EXHIBIT 10.15
ADVERTISING SERVICES AGREEMENT
This ADVERTISING SERVICES AGREEMENT (this "Agreement"), effective as of January 1, 1999 (the "Effective Date"), by and between DoubleClick Inc., a Delaware corporation ("DoubleClick") and Compaq Computer Corporation, a Delaware corporation (together with its direct and indirect subsidiaries and affiliates, "Compaq").
WHEREAS, DoubleClick and Compaq are parties to that certain Procurement and Trafficking Agreement, dated December 19, 1996, between DoubleClick and Digital Equipment Corporation (Compaq's predecessor-in-interest), as amended by Amendment No. 1, dated December 16, 1997 (collectively, the "Existing Agreement")
WHEREAS, DoubleClick and Compaq desire to replace the Existing Agreement and DoubleClick has agreed to provide certain advertising services to Compaq for the Alta Vista Web site currently located at the URL www.altavista.com (together with all Alta Vista content pages and any successor public Internet search and navigation Web site or pages, the "Web Site"), subject to certain terms and conditions;
(***)
(***) Denotes language for which AltaVista has requested confidential treatment pursuant to the rules and regulations of the Securities Act of 1933, as amended.
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 is hereby acknowledged, DoubleClick and Compaq, intending to be legally bound, hereby agree as follows:
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 Compaq in relation to the Web Site pursuant to Article III.
(b) "Advertiser" shall mean a Person who provides Advertising, 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.
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(d) "Advertising" or "Advertisement" shall mean material that (i) promotes a brand or products or services and (ii) is provided to Compaq (whether directly or through
DoubleClick) for delivery to Users. "Advertising" or "Advertisement" shall be classified either as a Standard Ad Unit or a Beyond-the-Banner Arrangement.
(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, 125x125 pixels (file size up to 5K bytes), 120x60 pixels (file size up to 2K or 3K bytes), 100x40 pixels (file size up to 2K bytes), 234x60 pixels (file size up to 6K bytes), or any other size in use prior to the Effective Date on any Page that is a DoubleClick Represented Page under this Agreement, and shall, in all cases, include all natural evolutions thereof. A current sample of a Badge is attached hereto as Exhibit A.
(j) "Bad Debt" shall mean receivables for billed Net Revenues in which collection has not been made and, in accordance with criteria set by Compaq, is deemed 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, 468x60 pixels (file size up to 12K bytes), and shall include all natural evolutions thereof. A current sample of a Banner is attached hereto as Exhibit A.
(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 Advertising on a Page or Pages other than 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.
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(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, 88x33 pixels (files size up to 2K bytes), and shall include all natural evolutions thereof. A current sample of a Button is attached hereto as Exhibit A.
(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) "Compaq" shall have the meaning set forth in the preamble to this Agreement.
(r) "Compaq 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 Compaq 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) 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 Standard Ad Units 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."
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(x) "DoubleClick" shall have the meaning set forth in the recitals to this Agreement.
(y) "DoubleClick Competitor" shall mean any Person that is primarily engaged in the business of third party online advertising sales and services; 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 and 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.
(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 3.8 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 have the meaning set forth in Section 3.2(b) to this Agreement.
(kk) "Local Ads" shall have the meaning set forth in Section 3.2(c) to this Agreement.
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(ll) "National Ads" shall have the meaning set forth in Section 3.2(a) to this Agreement.
(mm) "Net Payable" shall have the meaning set forth in Section 4.6 of this Agreement
(nn) "Net Revenue" shall mean (***)
(***) Denotes language for which AltaVista has requested confidential treatment pursuant to the rules and regulations of the Securities Act of 1933, as amended.
(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 Compaq 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 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 Compaq 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 3.11 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:
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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 Compaq 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 (file size up to 1K bytes; file size for text 500 bytes or less; 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, 131x190 pixels (file size up to 8K bytes), and shall include all natural evolutions thereof. A current sample of a Toolbox is attached hereto as Exhibit E.
(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 Compaq, the Web Site, or their respective products and services, and (ii) Advertisements Bartered by Compaq 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.
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(kkk) "User" shall mean any Person that accesses the Web Site.
(lll) "Web Site" shall have the meaning set forth in the recitals to this Agreement.
(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.
(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.
ARTICLE II
DART SERVICE
(a) Subject to the terms and conditions of this Agreement, DoubleClick hereby agrees to provide the DART Service to Compaq for the Web Site during the Term. Standard Ad Units placed on the Web Site by Compaq or DoubleClick shall be delivered exclusively by DoubleClick through the DART Service. Subject to the fees described in Article IV, DoubleClick agrees also to deliver through the DART Service those Beyond-the-Banner Arrangements as may be requested by Compaq. A description of the DART Service as of the date hereof is attached hereto as Exhibit B.
(b) DoubleClick grants to Compaq the non-exclusive and non-transferable (except as permitted pursuant to Section 11.8) right to access and use the DART Service, which Compaq 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 Standard Ad Unit Impression inventories that might be available through the DART Service, (ii) uploading and storing Standard Ad Units for delivery by DoubleClick through the DART Service, (iii) selecting trafficking criteria for the delivery of Standard Ad Units to Users, and (iv) receiving reports of Standard Ad Units Impressions and other data related to the delivery of Standard Ad Units by the DART Service.
2.2 Compaq's DART Service Obligations. Compaq shall be responsible for soliciting Advertising, except to the extent such soliciting is conducted by DoubleClick on behalf of Compaq pursuant to this Agreement. With respect to all Advertising sold by Compaq that is delivered through the DART Service, Compaq shall be responsible for trafficking Advertising
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(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 Compaq's request and for additional fees (as set forth in Article IV below). With respect to all Advertising sold by Compaq that is delivered through the DART Service, Compaq 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 Compaq's behalf and on behalf of Compaq's Advertisers, and to use any data provided to or collected by the System, and Compaq 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 Compaq, (ii) to deliver Advertising through the DART Service according to the trafficking criteria selected by Compaq and Compaq'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. Compaq shall not use the System or any data thereby provided except pursuant to the limited rights expressly granted in this Agreement. Compaq shall use the System only in accordance with reference manuals to be supplied by DoubleClick and only in accordance with DoubleClick's standard security procedures, as posted on the DoubleClick Web site or otherwise provided to Compaq. Compaq has the sole and exclusive right to use all data derived by its use of the DART Service, for any purpose related to Compaq's business with Advertisers, provided that DoubleClick may use and disclose the User data (other than personally-identifiable information) derived from Compaq's use of the DART Service pursuant to this Agreement only (i) for DoubleClick's reporting purposes (consisting of the compilation of aggregated statistics about the DART Service (e.g., the aggregate number of ads delivered) that may subsequently be provided to customers, potential customers and disclosed to the general public; (ii) if required by court order, law, or governmental agency (including but not limited to, the Securities and Exchange Commission); and (iii) to the extent necessary to integrate operation and management of the Services for the Web Site within the operation and management of the DART Service by DoubleClick for all its customers and otherwise for the DoubleClick Network.
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