contact shall be deemed to be the agency's primary contact in the Advertiser's organization.
(kkk) "User" shall mean any Person that accesses the Web Site.
(lll) "Web Site" shall mean (a) the AltaVista Web site currently located at the URL http://www.altavista.com/ and (b) all other Web sites now or
------------------------- hereafter owned or controlled by AltaVista (but only for so long as such Web sites are owned or controlled by AltaVista), and all pages contained within each of those Web sites hosted anywhere in the world. For purposes of this definition, a Web site shall be deemed owned or controlled by AltaVista if AltaVista owns, directly or indirectly, more than 50% of the Person that owns the Web site. If, during the Term, AltaVista shall come to control additional web sites through acquisitions and such web sites are subject to agreements which existed prior to the acquisition and which prevent the inclusion of such web site in the arrangements set forth in this Agreement, then such web sites shall not constitute part of the "Web Site"; provided, however, that AltaVista shall use reasonable commercial efforts to have such web sites included in the arrangements set forth in this Agreement as soon as possible by either terminating the preexisting agreements or not renewing the preexisting agreements as they expire, as determined by AltaVista.
(mmm) "Year 1" shall mean the period from the Effective Date until December 31, 1999.
(nnn) "Year 2" shall mean the period from January 1, 2000 to December 31, 2000.
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(ooo) "Year 3" shall mean the period from January 1, 2001 through the termination of this Agreement.
(ppp) "Year 2 Excluded Advertisers" shall have the meaning set forth in Section 3.7 to this Agreement.
(qqq) "Year 3 Excluded Advertisers" shall have the meaning set forth in Section 3.7 to this Agreement.
(rrr) "Acquisition Notice" shall have the meaning set forth in Section 3.1(a) to this Agreement.
(sss) "Adjustment Commission" shall have the meaning set forth in Section 3.3(e) to this Agreement.
(ttt) "Advertising Communication" shall mean a discussion, meeting or other communication with an Advertiser concerning either a specific request for proposal, a specific proposal, or a specific purchase that includes Advertising. For purposes of this definition, "communication" shall include telephone calls, faxes, letters, and email messages.
(uuu) "Aggregate Designated Keywords Impressions" shall mean the aggregate Designated Keyword Impressions for a given period of time sold by either DoubleClick or AltaVista.
(vvv) "AltaVista Account" shall mean an Advertiser for whom AltaVista has the exclusive right to sell Advertising and where the primary sales contact with respect to the majority of the Advertiser's advertising budget [***]; provided, however, that if an Advertiser is represented by an advertising agency, the primary sales contact shall be deemed to be the agency's primary contact in the Advertiser's organization.
[***] Denotes language for which AltaVista has requested confidential treatment pursuant to the rules and regulations of the Securities Act of 1933, as amended.
(www) "Channel Report" shall have the meaning set forth in Section 3.9(b) to this Agreement.
(xxx) "CMGI Company" shall have the meaning set forth in Section 3.3(b) to this Agreement.
(yyy) "CMGI Company Advertisement shall have the meaning set forth in Section 3.1(b) to this Agreement.
(zzz) "Designated Keywords" shall mean the 500 keywords listed in Exhibit G. Exhibit G shall be completed by DoubleClick and delivered to AltaVista on or before December 1, 1999.
(aaaa) "Designated Keyword Impressions" shall mean the Impressions for Banners that are delivered on the Search Results Pages generated when a User has searched for any one of the Designated Keywords on any area or part of the Web Site (excluding searches when a Designated Keyword is combined with any other search term, typed incorrectly or is
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otherwise entered in a format that is not identical to the representation of the Designated Keyword in Exhibit G).
(bbbb) "DMZ Ad Unit" shall mean a hybrid graphical plus hypertext Advertising element on a Search Results Page designed for the delivery of Advertising that is, as of the Effective Date, [***] packaged with three lines of text and all natural evolutions thereof. The DMZ Ad Unit is designed as a single ad unit for reporting and delivery purposes and does not support reporting at a sub-item level.
[***] Denotes language for which AltaVista has requested confidential treatment pursuant to the rules and regulations of the Securities Act of 1933, as amended.
(cccc) "DoubleClick Account" shall mean an Advertiser for whom DoubleClick has the exclusive right to sell Advertising.
(dddd) "Engage" shall have the meaning set forth in Section 3.1(c) to this Agreement.
(eeee) "Engage Arrangement" shall have the meaning set forth in Section 3.3(c).
(ffff) "High Value Advertising" shall have the meaning set forth in Section 4.7 to this Agreement.
(gggg) "Red Report" shall have the meaning set forth in Section 3.9(b) to this Agreement.
(hhhh) "User Profile" shall mean the set of known, assumed or inferred attributes about a particular User which is created by DoubleClick as a result of applying its proprietary statistical models or selection techniques to User information in its data alliance database.
(iiii) "User Profile-Based Advertising" shall mean Advertising that is targeted to Users based on the User Profiles.
(jjjj) "White Label Advertising" shall have the meaning set forth in Section 3.1(c) to this Agreement.
ARTICLE II
DART SERVICE
2.1 DART Service.
------------
(a) Subject to the terms and conditions of this Agreement, DoubleClick hereby agrees to provide the DART Service to AltaVista for the Web Site during the Term. Except for static Advertising that is hard-coded into certain pages of the Web Site, all other Advertising placed on the Web Site by AltaVista or DoubleClick shall be delivered exclusively by DoubleClick through the DART Service. A description of the DART Service as of the date hereof is attached hereto as Exhibit B. AltaVista shall not use any other third party ad delivery service for the delivery of Advertising.
(b) DoubleClick grants to AltaVista the non-exclusive and non- transferable (except as permitted pursuant to Section 11.8) right to access and use the DART Service, which
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AltaVista can access and use on DoubleClick's Web servers by means of a unique password issued by DoubleClick, and for the purposes of: (i) performing projections of Advertising Impression inventories that might be available through the DART Service, (ii) uploading and storing Advertising for delivery by DoubleClick through the DART Service, (iii) selecting trafficking criteria for the delivery of Advertising to Users through the DART Service, and (iv) receiving reports of Advertising Impressions and other data related to the delivery of Advertising by the DART Service.
2.2 AltaVista's DART Service Obligations. AltaVista shall be responsible
------------------------------------ for soliciting Advertising, except to the extent such soliciting is conducted by DoubleClick on behalf of AltaVista pursuant to this Agreement. With respect to all Advertising sold by AltaVista that is delivered through the DART Service, AltaVista shall be responsible for trafficking Advertising (which shall include the input of Advertising into the System) and handling all inquiries of any type or nature. Trafficking of Advertising may be outsourced to DoubleClick at AltaVista's request and for additional fees (as set forth in Article IV below). With respect to all Advertising sold by AltaVista that is delivered through the DART Service, AltaVista shall obtain all necessary rights, licenses, consents, waivers and permissions from Advertisers and others to allow DoubleClick to store and deliver Advertising and otherwise operate the DART Service on AltaVista's behalf and on behalf of AltaVista's Advertisers, and to use any data provided to or collected by the System, and AltaVista agrees to comply with any further requirements of the ad insertion orders agreed with DoubleClick.
2.3 DoubleClick's DART Service Obligations. DoubleClick's sole
-------------------------------------- obligations in relation to the DART Service under this Agreement shall be (i) to make the System available to AltaVista, (ii) to deliver Advertising through the DART Service according to the trafficking criteria selected by AltaVista and AltaVista's Advertisers using the System and (iii) to provide training sessions explaining the proper use of the DART Service and the System.
2.4 Proprietary Rights and Restrictions. DoubleClick is the exclusive
----------------------------------- supplier of the DART Service and the exclusive owner of all right, title and interest in and to the System, all software, databases and other aspects and technologies related to the System and DART Service, including the System, and any enhancements thereto. AltaVista shall not use the System or any data thereby provided except pursuant to the limited rights expressly grante ...
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