SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant to
Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 20, 1999
DoubleClick Inc.
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(Exact Name of Registrant as Specified in its Charter)
Delaware
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(State or Other Jurisdiction of Incorporation)
000-23709 13-3870996
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(Commission File Number) (I.R.S. Employer Identification No.)
41 Madison Avenue, 32nd Floor 10010
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(Address of Principal Executive Offices) (Zip Code)
(212) 683-0001
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(Registrant's Telephone Number, Including Area Code)
N.A.
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(Former Name or Former Address, if Changed Since Last Report)
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Item 5. Other Events
On December 19, 1996 (as amended on December 16, 1997), DoubleClick
Inc., a Delaware corporation (the "Company"), and Compaq Computer
Corporation, a Delaware corporation ("Compaq"), entered into a
Procurement and Trafficking Agreement pursuant to which the Company
had the exclusive right to sell and deliver all advertising on
specified pages within the Alta Vista Web site. On January 20, 1999,
the Company changed its relationship with Compaq by entering into an
Advertising Services Agreement that supercedes the Procurement and
Trafficking Agreement. The new Advertising Services Agreement is
effective as of January 1, 1999, and is attached hereto as Exhibit
99.1. The information contained therein is incorporated herein by
reference.
Item 7. Financial Statements and Exhibits
(c) Exhibits
Exhibit Number Description
99.1 Advertising Services Agreement, effective as of January 1,
1999, by and between the Company and Compaq
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
DoubleClick Inc.
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(Registrant)
By: /s/ JEFFREY E. EPSTEIN
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Name: Jeffrey E. Epstein
Title: Chief Financial Officer
Dated: March 15, 1999
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;
(***)
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.
(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
(***) Denotes language for which the Company has requested confidential
treatment pursuant to the rules and regulations of the Securities Exchange Act
of 1934, as amended.
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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 (***)
(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:
(***) Denotes language for which the Company has requested confidential
treatment pursuant to the rules and regulations of the Securities Exchange Act
of 1934, as amended.
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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
2.1 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.
ARTICLE III
ADVERTISING SALES REPRESENTATION
3.1 Compaq's Reservation of Rights. Other than the rights expressly
granted to DoubleClick in this Article III, Compaq reserves to itself and its
Permitted Designees the sole and exclusive right to sell Advertising of any type
and nature on the Web Site.
3.2 Scope of Ad Sales Representation. During the Term, subject to the
limitations stated herein, DoubleClick and its authorized representatives,
licensees and assigns shall be Compaq's sole and exclusive representative with
respect only to the following types of
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Advertising for the following types of Advertisers, and shall have the exclusive
right to enter into agreements for such Advertising on behalf of Compaq:
(a) Standard Ad Units located on the Home Page, Search Results
Pages, Directory Pages, and subject to Section 3.7(a), Content Zone Pages,
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. Advertiser ("National Ads");
(b) Standard Ad Units and Beyond-the-Banner Arrangements on any
Page, offered to Non-U.S. Advertisers (the "International Ads"); and
(c) Standard Ad Units on any DoubleClick Represented Page, 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 ("Local Ads").
3.3 Exceptions. During the Term, DoubleClick's exclusive rights set forth
above shall be subject to the following exceptions, provided that Compaq may
only solicit and enter into the arrangements described in this Section 3.3
through its own or its Permitted Designees efforts:
(a) With respect to the International Ads, Compaq shall have the
right to enter into Beyond-the-Banner Arrangements with Non-U.S. Advertisers;
(b) With respect to the National Ads, Compaq shall have the right to
sell listings on Yellow Page-type Directory Pages, to the extent that such
Directory Pages are not currently in existence as of the date hereof;
(c) (***)
(d) (***)
(e) (***)
(***) Denotes language for which the Company has requested confidential
treatment pursuant to the rules and regulations of the Securities Exchange Act
of 1934, as amended.
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3.4 No Other Rights. Other than as set forth in this Article III,
DoubleClick shall not have the right to place Advertising on the Web Site.
3.5 New Web Site Areas. The parties recognize that Compaq will regularly
update the design and content of the Web Site. Compaq shall keep DoubleClick
informed of all planned changes to the Web Site. As early in the process as is
feasible, Compaq shall also identify to DoubleClick the additional Standard Ad
Units ("New Inventory") in any newly-created area of the Web Site ("New Web Site
Area"). Compaq and DoubleClick shall cooperate in identifying those portions, if
any, of the New Inventory that DoubleClick would have the right to sell on
behalf of Compaq and shall confirm any such arrangements by completing and
signing a New Inventory Addendum, based on the form of which that appears as
Exhibit C attached hereto. The parties will also determine and specify in the
New Inventory Addendum whether DoubleClick's right to act on behalf of Compaq in
respect of such portions of the New Inventory is exclusive, and the
circumstances under which Compaq could terminate DoubleClick's right to place
such portions of the New Inventory on behalf of Compaq.
3.6 Unsold Inventory. All unsold inventory of Standard Ad Units may be
Bartered by Compaq, subject to the fees set forth in Article IV.
3.7 Termination of Ad Sales Representation.
(a) (***)
(b) (***)
(***) Denotes language for which the Company has requested confidential
treatment pursuant to the rules and regulations of the Securities Exchange Act
of 1934, as amended.
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(c) (***)
3.8 Compaq's Ad Sales Service Obligations.
(a) Compaq agrees to effect all necessary HTML programming with
respect to the Web Site and Pages in accordance with the HTML modifications (the
"HTML Modifications") designated by DoubleClick so as to enable DoubleClick to
perform its obligations under this Agreement.
(b) At all times during the Term, each Search Results Page and
Directory Page shall include substantially the same number and type of Standard
Ad Units as were included on the corresponding or most closely analogous Search
Results Page or Directory Page prior to the Effective Date of this Agreement, as
illustrated on Exhibit A.
(c) Compaq agrees that DoubleClick has no responsibility to review
the contents of Pages or the Web Site.
(d) (***)
(***) Denotes language for which the Company has requested confidential
treatment pursuant to the rules and regulations of the Securities Exchange Act
of 1934, as amended.
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(e) Compaq acknowledges and agrees that all Standard Ad Units sold
by DoubleClick under the Existing Agreement for delivery after the Effective
Date shall be governed by the terms and conditions of this Agreement and Compaq
shall pay DoubleClick the DART Service fee, sales commission, billing and
collections fees and other fees specified under Article IV of this Agreement for
all such Standard Ad Units delivered after the Effective Date.
3.9 Dedicated Sales Specialists. Until the end of Year 2, no fewer than
four DoubleClick sales specialists, reasonably acceptable to Compaq, shall be
designated by DoubleClick as the Web Site's dedicated sales team. Promptly after
the Effective Date, DoubleClick shall use commercially reasonable efforts to
staff Web Site's dedicated sales team.
3.10 DoubleClick's Ad Sales Service Obligations.
(a) Use of Information. DoubleClick shall have the right to use for
DoubleClick's own use or for use in connection with potential Advertisers on the
Ad Sales Service, information concerning Pages, Impressions and Users accessing
Pages obtained through the Service, provided DoubleClick does not reproduce any
Pages without Compaq's prior consent.
(b) Reporting. In addition to the daily DART Service reports made
available to Compaq through DoubleClick's Web site (www.doubleclick.net),
DoubleClick shall furnish to Compaq on a monthly basis the following reports:
(i) a list of the Advertisers that have purchased Standard Ad Units through
DoubleClick, together with a summary of the nature of the order (type of
Standard Ad Unit and Impressions) and revenue generated from such Advertiser;
and (ii) a four-month and twelve-month forecast of the Standard Ad Units
scheduled to run on the Web Site. During the Term, DoubleClick agrees also to
provide Compaq with such other reports as Compaq may reasonably request;
provided that DoubleClick shall not be required to provide reports that are, in
DoubleClick's view, unduly burdensome to prepare. All reports and data provided
by DoubleClick to Compaq are subject to the confidentiality obligations set
forth herein, and access to such reports and data online is subject to
DoubleClick's customary security procedures.
(c) Excluded Advertisers. DoubleClick agrees (i) in Year 2, not to
solicit any of the Year 2 Excluded Advertisers for the placement of Standard Ad
Units on the Web Site; and (ii) in Year 3, not to solicit any of the Year 3
Excluded Advertisers for the placement of Standard Ad Units on the Web Site.
DoubleClick shall have the right to solicit, in Year 3, those Year 2 Excluded
Advertisers that are not also Year 3 Excluded Advertisers.
3.11 Rate Card. During the Term of this Agreement, Compaq, in consultation
with DoubleClick, shall set the rate card for all Advertising sold by
DoubleClick. The current rate card as of the Effective Date is attached hereto
as Exhibit D. In addition, Compaq, in consultation with DoubleClick, shall set
the minimum and maximum term for Advertiser Contracts and such other Advertising
sales policies and parameters for sales of Advertising on the Web Site as Compaq
may notify DoubleClick in writing from time to time, which policies and
parameters shall include credit and collections policies applicable to
Advertisers (collectively, the "Sales Policies"). Except as otherwise provided
in this Agreement, the rate card and Sales Policies for Advertising to be sold
by DoubleClick on behalf of Compaq must be
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the same as those applied by Compaq to its own Advertising sales for the Web
Site. The parties acknowledge that the credit policies included in the Sales
Policies are not applicable to Advertising sales made by DoubleClick on Compaq's
behalf prior to the date this Agreement was fully executed by the parties.
ARTICLE IV
COMPENSATION
4.1 Payments. During the Term of this Agreement, Compaq shall pay to
DoubleClick (i) a DART Services fee for all advertising delivered by DoubleClick
to the Web Site, (ii) a sales commission based on the Net Revenues generated
from all Standard Ad Units sold by DoubleClick on behalf of Compaq, for all
sales, customer support and other services (other than billing and collections
services) that DoubleClick performs on behalf of Compaq and (iii) a billing and
collections fee for all billing and collections services performed by
DoubleClick on behalf of Compaq in relation to Standard Ad Units sold by
DoubleClick, based on the Net Revenues generated from such Standard Ad Units.
4.2 DART Services Fee.
(a) Delivery of U.S. Ads. Compaq shall pay a DART fee for all
Advertising that is delivered by DoubleClick during the Term to the Web Site.
For all Advertising delivered by servers located in the U.S., DoubleClick shall
charge one of the following, as applicable:
(i) (***)
(ii) (***)
(iii) (***)
(b) Tracking and Trafficking Fees. In addition to one of the
payments required by Section 4.2(a) above, Compaq shall also pay the following
fees to the extent that the following Services from DoubleClick are utilized
during the Term:
(i) (***)
(ii) (***)
(c) Delivery of International Ads. Due to varying and higher
bandwidth costs outside of the U.S., different DART fees shall be charged for
Advertising delivered during the Term by servers located outside of the U.S. The
Year 1 international DART fee for each country is set forth on Schedule 1
attached hereto. Compaq shall have the right to designate the country
(***) Denotes language for which the Company has requested confidential
treatment pursuant to the rules and regulations of the Securities Exchange Act
of 1934, as amended.
13
<PAGE>
from which International Ads are served. Thereafter, commencing on each December
1 during the Term (other than on December 1, 2000), Compaq and DoubleClick shall
meet to determine the international DART fee for Year 2 or Year 3, as the case
may be.
(d) Pricing for Delivery of Ads Placed by Compaq. The parties shall
meet, commencing on December 1, 1999, to determine whether the DART fees
specified in Section 4.2(a) to be in effect for Year 2 for the delivery of
Advertising placed by Compaq should be adjusted. The parties would also meet,
commencing on December 1, 2000, to determine whether the DART fees in effect in
Year 3 should be adjusted.
4.3 Ad Sales Commission and Billing/Collections Fees. Compaq shall pay to
DoubleClick (i) the sales commissions set forth below for all the Ad Sales
Service, support, and other services (other than billing and collections
services) that DoubleClick performs on behalf of Compaq and (ii) the billing and
collections fees set forth below for all billing and collections services
performed by DoubleClick in relation to Standard Ad Units sold by DoubleClick on
behalf of Compaq, in each case based on the Net Revenues generated from all
Standard Ad Units sold by DoubleClick on behalf of Compaq:
- --------------------------------------------------------------------------------
Billing and Sales Commission to DoubleClick
Collections ---------------------------------------------
Period During Term Fee National Ads International Ads Local Ads
- --------------------------------------------------------------------------------
Year 1 (***)
- --------------------------------------------------------------------------------
Year 2 (***)
- --------------------------------------------------------------------------------
Year 3 (***)
- --------------------------------------------------------------------------------
All sales commissions and billing and collections fees based on Net Revenue
shall be determined using the above chart and based upon the date upon which the
Standard Ad Units are sold. If a campaign continues from one calendar year into
the next, the rates applicable at the start of the campaign shall apply for the
whole campaign. For National Ads sold before any termination by Compaq of
DoubleClick's rights under this Agreement, DoubleClick shall be entitled to
receive the sales commission and billing and collections fees for those National
Ads over the life of the campaign, even if the campaign continues to run after
the effective date of Compaq's termination of those rights.
4.4 (***)
(***) Denotes language for which the Company has requested confidential
treatment pursuant to the rules and regulations of the Securities Exchange Act
of 1934, as amended.
14
<PAGE>
4.5 Training; Sales Engineer Services. DoubleClick shall provide one
training session on the DART Service at DoubleClick's offices in New York City
at no charge to Compaq. All additional training and other DoubleClick personnel
days shall be charged for at DoubleClick's customary rates.
4.6 (***)
(***) Denotes language for which the Company has requested confidential
treatment pursuant to the rules and regulations of the Securities Exchange Act
of 1934, as amended.
15
<PAGE>
4.7 Opportunity Cost. All Advertising placed by Compaq shall normally be
subject to existing Advertising placements made by DoubleClick. In the unusual
event that (i) DoubleClick is required by Compaq to cancel any Advertising
campaign sold by DoubleClick on behalf of Compaq to avoid a conflict with an
advertising agreement entered into by Compaq and (ii) no alternative Advertising
programs acceptable to Advertiser are available through DoubleClick, Compaq
shall remit to DoubleClick the sales commission to which DoubleClick would have
been entitled had the campaign run its full course, by the dates such payments
would have been due hereunder assuming the cancelled Advertising had been paid
when due and Compaq shall be solely responsible for any compensation due to the
Advertiser whose Advertising campaign has been cancelled. However, the foregoing
provision shall not apply to Advertising that Compaq has identified to
DoubleClick in good faith in advance in a written notice as being unavailable,
if DoubleClick nonetheless sells such Advertising after its receipt of such
notice; it being understood that in this instance only, DoubleClick shall be
solely responsible for any compensation due to the Advertiser whose Advertising
campaign has been cancelled.
4.8 (***)
4.9 Compaq's Costs. Compaq shall be solely responsible for any costs or
expenses it incurs in connection with the Services or performance of its
obligations under this Agreement including, without limitation, expenses
associated with any HTML programming and linking Pages to the DART Service.
4.10 DoubleClick's Costs. DoubleClick shall be solely responsible for any
costs or expenses it incurs in connection with the provision of the Services or
performance of its
(***) Denotes language for which the Company has requested confidential
treatment pursuant to the rules and regulations of the Securities Exchange Act
of 1934, as amended.
16
<PAGE>
obligations under this Agreement including, without limitation, expenses
associated with any costs of operating and maintaining the DART Service.
ARTICLE V
TERM & TERMINATION
5.1 Term. This Agreement shall be for a term of three (3) years from the
Effective Date, unless terminated earlier in accordance with the terms set forth
below or until the end of the notice period required by Section 5.2 (the
"Term"). The Term shall be automatically renewed for additional twelve (12)
month periods unless there is a notice pursuant to Section 5.2 below.
5.2 Notice of Non-Renewal. In the event either party decides not to renew
this Agreement at the expiration of three (3) years from the Effective Date, or
at the expiration of any renewal period, the party that desires to terminate
shall provide the other with notice of such decision no earlier than the
commencement of Year 3 and no later than (i) ninety (90) days prior to the
expiration of Year 3, for termination at the end of Year 3 and (ii) 180 days
prior to the expiration of any renewal term; provided, however, that if Compaq
fails to give the notice required by this Section, the Term and this Agreement
shall continue until DoubleClick has received the applicable period of days
advance written notice of Compaq's decision not to renew.
5.3 Termination for Breach. In the event of a material breach of a
material provision of this Agreement, the non-breaching party may give written
notice of such breach to the breaching party and if the breaching party fails to
cure such breach within ninety (90) days of receipt of such notice, the
non-breaching party may terminate this Agreement once the cure period has
expired.
5.4 Termination for Certain Changes. In addition to its right to terminate
specified above, Compaq shall also have the right to terminate this Agreement if
any of the following events occur:
(a) DoubleClick is found by reputable independent sources on the
basis of verifiable data based on an analysis of a period of not less than 180
days, to no longer be one of the top three Centralized Internet Ad Delivery
Companies measured on the basis of the aggregate number of Impressions served by
each Centralized Internet Ad Delivery Companies in such period (the "Top Three")
(b) DoubleClick ceases to operate or provide technical support for
the DART Service for a period in excess of five (5) business days;
(c) DoubleClick is adjudged insolvent or bankrupt;
(d) Institution of any proceeding by DoubleClick seeking relief,
reorganization or arrangement under any laws relating to insolvency;
17
<PAGE>
(e) Institution of any proceeding against DoubleClick seeking
relief, reorganization or arrangement under any laws relating to insolvency that
is not dismissed within sixty (60) days;
(f) The making of any assignment for the benefit of creditors;
(g) Upon the appointment of a receiver, liquidator or trustee of any
of DoubleClick's property or assets, or upon liquidation, dissolution or winding
up of the DoubleClick's business; or
(h) In the event that a Person who owns, either directly or
indirectly, a Web site that is widely regarded by recognized Internet industry
analysts as a direct competitor of the Web Site acquires (i) through a merger or
consolidation pursuant to which the stockholders of DoubleClick immediately
prior to such merger or consolidation will not own, immediately after such
merger or consolidation, at least forty percent (40%) of the voting power of the
surviving Person's voting securities, whether or not such Person is DoubleClick,
(ii) securities representing a majority of DoubleClick's voting securities as a
result of a tender or exchange offer, open market purchase, privately negotiated
purchases, share exchange, extraordinary dividend, acquisition, disposition or
recapitalization (or series of related transactions of such nature) (other than
a merger or consolidation), and (iii) all or substantially all of DoubleClick's
assets.
5.5 Effect of Termination.
(a) Notwithstanding anything to the contrary contained herein, in
the event this Agreement is terminated and DoubleClick, prior to said
termination, has entered into any Advertiser Contracts for the delivery of
Standard Ad Units to the Pages, the duration of which Advertiser Contracts
extend beyond the date on which this Agreement has been terminated, and such
Standard Ad Units continue to be delivered after the termination of this
Agreement, then DoubleClick shall be entitled to receive (i) sales commissions
and billing and collections fees for such Standard Ad Units calculated on the
basis of the applicable sales commission and billing and collections fees that
would have been due under Section 4.3 above as of the effective date of the
Advertising Contract for the type of Standard Ad Units in question and (ii)
where the parties mutually agree that DoubleClick should continue to deliver
said Standard Ad Units on behalf of Compaq, the applicable DART Service fees
specified in Section 4.2.
(b) The following provisions of this Agreement and any causes of
action arising in relation to this Agreement prior to termination, shall survive
such termination: Sections 7.1 through 7.3, 9.1, 9.2, and 10.1 and Article V.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1 Compaq's Representations and Warranties. Compaq represents and
warrants at all times that Compaq (i) owns the Web Site, and (ii) has the right
and full power and authority to enter into this Agreement, to grant the rights
herein granted and fully to perform its obligations hereunder. Compaq
acknowledges that the System can be used to target, measure and traffic
advertisements in many different ways and based on many difference types of
data. Compaq represents and warrants that it will not use the System or the DART
Service in a way or
18
<PAGE>
for any purpose that infringes or misappropriates any third party's copyrights,
patents issued as of the Effective Date, trademarks or trade secrets.
6.2 DoubleClick's Representations and Warranties. DoubleClick represents
and warrants that (i) it owns the DART Service and the System, (ii) it has the
right and full power and authority to enter into this Agreement, to grant the
rights herein granted and fully to perform its obligations hereunder, and (iii)
the System was developed by DoubleClick without infringement or misappropriation
of any third party's copyrights, U.S. patents issued as of the Effective Date,
trademarks or trade secrets.
ARTICLE VII
INDEMNITIES
7.1 Compaq's Indemnities. Compaq agrees to indemnify and hold DoubleClick
and its Affiliates, officers, directors, employees and agents (each a
"DoubleClick Indemnitee") harmless from and against any and all claims, actions,
losses, damages, liability, costs and expenses (including, without limitation,
reasonable attorneys' fees and disbursements incurred by a DoubleClick
Indemnitee in any action between Compaq and the DoubleClick Indemnitee, or
between the DoubleClick Indemnitee and any third party or otherwise) arising out
of or in connection with any breach of any of Compaq's representations,
warranties or obligations set forth in this Agreement. DoubleClick shall
promptly notify Compaq of all claims and proceedings related thereto of which
DoubleClick becomes aware.
7.2 DoubleClick's Indemnities. DoubleClick agrees to indemnify and hold
Compaq and its Affiliates, officers, directors, employees and agents (each a
"Compaq Indemnitee") harmless from and against any and all claims, actions,
losses, damages, liability, costs and expenses (including, without limitation,
reasonable attorneys' fees and disbursements incurred by a Compaq Indemnitee in
any action between DoubleClick and the Compaq Indemnitee, or between the Compaq
Indemnitee and any third party or otherwise) arising out of or in connection
with any breach of DoubleClick's representations, warranties or obligations set
forth in this Agreement. Compaq shall promptly notify DoubleClick of all claims
and proceedings related thereto of which Compaq becomes aware.
7.3 Procedure. The indemnitee ("Indemnitee") that intends to claim
indemnification under this Agreement shall promptly notify the other party (the
"Indemnitor") of any claim, demand, action or other proceeding for which the
Indemnitee intends to claim such indemnification, and the Indemnitor shall have
the right to participate in, and, to the extent the Indemnitor so desires, to
assume sole control of the defense thereof with counsel selected by the
Indemnitor; provided, however, that the Indemnitee shall have the absolute right
to retain its own counsel, with the fees and expenses to be paid by the
Indemnitee. The indemnity obligations under this Agreement shall not apply to
amounts paid in settlement of any loss, claim, damage, liability or action if
such settlement is effected without the consent of the Indemnitor, which consent
shall not be unreasonably withheld or delayed. The failure to deliver notice to
the Indemnitor within a reasonable time after the commencement of any such
action, if prejudicial to Indemnitor's ability to defend such action, shall
relieve the Indemnitor of any liability to the Indemnitee under this Article
VII. The Indemnitee, its employees, agents, officers, directors and
19
<PAGE>
partners shall cooperate fully with the Indemnitor and its legal representatives
in the investigation of any action, claim or liability covered by an
indemnification from the Indemnitor.
ARTICLE VIII
ANCILLARY OBLIGATIONS
8.1 Web Site Co-Marketing. Each party shall have the right to create
promotional materials for the Web Site and Advertising on the Web Site, provided
that each party's use of the other party's trade name and trademarks is subject
to (i) the other party's approval, which shall not be unreasonably withheld or
delayed and (ii) compliance with the other party's standards and guidelines as
to proper use of such party's trade name and trademarks ("Trademark Use
Guidelines"). Each party's Trademark Use Guidelines are attached hereto as
Exhibits E-1 and E 2. All use of the other party's trade name and trademarks is
by way of license only and only for the limited purposes of creating and
distributing the promotional materials during the Term. Each party shall comply
with the requests of the other party in relation to correct usage of the other
party's trademarks and shall promptly make any changes to the use being made of
the other party's trademarks and trade names if such change is requested by
other party.
8.2 Non-Solicitation. During the Term and for a one-year period following
expiration or termination of this Agreement:
(a) Compaq agrees for itself and for its Affiliates not to (i)
solicit for employment (whether directly or indirectly) any employee of
DoubleClick or (ii) employ any former employee of DoubleClick within sixty (60)
days of such former employee leaving DoubleClick; and
(b) DoubleClick agrees not to (i) solicit for employment (whether
directly or indirectly) any employee of Compaq or (ii) employ any former
employee of Compaq within sixty (60) days of such former employee leaving the
Compaq.
ARTICLE IX
DISCLAIMERS AND LIMITATIONS ON LIABILITY
9.1 WARRANTY DISCLAIMERS.
(a) DOUBLECLICK DISCLAIMER. EXCEPT AS SET FORTH IN THIS AGREEMENT,
DOUBLECLICK MAKES NO WARRANTIES OF ANY KIND TO ANY PERSON WITH RESPECT TO THE
SERVICES, THE SYSTEM, ANY ADVERTISING OR ANY DATA SUPPLIED, WHETHER EXPRESS OR
IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR NONINFRINGEMENT.
(b) COMPAQ DISCLAIMER. EXCEPT AS SET FORTH TN THIS AGREEMENT, COMPAQ
MAKES NO WARRANTIES OF ANY KIND TO ANY PERSON WITH RESPECT TO THE WEB SITE, ANY
ADVERTISING OR ANY DATA SUPPLIED, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR
NONINFRINGEMENT.
20
<PAGE>
9.2 Limitation and Exclusion of Liability. Neither party shall be liable
to the other party, any Advertisers or any other third party for any loss, cost,
damage or expense incurred in connection with the unavailability or
inoperability of the System, the Services or the Internet, technical
malfunction, computer error or loss or corruption of data, or other injury,
damage or disruption of any kind related thereto. In no event shall either party
be liable for any indirect, incidental, consequential, special or exemplary
damages, including, but not limited to, loss of profits, or loss of business
opportunity, even if such damages are foreseeable and whether or not the other
party has been advised of the possibility thereof. Except in relation to a claim
against a party based on its breach of its representations and warranties in
this Agreement as to infringement and misappropriation of third party
copyrights, patents, trademarks or trade secrets, each party's maximum aggregate
liability shall not exceed the total amount paid by Compaq to DoubleClick under
this Agreement or the Existing Agreement during the twelve (12) month period
prior to the first date the liability arose. In all Advertiser Contracts the
parties shall use reasonable efforts to include a provision that will state that
the other party is a third party beneficiary of any disclaimers and limitations
or exclusions of liability that such party has agreed to with the Advertiser in
the Advertiser Contract.
ARTICLE X
CONFIDENTIALITY
10.1 Confidentiality. The terms of this Agreement and information and data
that either party has received or will receive from the other party about the
Services, the System and other matters relating to the respective businesses of
the parties is proprietary and confidential information of the disclosing party
("Confidential Information"), including without limitation any information that
is marked as "confidential" or should be reasonably understood to be
confidential or proprietary to the disclosing party and any reference manuals
compiled or provided hereunder. Each party agrees that for the Term and for two
(2) years thereafter, it will not disclose to any third party nor use for any
purpose not permitted under this Agreement any Confidential Information
disclosed to it by the other party. The nondisclosure obligations set forth in
this Section shall not apply to information that the receiving party can
document is generally available to the public (other than through breach of this
Agreement by the receiving party) or was already lawfully in the receiving
party's possession at the time of receipt of the information from the disclosing
party.
ARTICLE XI
GENERAL PROVISIONS
11.1 Independent Contractor Status. Each party shall be and act as an
independent contractor and not as partner, joint venturer or agent of the other.
11.2 Governing Law. This Agreement shall be governed by, and construed in
accordance with the laws of the State of New York, without regard to the
principles of conflicts or choice of law of any jurisdiction.
11.3 Dispute Resolution. The parties shall attempt to settle any claim or
controversy arising out of this Agreement through consultation and negotiation
in good faith and spirit of mutual cooperation. In the event that any dispute
arises between the parties in connection with
21
<PAGE>
any subject matter of this Agreement, the dispute will be referred to a
senior-level manager of each party involved in the day-to-day performance of
this Agreement, who shall promptly meet and endeavor to resolve the dispute in a
timely manner. In the event such individuals are unable to resolve such dispute
within ten (10) days from the commencement of the dispute, the matter shall be
referred to the Chief Executive Officer ("CEO") of each party, who shall
promptly meet and endeavor to resolve the dispute. In the event that the
respective CEOs of the parties are unable to resolve such dispute within ten
(10) days, the dispute shall be deemed an unresolved dispute and either party
may commence litigation in a court having proper jurisdiction to resolve such
dispute.
11.4 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
only to the minimum extent necessary without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provisions in any other jurisdiction.
11.5 Force Majeure. No failure or omission by the parties hereto in the
performance of any obligation of this Agreement shall be deemed a breach of this
Agreement nor create any liability if the same shall arise from any cause or
causes beyond the control of the parties, including but not limited to the
following which, for the purposes of this Agreement, shall be regarded as beyond
the control of the party in question: acts of God, acts or omissions of any
government or any rules, regulations or orders of any governmental authority or
any officer, department, agency or instrument thereof; fire, storm, flood,
earthquake, accident, acts of the public enemy, war, rebellion, Internet brown
out, insurrection, riot, invasion, strikes, or lockouts.
11.6 Notices. All notices, demands and other communications provided for
or permitted hereunder shall be made in writing and shall be by registered or
certified first-class mail, return receipt requested, telecopier, courier
service or personal delivery:
If to DoubleClick, to:
DoubleClick Inc.
41 Madison Avenue
New York, NY 10010
Attention: Chief Executive Officer
Telecopier No.: (212) 889-0029
With a copy to:
DoubleClick Inc.
41 Madison Avenue
New York, NY 10010
Attention: General Counsel
Telecopier No.: (212) 497-4397
22
<PAGE>
If to Compaq, to:
Compaq Computer Corporation
P0 Box 692000
MS 130705
Houston, TX 77269-2000
Attention: General Manager of Alta Vista
Telecopier No.: (281) 514-2962
With a copy to:
Compaq Computer Corporation
P0 Box 692000
MS 110701
Houston, TX 77269-2000
Attention: Law Department
Telecopier No.: (281) 514-8332
or to such other address or attention of such other Person as such
party shall advise the other party in writing.
All such notices and communications shall be deemed to have been duly given when
delivered by hand, if personally delivered; when delivered by courier, if
delivered by commercial courier service; five (5) business days after being
deposited in the mail, postage prepared, if mailed; and when receipt is
mechanically acknowledged, if telecopied.
11.7 Entire Agreement. This Agreement, together with the schedules,
exhibits and addenda hereto, is intended by the parties as a final expression of
their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth herein. This Agreement, together with
the schedules, exhibits and addenda hereto, supercedes and terminates all prior
agreements and understandings between the parties with respect to such subject
matter, including, but not limited to the Existing Agreement.
11.8 Successors and Assigns; Third Party Beneficiaries. This Agreement
shall inure to the benefit of and be binding upon the successors and permitted
assigns of the parties hereto. This Agreement and the rights hereunder are not
transferable without the prior written consent of the non-assigning party;
provided, however, that DoubleClick may assign this Agreement and its rights and
obligations hereunder to (a) a purchaser of substantially all of DoubleClick's
stock or business by sale, merger or otherwise and (b) an Affiliate of
DoubleClick; and provided, further, however, that Compaq may assign this
Agreement and its rights and obligations hereunder to (a) a Person who acquires
the Web Site or the Web Site's assets or business, by sale, merger or otherwise
or (b) an Affiliate of Compaq. Compaq further covenants that it shall not in any
circumstance transfer the Web Site or its business involving the Web Site to any
Affiliate or third party, without also assigning to such Affiliate or third
party (if approved by DoubleClick) Compaq's rights and obligations under this
Agreement. Except as provided in Article VII, no
23
<PAGE>
Person other than the parties hereto and their successors and permitted assigns
is intended to be a beneficiary of this Agreement. No assignment to any
permitted assign shall be effective until such permitted assign agrees in
writing to be bound by and comply with the terms of this Agreement.
11.9 Amendment and Waiver. No failure or delay on the part of any party
hereto in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise hereof or the exercise of
any other right, power or remedy. The remedies provided herein are cumulative
and are not exclusive of any remedies that may be available to the parties
hereto at law, in equity or otherwise. Any amendment, supplement or modification
of or to any provision of this Agreement, any waiver of any provision of this
Agreement and any consent to any departure by the parties hereto from the terms
of any provision of this Agreement, shall be effective only if it is made or
given in writing and signed by each of the parties hereto.
11.10 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
11.11 Publicity. None of the parties hereto shall issue a press release or
public announcement or otherwise make any disclosure concerning this Agreement
or the terms hereof, without prior approval by the other party hereto (which
approval shall not be unreasonably withheld); provided, however, that nothing in
this Agreement shall restrict any party from disclosing information (a) that is
already publicly available, except as a result of a breach of this provision by
the disclosing party, (b) that is required to be disclosed by law, provided that
if such disclosing party is required to file a copy of this Agreement with a
governmental authority, such party shall seek confidential treatment to the
extent reasonably available and (c) to its attorney's accountant, consultants
and other advisers. Prior to issuing any press release, public announcement or
disclosure, the disclosing party will deliver a draft of such press release,
public announcement or disclosure to the other party and shall give such party a
reasonable opportunity to comment thereon.
DOUBLECLICK INC. COMPAQ COMPUTER CORPORATION
Signature: /s/ Kevin O'Connor Signature: /s/ Rod Schrock
--------------------------- ----------------------
Kevin O'Connor Printed Name: Rod Schrock
Chief Executive Officer -------------------
Title: Senior Vice President
--------------------------
Dated: January 18, 1999. Dated: January 18, 1999.
24
<PAGE>
Exhibits
- --------
A Examples of Badges, Banners, Buttons, Text Links and Toolboxes
B Description of the DART Service
C Form of New Inventory Addendum
D Rate Card
E-l Compaq Trademark Use Guidelines
E-2 DoubleClick Trademark Use Guidelines
Schedule
- --------
1 Advertising Order
<PAGE>
EXHIBIT A
EXAMPLES OF BADGES, BANNERS, BUTTONS, TEXT LINKS AND TOOLBOXES
<PAGE>
Home Page Standard Ad Units
[GRAPHIC]
Search Results Page Standard Ad Units
[GRAPHIC]
1
<PAGE>
Directory Page Standard Ad Units
(AV Category)
[GRAPHIC]
AD UNIT SPECIFICATIONS
<TABLE>
<S> <C> <C> <C>
- ------------------------------------------- Ad Type: Standard Banner
Visit IBM. Business Center Demensions: 468 x 60 Standard Banner
Enter to win an IBM ThinkPad.(R) click here File Size: 12K max Appears on every AV Category page. May be targeted with
- ------------------------------------------- Animation: 3 loops max keywords, or served as run of site inventory.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------ Ad Type: Badge Badge
DATEK [LOGO] Demensions: 120 X 60 Appears directly to the right of the directories. On
ONLINE File Size: 3K max the results pages it migrates to the left margin. This
- ------------ Animation: 3 loops max is a fixed Badge associated with a specific Category
and is served on the page whenever a user enters that
Category or associated Sub-Categories. A maximum of
three will appear on the page.
- ------------------------------------------------------------------------------------------------------------------------------------
GetSmart"
- ---------------------- Ad Type: Toolbox Toolbox
Loan Center Demensions: 131 x 190 Available on a Category exclusive basis that takes the
Home Loops File Size: 8K max place of the three Badges. Advertisers can use the
Refinance Your Home Animation: None Toolbox to "lock-out" competitors in a Category.
Comsolidate Your Debt Image Maps: Available
Business Financing
- ----------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
2
<PAGE>
Example of a Button
[GRAPHIC]
3
<PAGE>
EXHIBIT B
DESCRIPTION OF THE DART SERVICE
<PAGE>
DART
DoubleClick
www.doubleclick.net
Advertising Management Product Capabilities
- --------------------------------------------------------------------------------
Feature DoubleClick Dart
- --------------------------------------------------------------------------------
Targeting Capabilities
- --------------------------------------------------------------------------------
Search keywords/phrases Yes
- --------------------------------------------------------------------------------
Domain type (.com, .edu, etc.) Yes
- --------------------------------------------------------------------------------
SIC Code Yes
- --------------------------------------------------------------------------------
Number of employees Yes
- --------------------------------------------------------------------------------
Company revenue Yes
- --------------------------------------------------------------------------------
Editorial Keywords Yes
- --------------------------------------------------------------------------------
Geography (country, state, area code, zip code)
Yes
- --------------------------------------------------------------------------------
Time of day relative to server Yes
- --------------------------------------------------------------------------------
Time of day relative to user Yes
- --------------------------------------------------------------------------------
Browser type Yes
- --------------------------------------------------------------------------------
Operating system Yes
- --------------------------------------------------------------------------------
Internet Service Provider (ISP) Yes (int'l included)
- --------------------------------------------------------------------------------
On-line Service Provider (OSP) Yes (int'l included)
- --------------------------------------------------------------------------------
Affinity targeting Yes
- --------------------------------------------------------------------------------
Target by site Yes
- --------------------------------------------------------------------------------
Target by page Yes
- --------------------------------------------------------------------------------
Editorial targeting (page content) Yes
- --------------------------------------------------------------------------------
Psychographic targeting Yes
- --------------------------------------------------------------------------------
Demographic (registration) targeting Yes
- --------------------------------------------------------------------------------
Additional Ad Placement Criteria
- --------------------------------------------------------------------------------
Frequency of exposure control Yes
- --------------------------------------------------------------------------------
Single user, series exposure (<15 banners) Yes
- --------------------------------------------------------------------------------
Automatic CPM biasing Yes
- --------------------------------------------------------------------------------
Control speed of campaign delivery Yes
- --------------------------------------------------------------------------------
Cost per click Yes
- --------------------------------------------------------------------------------
Reporting
- --------------------------------------------------------------------------------
On-line advertiser reports Most detailed report in industry,
updated daily
- --------------------------------------------------------------------------------
On-line advertising summary Updated every 15 minutes
- --------------------------------------------------------------------------------
On-line site reports Updated daily
- --------------------------------------------------------------------------------
On-line management reports Yes
- --------------------------------------------------------------------------------
Ad alarms (notification of possible problems) Yes
- --------------------------------------------------------------------------------
Reports accessible from Web Yes
- --------------------------------------------------------------------------------
Customizable via Web interface Yes
- --------------------------------------------------------------------------------
Inventory Management
- --------------------------------------------------------------------------------
Inventory forecasting, including keywords Yes
- --------------------------------------------------------------------------------
Where inventory is unavailable, displays Yes
contending ads
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
Feature DoubleClick Dart
- --------------------------------------------------------------------------------
On-line order entry/changes Yes
- --------------------------------------------------------------------------------
Segmentation of inventory so that only Yes
designated affiliate sites/employees may view
and sell
- --------------------------------------------------------------------------------
Alternatives for unsold space Direct, house ads, paid ads
- --------------------------------------------------------------------------------
Additional Features
- --------------------------------------------------------------------------------
Customizable UI to facilitate user-defined Yes
content categories
- --------------------------------------------------------------------------------
Access to raw data files by FTP Yes
- --------------------------------------------------------------------------------
Support for secure servers Yes
- --------------------------------------------------------------------------------
Delivery of all enhanced creative Yes
- --------------------------------------------------------------------------------
Sales force management Yes
- --------------------------------------------------------------------------------
Assign different levels of access to different Yes
users
- --------------------------------------------------------------------------------
Audit log of all changes to placements Yes
- --------------------------------------------------------------------------------
Online insertion orders Yes
- --------------------------------------------------------------------------------
Automated email alerts Yes
- --------------------------------------------------------------------------------
Automatic detection/stripping of fraudulent Yes
activity
- --------------------------------------------------------------------------------
Additional Features: International
- --------------------------------------------------------------------------------
Supports multiple languages Japanese, Spanish
- --------------------------------------------------------------------------------
Supports multiple currencies Yes
- --------------------------------------------------------------------------------
Automated cross-currency bill settlement Yes
- --------------------------------------------------------------------------------
Enhanced international domain targeting Yes
- --------------------------------------------------------------------------------
Value Added Products
- --------------------------------------------------------------------------------
Creative testing Test It! (included)
- --------------------------------------------------------------------------------
Lead/sale conversion report Spotlight (included)
- --------------------------------------------------------------------------------
Biasing of banners to best-performing pages Click Boosters
- --------------------------------------------------------------------------------
Accounts for revenue splits on co-branded Syndicate
pages
- --------------------------------------------------------------------------------
Service
- --------------------------------------------------------------------------------
Software and equipment DoubleClick service center
- --------------------------------------------------------------------------------
Problem resolution 24 hour service
- --------------------------------------------------------------------------------
Redundancy Yes
- --------------------------------------------------------------------------------
Scaleable Yes
- --------------------------------------------------------------------------------
Audit Included
- --------------------------------------------------------------------------------
Volume Unlimited
- --------------------------------------------------------------------------------
Accounting
- --------------------------------------------------------------------------------
Generation of flat files compatible with standard Yes
accounting software
- --------------------------------------------------------------------------------
References
- --------------------------------------------------------------------------------
# of clients (network + DART) 100+
- --------------------------------------------------------------------------------
# of sites served 1,000+
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT C
FORM OF NEW INVENTOR ADDENDUM
For purposes of the Advertising Services Agreement between DoubleClick Inc. and
Compaq Computer Corporation, dated January ___, 1999 (the "Advertising Services
Agreement"), DoubleClick Inc. shall provide Services to the New Web Site Area
described below. "Services," "New Web Site Area," and all other capitalized
terms used but not defined in this Addendum, shall have the meaning ascribed to
them in the Advertising Services Agreement.
This New Inventory Addendum shall become effective as of_________ ___, 199__
Description of New Web Site Area
Exclusivity
Rights to Terminate
DOUBLECLICK INC. COMPAQ COMPUTER CORPORATION
Signature: Signature:
----------------------------- -----------------------------
Printed Name: Printed Name:
-------------------------- --------------------------
Title: Title:
--------------------------------- ---------------------------------
Date: Date:
---------------------------------- ----------------------------------
<PAGE>
EXHIBIT D
RATE CARD
[TABLE]
(***)
(***) Denotes language for which the Company has requested confidential
treatment pursuant to the rules and regulations of the Securities Exchange Act
of 1934, as amended.
<PAGE>
EXHIBIT E-1
COMPAQ TRADEMARK USE GUIDELINES
[GRAPHIC]
(***)
(***) Denotes language for which the Company has requested confidential
treatment pursuant to the rules and regulations of the Securities Exchange Act
of 1934, as amended.
<PAGE>
EXHIBIT E-2
DOUBLECLICK TRADEMARK USE GUIDELINES
[GRAPHIC]
(***)
(***) Denotes language for which the Company has requested confidential
treatment pursuant to the rules and regulations of the Securities Exchange Act
of 1934, as amended.
<PAGE>
SCHEDULE I
ADVERTISING ORDER
Pursuant to the terms of this Agreement, DoubleClick shall deliver
advertisements in the following instances and in the following order of
priority:
(a) Paid Advertisement, sold on a cost-per-thousand basis, delivered to
users which match the criteria selected by an Advertiser from information
currently available to DoubleClick concerning Users;
(b) Paid Advertisement, sold on a cost-per-action basis, delivered if no
match occurs or a Paid Advertisement under (a) above is unavailable; and
(c) Unpaid Advertisement, delivered if no match occurs or a Paid
Advertisement is unavailable. Unpaid Advertisements shall include unsold
inventory bartered by Compaq.
