Exhibit 10.11
This Representation Agreement is made as at this 7 day of February 2000
BETWEEN:
INTEREP INTERACTIVE, INC., a corporation incorporated under
the laws of Delaware ("Hereinafter called Interep")
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AMERICOM USA, INC., a corporation incorporated under the laws
of Delaware (Hereinafter called "Americom")
WHEREAS Americom is the owner and operator of the Internet network known as
AdCast and/or DAI and websites with the domain name or names set forth on
Schedule "A" hereto (together, the "Network");
AND WHEREAS Interep is desirous of representing Americom for outside sales of
advertising content to be placed on the Network and in assisting Americom in
expanding the network;
In consideration of the mutual covenants hereinafter given the parties agree as
follows:
1. Term. The term of this Agreement (the "Term") will begin on the date set
forth above and will continue for an initial period of nine (9) months. The
Term will automatically renew for consecutive renewal periods of twelve
(12) months each unless, not later than sixty (60) days prior to the end of
the then current initial period or renewal period, Americom advises Interep
in writing of the termination of this Agreement or any renewal thereof. In
such case this Agreement or any renewal thereof will terminate on the last
day of the then current period.
2. Representation. Pursuant to the terms hereof Interep will serve, as an
outside representative, during the Term, for the sale to advertisers,
advertising agencies and media buyers (the "Clients") in the domestic
United States of America ("USA") of advertising to be displayed on the
Network. As used in this Agreement, the Network may include all Networks
and web pages which are owned or operated by Americom or its affiliates and
which are linked to the Network. Interep shall use its best efforts to
place advertising from third parties on the Network and will devote
appropriate resources, facilities and personnel to do so. This will include
meeting hiring and market resource goals and objectives set forth in
Schedule "B" hereof. Advertising will take the form of html source code
that will display a banner from our server (or the server of such other
party as the parties may agree) on the Network or such other form as the
parties may subsequently agree regional and site specific national
advertising for the Network in the domestic United States.
3. Advertising. Interep will arrange for the placement of e-billboard
advertising on the Network by offering placements on the Network
specifically and through Interep's exclusive channels at pricing approved
by Americom.
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a) An insertion order will be issued for Americom's acceptance or
rejection. Americom may reject any insertion advertising for any
reason. Interep will use commercially reasonable efforts to furnish
any insertion order to Americom in advance of launching the related
advertisement on the Network. An insertion order will include (i) the
name of the Client, (ii) the length of time the advertising will run,
(iii) the related fees payable to Americom and (iv) Interep
commission.
b) Americom will be responsible for fulfilling the terms and conditions
of each insertion order accepted.
c) Americom will be deemed to have accepted an insertion order unless it
provides Interep a notice of rejection, in writing or by e-mail within
24 hours of receipt of insertion order.
d) Interep will not be liable for any revenues lost as a result of an
Americom decision to reject any advertising, nor shall Americom be
liable for any expense or commission to Interep for such rejected
advertising.
e) Interep may request permission to place on the Network test
advertisements for Clients and public service advertisements, at no
charge to the advertiser. Americom may reject any such
non-compensatory advertisements. If any such advertisement is
accepted, there will be no commission payable to Interep commission
from you with regard to it.
4. Rates. Americom in consultation with Interep will set all rates for all
advertising placed by Interep. Interep will publish a rate card to actual
and potential Clients and will furnish a copy to Americom. Interep may
change the rates with the consent of Americom, not to be unreasonably
withheld. The rates that charged to Clients may vary from our published
rates. You agree to maintain all information about any such rate variances
in confidence and not to disclose it to any other actual or potential
Client or any other third party.
5. Commissions. Interep will receive a commission equal to thirty per cent
(30%) of the net billings collected on all advertising placed on the
Network by Interep.
6. Billing and Payment. a) Interep will bill and collect all charges for
advertising which Interep placed on the Network. Within 30 days of the
receipt of any payment for any such advertising Interep will remit to
Americom an amount equal to the gross billings for such advertising, less
any advertising agency commissions and less Interep commissions, unless:
(i) Interep collects payment in advance from an advertiser, in which
case Interep will pay to Americom, those monies owing to
Americom, within seven days from the date the monies are
received;
(ii) A Client disputes an Interep billing in which case all funds will
be held in Interep's attorneys' trust account, until the dispute
is resolved, and then paid promptly to Americom;
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(iii)Payments are received by Interep in a foreign currency, in which
case payment must first be converted into U.S. dollars, and
apportioned accordingly, taking into account the rate of exchange
and conversion fees.
b) Interep will not be liable to pay any amount to Americom unless
Interep has received the corresponding payment from the Client.
Interep shall make all commercially reasonable efforts to collect
amounts owed by Clients. Interep reserves the right to deduct from the
gross billings received from a Client any costs reasonably incurred to
collect such billings for purposes of calculating payments to
Americom.
c) Gross billings will be calculated based solely on audience traffic
audits from Interep's control server, except that in cases where
advertisements are shown by a third party server, Interep will rely on
such server's traffic audits. Interep reserves the right to review any
internal or third party audit figures and edit out any source that has
repeatedly clicked on a banner or viewed a page repeatedly to inflate
statistics. Americom reserves the right to audit all campaigns
utilizing the "True Management" ad serving and reporting system.
Significant discrepancies could result in campaign results review and
adjustment. Americom reserves the right to count impressions, clicks
and unique visitors simultaneously with Interep's interactive control
server.
d) Interep will provide monthly, detailed, on-line reports to Americom of
the advertising activity on the Network and summary reports on
Americom's account status from time to time on Americom's reasonable
request.
7. Advertising Placement.
a) Interep will provide Americom with html source code that will display
the advertisement on the Network.
b) In some cases, a custom size sponsorship may require that Americom
modify the Network subject to Americom's approval. Americom may accept
or reject such modification at its sole discretion.
c) All advertising placed by Interep must appear on the Network within an
ebillboard frame.
8. Liability. Interep will have no liability for the following:
a) Advertising placed on the Network that fails to load or operate
properly due to defects in the related html code or failures of
Interep's server;
b) Such html code harms the Network or Americom's server;
c) Any advertising placed by Interep contains content which results in
any claims for copyright, trademark or other infringement, defamation
or any other liability. If any claim, action, suit or proceeding is
brought against Interep or a Client due to
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d) Loss of sales due to other outside reps selling Ads on the DAI Network
through AdCast.
(i) Any breach of this Agreement by Americom or
(ii) Americom's operation of the Network, including, without
limitation, any based on a claim of copyright, trademark or other
infringement, or defamation, Americom will assume the defense of
any such claim, action, suit or proceeding and indemnify and hold
harmless Interep and its Clients and its respective officers,
directors, employees and affiliates against any loss, liability,
damage and expenses incurred in such connection, including
without limitation, attorneys' fees and disbursement. The
provisions of this Section 8 will survive the termination or
expiration of this Agreement.
(iii)Interep shall not be liable for any incidental, consequential or
other direct or indirect loss or damages, including lost profits,
arising out of this agreement or Americom's use of Interep's
services, even if Interep has been advised of the possibility of
such loss or damages, regardless of the form of action, whether
in contract, tort, including negligence, strict liability or
otherwise.
9. Intellectual Property. Americom represents and warrants to Interep that use
of the Network by Interep or its Clients will not infringe on any third
party intellectual property rights, including without limitation, United
States or foreign trademarks, patents or copyrights and Americom has all
necessary rights and authority to enter into this contract and have
advertising placed on the Network
10. "Poaching" Human Resources. Americom acknowledges that employees hired
before or during the duration of this agreement will not be approached or
solicited for purposes of being hired by Americom USA or any of its
subsidiaries for 90 days after the term of this agreement.
11. Prospecting Support. Conforming to terms specified in Schedule "A", direct
advertising sales contacts made by Americom USA before or during this
agreement will be introduced to Interep Interactive as Americom USA's sales
representative for AdCast. Americom USA will make every reasonable effort
to encourage those contacts to negotiate and execute AdCast advertising
agreements through Interep Interactive. If an advertising agreement has
been first negotiated with Americom USA directly or through the
advertiser's agency, Interep Interactive will be introduced to the operable
customer parties and be eligible to receive commission on any subsequent
agreements that Interep Interactive negotiates and executes with the
advertiser directly or through the advertiser's agency.
12. Network Support. Interep shall at all material times use its best efforts
to increase the number of web sites participating in the Network. Interep
Interactive shall be remunerated for sites or properties that join the
Network as a result of Interep Interactive's sole initiating efforts in the
amount of one quarter of one cent, US currency
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for each monthly unique user in traffic delivered to the DAI Rich Media
Network. The level of monthly unique users and therefore the compensation
will be solely measured by Americom USA's True Management ad serving and
reporting technology. In this capacity, Interep Interactive will act as a
"Network reseller" and be compensated as indicated above as long as sites
Interep has acquired on Americom USA's behalf remain in the network.
13. Cookies. Americom acknowledges that Interep may make use of small data
files that are used to store information ("cookies").
14. Arbitration. Governing Law; Dispute Resolution. This Agreement shall be
construed and interpreted in accordance with the laws of the State of
California. None of the parties shall institute an arbitration or court
proceeding to resolve a dispute between the parties except as expressly
herein provided. If there is a dispute either party may demand direct
negotiation. If such dispute is not resolved within fifteen (15) Business
Days after a demand for direct negotiation, the parties shall attempt to
resolve the dispute through mediation conducted in San Luis Obispo,
California. If the parties do not promptly agree on a mediator, then any of
the parties may notify the American Arbitration Association, to initiate
selection of a mediator from the commercial dispute resolution panel. The
fees and expenses of the mediator shall be paid equally by the parties. If
the mediator is unable to facilitate a settlement of the dispute within a
reasonable period of time, as determined by the mediator, the mediator
shall issue a written statement to the parties to that effect and either
party may then seek relief through arbitration, which shall be binding,
before a single arbitrator pursuant to the Commercial Arbitration Rules of
the American Arbitration Association (the "Association"). The place of
arbitration shall be San Luis Obispo, California. Arbitration may be
commenced at any time after receipt of written mediator's statement, by any
party seeking arbitration by written notice to the other party by first
class mail, postage prepaid. The arbitrator shall be selected by the joint
agreement of the parties, but if they do not so agree within fifteen (15)
Business Days after the date of the notice referred to above, the selection
shall be made pursuant to the rules from the panels of arbitrators
maintained by such Association. The arbitrator shall render his decision
within one hundred eight (180) days of appointment. Any award rendered by
the arbitrator shall be final, conclusive and binding upon the parties
hereto and there shall be no right of appeal therefrom. Judgment upon the
award rendered by the arbitrator may be entered by any court having
jurisdiction thereof. The unsuccessful party shall pay all costs and
expenses of arbitration, including attorneys' fees and expenses of the
arbitrator. The arbitrator shall not be permitted to award punitive or
similar type damages under any circumstances.
15. Miscellaneous.
a) Entire Agreement; Amendments; No Waivers. This Agreement sets forth
our entire understanding with respect to its subject matter and merges
and supersedes all prior understandings with respect to its subject
matter. No provision of this Agreement may be waived or modified, in
whole or in part, except by writing signed by all of the parties.
Failure of either of the parties to enforce any provision of this
Agreement will not be construed as a waiver of rights under such
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or any other provision. No waiver of any provision of this Agreement
in any instance will be deemed to be a waiver of the same or any other
provision in any other instance.
b) Communications. All notices, consents and other communications given
under this Agreement will be in writing and will be deemed to have
been duly given (a) when delivered by hand or by Federal Express or a
similar overnight courier to, (b) five days after being deposited in
any United States post office enclosed in a postage prepaid registered
or certified mail envelope addressed to, or (c) when successfully
transmitted by facsimile (with a confirming copy of such communication
to be sent as provided in (a) or (b) above) to, the party for whom
intended, at the address or facsimile number for such party set forth
below, or to such other address or facsimile number as may be
furnished by such party by notice in the manner provided herein;
provided, however, that any notice of change of address or facsimile
number will be effective only on receipt.
If to Interep If to Americom
Interep Interactive, Inc. Americom USA, Inc.
C/O Adam Guild C/O Douglas Hansen
10880 Wilshire Blvd. 901 South Bascom Avenue
Suite 1000 Suite 880
LA, CA 90024 Campbell, CA 95008
Phone: 323-441-8175 Phone: 800-549-9526
Fax No.: 323-850-6312 Fax No: 408-558-1911
e-mail: [email protected] e-mail:
[email protected]
c) Successors and Assigns. This Agreement will be binding on, enforceable
against and inure to the benefit of, the parties and their respective
successors and permitted assigns, and nothing herein is intended to
confer any right, remedy or benefit on any other person. Neither party
may assign its rights or delegate its obligations under this Agreement
without the express written consent of the other, except that no such
consent will be necessary with respect to any assignment by the
parties to any of their parents, subsidiaries, divisions or
affiliates. Each must notify the other of any such assignment.
d) Governing Law. This Agreement will in all respects be governed by and
construed in accordance with the laws of the State of California
applicable to agreements made and fully to be performed in such state,
without giving effect to conflicts of law principles.
e) Severability. If any provision of this Agreement is held to be invalid
or unenforceable by any court or tribunal of competent jurisdiction,
the remainder of this Agreement will not be affected thereby, and such
provision will be carried out as nearly as possible according to its
original terms and intent to eliminate such invalidity or
unenforceability.
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f) Non-Agency. For all purposes of this Agreement, each of us will be an
independent contractor, and not an agent, partner or joint venture, of
the other.
g) Counterparts. This Agreement may be executed in multiple counterparts,
each of which will be deemed an original, but all of which together
will constitute one and the same instrument.
h) Construction. Headings used in this Agreement are for convenience only
and will not be used in the interpretation of this Agreement.
References to Sections and Exhibits are to the sections and exhibits
of this Agreement. As used herein, the singular includes the plural
and the masculine, feminine and neuter gender each includes the others
where the context so indicates.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
INTEREP INTERACTIVE, INC. AdCast, INC.
By /s/ Adam Guild By /s/ Douglas W. Hansen
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Adam Guild Name: Douglas W. Hansen
President Title: Vice President of Sales
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SCHEDULE "A"
Network Domain Name or Names: all sites using www.adcastdelivers.com technology
All advertisers for whom we have already run advertising on the Network and all
advertisers and clients, who, by their unsolicited request, wish to conduct
business directly with AdCast, DAI or Americom USA.
I-Win
Ad Auction
Mass Music/Audio Highway
AdVenture/Venture OnLine
Advertising.com
Tecknosurf
Etours
Aria
Anheuser-Busch
Supersports.com
GoTo.com
All of the above will be introduced to Interep as our ad sales representative.
They will then do business with us through you, UNLESS they, without
solicitation, request to deal directly with AdCast. This is the case with every
advertiser and agency.
While we realize that a few agencies will insist on direct relationships with
AdCast, we acknowledge that it is to our mutual advantage to have Interep
Interactive in as many agencies as possible selling ads, so that we can
concentrate our resources on building the network.
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SCHEDULE "B"
A. INTEREP GROWS WITH AMERICOM USA
INTEREP INTERACTIVE AGREES TO, IN GOOD FAITH, GROW THEIR SALES ORGANIZATION AT A
PACE COMMENSURATE WITH AMERICOM USA'S NETWORK. AS SUCH INTEREP INTERACTIVE
AGREES TO HIRE ONE NEW SALESPERSON FOR EACH ONE MILLION UNIQUE VIEWERS THAT
AMERICOM USA ADDS TO THEIR ADVERTISING NETWORK. CURRENT NETWORK SIZE AS OF
January 25, 2000 IS 4.9 MILLION UNIQUE VIEWERS PER MONTH. DETERMINATION FOR THE
NUMBER OF UNIQUE VIEWERS WILL BE BASED SOLELY ON DATA FROM AMERICOM USA'S "TRUE
MANAGEMENT" TRAFFIC MANAGEMENT SYSTEM. INTEREP WILL HAVE THIRTY DAYS TO MAKE THE
HIRE FROM THE DATE OF NOTICE THAT AMERICOM HAS ADDED SAID TRAFFIC.
INTEREP INTERACTIVE AGREES TO, IN GOOD FAITH, PLACE THE HIRES IN GEOGRAPHIC
LOCATIONS THAT ARE BENEFICIAL GROWING ITS ORGANIZATION IN PARALLEL TO REVENUE
GROWTH ON THE BUYING SIDE, THAT IS, WHERE ADVERTISING CUSTOMERS ARE INCREASING
INTEREP REPRESENTATION WILL INCREASE LIKEWISE.
B. INTEREP SHARES MARKETING RESOURCES WITH AMERICOM USA
IT IS UNDERSTOOD THAT THE RELATIONSHIP BETWEEN INTEREP INTERACTIVE AND AMERICOM
USA ENCOMPASSES MORE THAN MERELY AD SALES REPRESENTATION. AS SUCH, INTEREP
INTERACTIVE AGREES TO, IN GOOD FAITH, DRAW UPON ALL OF ITS RESOURCES WITHIN ITS
OWN DIVISION, PARENT COMPANY (INTEREP, INC.) AND ASSOCIATED AGENCIES AND
AFFILIATES TO HELP PROMOTE AND EXECUTE THE IMMEDIATE AND FUTURE BUSINESS MODELS
EXECUTED BY AMERICOM USA, DAI AND THE ADCAST NETWORK. THESE COMMITMENTS INCLUDE,
BUT WOULD NOT BE LIMITED TO JOINT PRESS RELEASES, INTRODUCTION TO REPRESENTED
BROADCAST ELEMENTS FOR THE PURPOSE OF PROMOTING THE NETWORK AND INTRODUCTION TO
REPRESENTED INTERACTIVE ELEMENTS FOR THE PUPORSE OF JOINING THE NETWORK.
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