<PAGE>
As filed with the Securities and Exchange Commission on January 31, 2000
Registration Statement No. 333-93013
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
Amendment No. 1 to
Form S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
AltaVista Company
(Exact name of Registrant as specified in its charter)
<TABLE>
<CAPTION>
Delaware 7379 04-3479713
<S> <C> <C>
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification Number)
</TABLE>
529 Bryant Street
Palo Alto, California 94301
(650) 617-3400
(Address, including zip code, and telephone number
Including area code, of Registrant's principal executive offices)
--------------
Stephanie A. Lucie, Esq.
Vice President, General Counsel and Secretary
AltaVista Company
529 Bryant Street
Palo Alto, California 94301
(650) 617-3400
(Name, Address, Including Zip Code, and Telephone Number
Including Area Code, of Agent for Service)
Copies to:
<TABLE>
<S> <C>
Michael V. Gisser, Esq. Bruce K. Dallas, Esq.
Kenton J. King, Esq. Davis Polk & Wardwell
Skadden, Arps, Slate, Meagher & Flom LLP 1600 El Camino Real
525 University Avenue, Suite 220 Menlo Park, California 94025
Palo Alto, California 94301 (650) 752-2000
(650) 470-4500
</TABLE>
--------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
--------------
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 of the Securities Act of
1933, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
--------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file an amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section
8(a), may determine.
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<PAGE>
Explanatory Note
The purpose of this Amendment No. 1 to the Registration Statement is to
file certain exhibits to the Registration Statement, as set forth in Item
16(a) of Part II.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The following table indicates the expenses to be incurred in connection
with the offering described in this Registration Statement, all of which will
be paid by AltaVista. All amounts are estimates, other than the registration
fee, the NASD fee, and the Nasdaq National Market listing fee.
<TABLE>
<S> <C>
SEC Registration fee.............................................. 79,200
NASD Filing fee................................................... 30,500
Nasdaq National Market listing fee................................ *
Accounting fees and expenses...................................... *
Legal fees and expenses........................................... *
Director and officer insurance expenses........................... *
Printing and engraving expenses................................... *
Transfer agent fees and expenses.................................. *
Blue sky fees and expenses........................................ *
Miscellaneous fees and expense.................................... *
------
Total .......................................................... $
======
</TABLE>
- --------
* To be completed by amendment.
Item 14. Indemnification of Directors and Officers.
Section 102 of the Delaware General Corporation Law ("DGCL"), as amended,
allows a corporation to eliminate the personal liability of directors of a
corporation to the corporation or its stockholders for monetary damages for a
breach of fiduciary duty as a director, except where the director breached his
duty of loyalty, failed to act in good faith, engaged in intentional
misconduct or knowingly violated a law, authorized the payment of a dividend
or approved a stock repurchase in violation of Delaware corporate law or
obtained an improper personal benefit.
Section 145 of the DGCL provides, among other things, that the Company may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding (other than
an action by or in the right of the Company) by reason of the fact that the
person is or was a director, officer, agent or employee of the Company or is
or was serving at the Company's request as a director, officer, agent, or
employee of another corporation, partnership, joint venture, trust or other
enterprise, against expenses, including attorneys' fees, judgment, fines and
amounts paid in settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding. The power to indemnify
applies (a) if such person is successful on the merits or otherwise in defense
of any action, suit or proceeding, or (b) if such person acted in good faith
and in a manner he reasonably believed to be in the best interest, or not
opposed to the best interest, of the Company, and with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. The power to indemnify applies to actions brought by or in the right
of the Company as well, but only to the extent of defense expenses (including
attorneys' fees but excluding amounts paid in settlement) actually and
reasonably incurred and not to any satisfaction of judgment or settlement of
the claim itself, and with the further limitation that in such actions no
indemnification shall be made in the event of any adjudication of negligence
or misconduct in the performance of his duties to the Company, unless the
court believes that in light of all the circumstances indemnification should
apply.
Section 174 of the DGCL provides, among other things, that a director, who
willfully or negligently approves of an unlawful payment of dividends or an
unlawful stock purchase or redemption, may be held liable for such actions. A
director who was either absent when the unlawful actions were approved or
dissented at the
II-1
<PAGE>
time, may avoid liability by causing his or her dissent to such actions to be
entered in the books containing the minutes of the meetings of the board of
directors at the time such action occurred or immediately after such absent
director receives notice of the unlawful acts.
Our Amended and Restated Certificate of Incorporation includes a provision
that eliminates the personal liability of its directors for monetary damages
for breach of fiduciary duty as a director, except for liability:
. for any breach of the director's duty of loyalty to AltaVista or its
stockholders;
. for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
. under the section 174 of the Delaware General Corporation Law regarding
unlawful dividends and stock purchases; or
. for any transaction from which the director derived an improper personal
benefit.
These provisions are permitted under Delaware law.
Our Amended and Restated Bylaws provide that:
. we must indemnify our directors and officers to the fullest extent
permitted by Delaware law;
. we may indemnify our other employees and agents to the same extent that
we indemnified our officers and directors, unless otherwise determined by
our Board of Directors; and
. we must advance expenses, as incurred, to our directors and executive
officers in connection with a legal proceeding to the fullest extent
permitted by Delaware Law.
The indemnification provisions contained in the Company's Amended and
Restated Certificate of Incorporation and Amended and Restated Bylaws are not
exclusive of any other rights to which a person may be entitled by law,
agreement, vote of stockholders or disinterested directors or otherwise. In
addition, the Company maintains insurance on behalf of its directors and
executive officers insuring them against any liability asserted against them
in their capacities as directors or officers or arising out of such status.
Item 15. Recent Sales of Unregistered Securities.
In the three fiscal years preceding the filing of this registration
statement, AltaVista has issued the following securities that were not
registered under the Securities Act:
(a) Issuances of Capital Stock
(b) Grants and Exercises of Stock Options
As of November 30, 1999, AltaVista had granted options to purchase an
aggregate of 340,000 shares of common stock, with a weighted average exercise
price of $ per share, to its non-employee directors.
As of November 30, 1999, AltaVista had granted options to purchase an
aggregate of shares of common stock, with a weighted average exercise
price of $ per share, to its employees under its stock option plans.
(c) Exemptions
No underwriters were involved in the foregoing sales of securities. These
sales were made in reliance upon an exemption from the registration provisions
of the Securities Act set forth in Section 4(2) thereof relative to sales by
an issuer not involving any public offering or the rules and regulations
thereunder or, in the case of options to purchase common stock, Rule 701 under
the Securities Act. All of the foregoing securities are deemed restricted
securities for purposes of the Securities Act.
II-2
<PAGE>
Item 16. Exhibits and Financial Statement Schedules.
a. Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
1.1 Form of Underwriting Agreement*
3.1 Amended and Restated Certificate of Incorporation**
3.2 Amended and Restated By-Laws**
4.1 Form of common stock certificate*
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP*
10.1 1999 Stock Option Plan**
10.2 1999 Stock Option Plan Agreement**
10.3 1999 Equity Incentive Plan**
10.4 1999 Equity Incentive Plan Agreement**
10.5 1999 Stock Option Plan for Non-Employee Directors**
10.6 Amended and Restated 1999 Stock Option Plan for Non-Employee
Directors**
10.7 1999 Stock Option Plan for Non-Employee Directors Agreement**
10.8 Form of Severance Agreement**
10.9 Forms of Indemnity Agreements**
10.10 Deferred Compensation Plan**
10.11 Trust Agreement under Deferred Compensation Plan**
10.12 Investor Rights Agreement by and between AltaVista and CMGI, Inc.**
10.13 1999 Employee Stock Purchase Plan
10.14+ Advertising Services Agreement, between DoubleClick, Inc. and
AltaVista, dated as of November 1, 1999
10.15+ Advertising Services Agreement, between DoubleClick, Inc. and Compaq
Computer Corporation, dated as of January 1, 1999
10.16+ Relevant portions of the Strategic Business Agreement, between Compaq
Computer Corporation and CMGI, Inc., dated as of June 29, 1999
10.17+ Strategic Alliance Agreement, between 1stUp.Com Corporation and
AltaVista, dated as of June 25, 1999
16.1 Letter Regarding Change in Accountants**
21.1 Subsidiary of the Registrant**
23.1 Consent and Report of KPMG LLP**
23.2 Consent of Singer Lewak Greenbaum & Goldstein LLP**
23.3 Consent of PricewaterhouseCoopers LLP**
23.4 Report of PricewaterhouseCoopers LLP**
23.5 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in
Exhibit 5.1)*
24.1 Power of Attorney**
27.1 Financial Data Schedule**
27.2 Financial Data Schedule**
27.3 Financial Data Schedule**
27.4 Financial Data Schedule**
</TABLE>
- --------
* To be filed by amendment.
** Previously filed.
+ We have sought confidential treatment from the Commission for selected
portions of this exhibit. The omitted portions will be separately filed
with the Commission.
b. Financial Statement Schedules
Schedule II -- Valuation and Qualifying Accounts
II-3
<PAGE>
Item 17. Undertakings.
The undersigned Registrant hereby undertakes to provide to the Underwriters
at the closing certificates in such denominations and registered in such names
as required by the Underwriters to permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers, and controlling persons of
the registrant pursuant to the provisions described in Item 14, or otherwise,
the registrant has been informed that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is therefore unenforceable. In the event that a
claim for indemnification by the registrant against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer, or controlling person of the registrant in the successful defense of
any action, suit, or proceeding) is asserted by such director, officer, or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the maser has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b) (1) or
(4) or 497 (h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bonafide offering thereof.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Palo Alto, State of
California, on January 28, 2000.
AltaVista Company
/s/ Kenneth R. Barber
By: ________________________________
Name: Kenneth R. Barber
Title: Vice President and Chief
Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* President, Chief Executive January 28, 2000
____________________________________ Officer and Director
Rodney W. Schrock
* Vice President and Chief January 28, 2000
____________________________________ Financial Officer
Kenneth R. Barber
* Vice President, Corporate January 28, 2000
____________________________________ Controller and Treasurer
Mary S. Yuschak
* Chairman January 28, 2000
____________________________________
David S. Wetherell
* Director January 28, 2000
____________________________________
Flint J. Brenton
* Director January 28, 2000
____________________________________
John G. McDonald
* Director January 28, 2000
____________________________________
Avram Miller
* Director January 28, 2000
____________________________________
Robert J. Ranalli
</TABLE>
/s/ Kenneth R. Barber
*By:_________________________
Name:
Kenneth R. Barber
(Attorney-in-fact)
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description
------- -----------
<C> <S>
10.13 1999 Employee Stock Purchase Plan
10.14 Advertising Services Agreement, between DoubleClick, Inc. and
AltaVista, dated as of November 1, 1999
10.15 Advertising Services Agreement, between DoubleClick, Inc. and Compaq
Computer Corporation, dated as of January 1, 1999
10.16 Relevant portions of the Strategic Business Agreement, between Compaq
Computer Corporation and CMGI, Inc., dated as of June 29, 1999
10.17 Strategic Alliance Agreement, between 1stUp.Com Corporation and
AltaVista, dated as of June 25, 1999
</TABLE>
<PAGE>
EXHIBIT 10.13
ALTAVISTA COMPANY
1999 EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE.
-------
The purpose of the AltaVista Company 1999 Employee Stock Purchase Plan (the
"Plan") is to provide an opportunity for Employees (as defined below) to
purchase Common Stock (as defined below) of AltaVista (as defined below) and
thereby to have an additional incentive to contribute to the prosperity of
AltaVista. It is the intention of AltaVista that the Plan qualify as an
"employee stock purchase plan" under section 423 of the Internal Revenue Code of
1986, as amended, although AltaVista makes no undertaking nor representation to
maintain such qualification. In addition, this Plan authorizes the grant of
options and issuance of Common Stock which do not qualify under section 423 of
the Code pursuant to sub-plans that may be adopted by the Committee, from time
to time, which sub-plans are designed to achieve desired tax or other objectives
in particular locations outside the United States.
2. DEFINITIONS.
-----------
(a) "AltaVista" shall mean AltaVista Company, together with any successor
---------
thereto.
(b) "Board" shall mean the board of directors of AltaVista.
-----
(c) "Code" shall mean the United States Internal Revenue Code of 1986, as
----
amended from time to time and the regulations thereunder.
(d) "Committee" shall mean a committee appointed by the Board in accordance with
---------
Section 13 of the Plan to administer the Plan and to perform the functions set
forth herein.
(e) "Common Stock" shall mean the common stock of AltaVista, par value $0.01, or
------------
such other securities of AltaVista as may be designated by the Committee from
time to time.
(f) "Continuous Status as an Employee" shall mean the absence of any
--------------------------------
interruption or termination of service as an Employee. Continuous Status as an
Employee shall not be considered interrupted in the case of a leave of absence
agreed to in writing by AltaVista or a Designated Subsidiary, as appropriate,
provided that (1) such leave is for a period of not more than 90 days or (2)
reemployment with AltaVista or the Designated Subsidiary, as appropriate, is
guaranteed by contract or statute upon expiration of such leave.
(g) "Designated Subsidiary" shall mean a Subsidiary that has been designated by
---------------------
the Committee as eligible to participate in the Plan with respect to such
Subsidiary's Employees.
(h) "Employee" shall mean any individual classified as an employee by AltaVista
--------
or a Designated Subsidiary, as the case may be, on the payroll records of
AltaVista or the Designated Subsidiary during the relevant Offering Period and
who is customarily employed by AltaVista or
<PAGE>
the Designated Subsidiary for at least twenty (20) hours per week and more than
five (5) months in a calendar year. The Committee may, in its sole discretion,
provide that a designated group of "highly compensated" Employees within the
meaning of section 414(q) of the Code are ineligible to participate in the Plan.
(i) "Fair Market Value" shall mean the value of one share of Common Stock on the
-----------------
relevant date, determined as follows:
(1) If the shares of Common Stock are traded on an exchange (including the
Nasdaq National Market System), the reported "closing price" on the relevant
date (e.g., the Offering Date or Purchase Date);
(2) If the shares of Common Stock are traded over-the-counter with no
reported closing price, the mean between the lowest bid and the highest asked
prices on said system on the relevant date; and
(3) If neither (1) nor (2) applies, the fair market value as determined by
the Committee in good faith. Such determination shall be conclusive and binding
on all persons.
(4) Notwithstanding anything to the contrary contained herein, for purposes
of the Offering Date of the first Offering Period under the Plan, the Fair
Market Value of one share of Common Stock shall be the initial price to the
public as set forth in the final prospectus included within the registration
statement in Form S-1 filed with the Securities and Exchange Commission for the
initial underwritten public offering of the Common Stock (the "Registration
Statement").
(j) "Offering Date" shall mean the first Trading Day of each Offering Period.
-------------
(k) "Offering Period" shall mean a three-month, six-month or other period as
---------------
determined by the Committee (but in no event for a period of longer than
twenty-seven (27) months) during which an option granted pursuant to the Plan
may be exercised, commencing on the first Trading Day on or after April 1 and
October 1 of each year; provided, however, that the first Offering Period under
the Plan shall commence with the first Trading Day on or after the date on which
the Securities and Exchange Commission declares AltaVista's Registration
Statement effective and ending on the last Trading Day on or before March 31,
2001.
(l) "Participant" shall mean a participant in the Plan as described in Section 4
-----------
of the Plan.
(m) "Pay" shall mean an Employee's base cash pay (excluding variable cash
---
payments, unless otherwise determined by the Committee) paid on account of
personal services rendered by the Employee to AltaVista or a Designated
Subsidiary, plus pre-tax contributions made by or on behalf of the Employee that
are part of deferred pay or benefit plans maintained by AltaVista or a
Designated Subsidiary, with any modifications determined by the Committee. The
Committee shall have the authority to determine and approve all forms of pay
(such as commissions) to be included in the definition of Pay and may change the
definition of Pay on a prospective basis.
(n) "Purchase Date" shall mean the last Trading Day of each Purchase Period.
-------------
2
<PAGE>
(o) "Purchase Period" shall mean the approximately six-month period commencing
---------------
after one Purchase Date and ending with the next Purchase Date, except that the
first Purchase Period of any Offering Period shall commence on the Offering
Date.
(p) "Stockholder" shall mean a record holder of shares entitled to vote shares
-----------
of Common Stock under AltaVista's bylaws.
(q) "Subsidiary" shall mean any subsidiary corporation (other than AltaVista) in
----------
an unbroken chain of corporations beginning with AltaVista, as described in Code
section 424(f).
(r) "Trading Day" shall mean a day on which national stock exchanges and the
-----------
Nasdaq National Market System are open for trading.
3. ELIGIBILITY.
-----------
Subject to the limitations contained herein, any person who is an Employee
as of an Offering Date shall be eligible to participate in the Plan in
accordance with Section 4 hereof and shall be granted an option for the Offering
Period commencing on such Offering Date; provided, that the Committee may impose
an eligibility period on participation of up to two years employment with
AltaVista and/or a Designated Subsidiary with respect to participation on any
prospective Offering Date.
Notwithstanding any provision of the Plan to the contrary, no Employee may
participate in the Plan if, immediately after an option is granted, the Employee
owns or is considered to own (within the meaning of Code section 424(d)), shares
of capital stock, including stock which the Employee may purchase by conversion
of convertible securities or under outstanding options granted by AltaVista,
possessing five percent (5%) or more of the total combined voting power or value
of all classes of stock of AltaVista or of any of its Subsidiaries. Any amounts
received from an Employee that cannot be used to purchase shares of Common Stock
as a result of this limitation shall be returned as reasonably practicable to
the Employee without interest.
All Employees who participate in the Plan shall have the same rights and
privileges under the Plan except for differences which may be mandated by local
law and which are consistent with Code section 423(b)(5); provided, however,
that Employees participating in a sub-plan adopted pursuant to Section 14 which
is not designed to qualify under Code section 423 need not have the same rights
and privileges as Employees participating in the Code section 423 Plan. The
Committee may impose restrictions on eligibility and participation of Employees
who are officers and directors to facilitate compliance with federal or state
securities laws or foreign laws.
4. PARTICIPATION AND WITHDRAWAL.
----------------------------
4.1 An Employee who is eligible to participate in the Plan in accordance
with Section 3 may become a Participant by filing, on a date prescribed by the
Committee prior to an applicable Offering Date, a completed payroll deduction
authorization and Plan enrollment form pro-
3
<PAGE>
vided by AltaVista or by following an electronic or other enrollment process as
prescribed by the Committee. An eligible Employee may authorize payroll
deductions at the rate of any whole percentage of the Employee's Pay, not to
exceed ten percent (10%) of the Employee's Pay, or such greater percentage, as
specified by the Committee. The Committee may provide for a separate election
(of a different percentage) for a specified item or items of Pay, including
profit sharing payments, if any. Payroll deductions shall commence on the first
day of the first payroll period commencing immediately following the Offering
Date, and shall end on the last day of the last payroll period ending prior to
the Purchase Date of the Purchase Period to which the subscription agreement is
applicable, unless sooner terminated by the Participant's withdrawal from the
Plan or termination of employment with AltaVista or a Designated Subsidiary or
of Participant's Continuous Status as an Employee or otherwise, as determined by
the Committee in its discretion. All payroll deductions may be held by AltaVista
and commingled with its other corporate funds. No interest shall be paid or
credited to the Participant with respect to such payroll deductions except where
required by local law as determined by the Committee. A separate bookkeeping
account for each Participant shall be maintained by AltaVista under the Plan and
the amount of each Participant's payroll deductions shall be credited to such
account. A Participant may not make any additional payments into such account.
Unless otherwise specified by the Committee, payroll deductions made with
respect to Employees paid in currencies other than U.S. dollars shall be
accumulated in local (non-U.S.) currency and converted to U.S. dollars as of the
Purchase Date.
4.2 Unless otherwise determined by the Committee, a Participant may
decrease his or her rate of payroll deductions at any time in accordance with
procedures prescribed by the Committee. A Participant may increase his or her
rate of payroll deductions only effective on the first payroll date following
commencement of the next Purchase Date by filing a new payroll deduction
authorization and Plan enrollment form or by following electronic or other
procedures prescribed by the Committee. If a Participant has not followed such
procedures to change the rate of payroll deductions, the rate of payroll
deductions shall continue at the originally elected rate throughout the Offering
Period and future Offering Periods (or any lower maximum rate then in effect)
unless the Participant discontinues participation in the Plan or terminates
employment with AltaVista or a Designated Subsidiary or upon termination of
Participant's Continuous Status as an Employee.
4.3 (a) Under procedures established by the Committee, a Participant may
discontinue participation in the Plan at any time during an Offering Period by
completing and filing a new payroll deduction authorization and Plan enrollment
form with AltaVista or by following electronic or other procedures prescribed by
the Committee. If a Participant has not followed such procedures to discontinue
the payroll deductions, the rate of payroll deductions shall continue at the
originally elected rate throughout the Offering Period and future Offering
Periods (or any lower maximum rate then in effect) unless the Participant
changes his or her rate of payroll deductions or terminates employment with
AltaVista or a Designated Subsidiary or upon termination of Participant's
Continuous Status as an Employee.
(b) If a Participant discontinues participation during an Offering
Period, his or her accumulated payroll deductions will remain in the Plan for
purchase of shares as specified in Section 6 on the following Purchase Date, but
the Participant will not again participate until he
4
<PAGE>
or she re-enrolls in the Plan. Alternatively, Participants may request a cash
distribution of monies accumulated but not yet distributed by following such
procedures, electronic or otherwise, as specified by the Committee. The
Committee may establish rules limiting the frequency with which Participants may
discontinue and resume payroll deductions under the Plan and may impose a
waiting period on Participants wishing to resume payroll deductions following
discontinuance. The Committee also may change the rules regarding discontinuance
of participation or changes in participation in the Plan.
(c) In the event any Participant terminates employment with AltaVista
or any Designated Subsidiary for any reason (excluding death or disability), the
Participant's participation in the Plan shall terminate and all accumulated
payroll deductions credited to the Participant's account shall be paid to the
Participant or the Participant's estate, as applicable, without interest (except
where required by local law). Whether a termination of employment has occurred
shall be determined by the Committee.
(d) In the event any Participant terminates employment with AltaVista
or any Designated Subsidiary by reason of death or disability, the Participant's
accumulated payroll deductions will remain in the Plan for purchase of shares as
specified in Section 6 on the following Purchase Date. Alternatively, such
Participant (or the Participant's estate, as applicable) may request a cash
distribution of monies accumulated but not yet distributed by following such
procedures, electronic or otherwise, as specified by the Committee.
(e) Upon termination of a Participant's Continuous Status as an
Employee, all the payroll deductions credited to such Participant's account
(that have not been used to purchase shares of Common Stock) shall be returned
to such Participant, and such Participant's option shall be automatically
terminated. Such termination shall be deemed a termination of employment with
AltaVista or a Designated Subsidiary for purposes of the Plan.
5. OFFERING.
--------
5.1 Subject to adjustment pursuant to Section 8, the maximum aggregate
number of shares of Common Stock which shall be reserved for sale under the Plan
for all Offering Periods that commence during each fiscal year of the Company
occurring during the term of the Plan shall be two million shares. Such shares
shall be available as of the first day of the first Offering Period that
commences in each such fiscal year. The shares of Common Stock may consist, in
whole or in part, of authorized and unissued shares or treasury shares. If the
total number of shares of Common Stock which would otherwise be subject to
options granted hereunder on an Offering Date exceeds the number of shares of
Common Stock then available under the Plan (after deduction of all shares for
which options have been exercised or are then outstanding), the Committee shall
make a pro rata allocation of the shares of Common Stock remaining available for
option grant in as uniform a manner as shall be practicable and as it shall
determine to be equitable. In such event, the Committee shall give written
notice to each Participant of such reduction of the number of option shares
affected thereby and shall similarly reduce the rate of payroll deductions, if
necessary.
5
<PAGE>
5.2 Each Offering Period shall be determined by the Committee. Unless
otherwise determined by the Committee, the Plan will operate with successive
one-year Offering Periods. The Committee shall have the power to change the
duration of future Offering Periods, without Stockholder approval, and without
regard to the expectations of any Participants.
5.3 With respect to each Offering Period, each eligible Employee who has
elected to participate as provided in Section 4.1 shall be granted an option to
purchase the number of shares of Common Stock which may be purchased with the
payroll deductions accumulated in an account maintained on behalf of such
Employee during each Purchase Period, at the purchase price specified in Section
5.4 below, subject to the limitations contained in this Section 5.3.
Notwithstanding any other provision of the Plan to the contrary, (i) no Employee
participating in the Code section 423 Plan shall be granted an option to
purchase Common Stock under the Plan and all employee stock purchase plans of
AltaVista and its Subsidiaries at a rate which exceeds $25,000 of the Fair
Market Value of such Common Stock (determined at the time such option is
granted) for each calendar year in which such option is outstanding at any time
and (ii) no Employee shall be permitted to purchase during any Purchase Period
more than 2,500 shares of Common Stock) subject to any adjustment pursuant to
Section 8 hereof). Notwithstanding anything to the contrary contained herein, to
the extent necessary to comply with the limitations set forth in this Section
5.3, a Participant's rate of payroll deductions may be decreased by AltaVista to
zero percent (0%) at any time during an Offering Period. Payroll deductions
shall recommence at the rate provided for in such Participant's subscription
agreement at the beginning of the first Offering Period that is scheduled to end
the following calendar year, unless a Participant otherwise increases or
decreases the rate of his or her payroll deductions, or discontinues his or her
participation in the Plan.
5.4 The option price under each option shall be the lower of: (i) a
percentage (which percentage may not be less than eighty-five percent (85%))
established by the Committee (the "Designated Percentage") of the Fair Market
Value of the Common Stock on the Offering Date on which an option is granted, or
(ii) the Designated Percentage of the Fair Market Value of the Common Stock on
the Purchase Date. Notwithstanding anything to the contrary contained herein,
for purposes of the Offering Date of the first Offering Period under the Plan,
the Fair Market Value of one share of Common Stock shall be the initial price to
the public as set forth in the final prospectus included within the Registration
Statement. The Committee may change the Designated Percentage with respect to
any future Offering Period, and the Committee may determine with respect to any
prospective Offering Period that the option price shall be the Designated
Percentage of the Fair Market Value of the Common Stock on the Purchase Date.
Unless otherwise established by the Committee, the Designated Percentage shall
be equal to eighty-five percent (85%).
5.5 To the extent permitted by applicable laws, if the Fair Market Value of
a share of Common Stock on any Purchase Date in an Offering Period is lower than
the Fair Market Value of a share of Common Stock on the Offering Date of such
Offering Period, then all Participants in such Offering Period shall be
automatically withdrawn from such Offering Period immediately after the exercise
of their option on such Purchase Date and automatically re-enrolled in the
immediately following Offering Period as of the first day thereof.
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6. PURCHASE OF STOCK.
-----------------
Subject to the limitations set forth in Sections 5.1 and 5.3, upon the
expiration of each Purchase Period, a Participant's option shall be exercised
automatically for the purchase of that number of full and fractional shares of
Common Stock which the accumulated payroll deductions credited to the
Participant's account at that time shall purchase at the applicable price
specified in Section 5.4. Shares of Common Stock purchased on behalf of a
Participant under the Plan shall be registered in the name of the Participant
or, if requested in writing by the Participant, in the names of the Participant
and the Participant's spouse.
7. PAYMENT AND DELIVERY.
--------------------
Upon the exercise of an option on each Purchase Date, AltaVista shall
deliver (by electronic or other means) to the Participant a record of the Common
Stock purchased, except as specified below. The Committee may permit or require
that shares be deposited directly with a broker designated by the Committee (or
a broker selected by the Committee) or to a designated agent of AltaVista, and
the Committee may utilize electronic or automated methods of share transfer. The
Committee may require that shares be retained with such broker or agent for a
designated period of time (and may restrict dispositions during that period)
and/or may establish other procedures to permit tracking of disqualifying
dispositions of such shares or to restrict transfer of such shares. The
Committee may require that shares purchased under the Plan shall automatically
participate in a dividend reinvestment plan or program maintained by AltaVista.
AltaVista shall retain the amount of payroll deductions used to purchase Common
Stock as full payment for the Common Stock and the Common Stock shall then be
fully paid and non-assessable. No Participant shall have any voting, dividend,
or other Stockholder rights with respect to shares subject to any option granted
under the Plan until the shares subject to the option have been purchased and
delivered to the Participant as provided in this Section 7.
8. RECAPITALIZATION.
----------------
8.1 If after the grant of an option, but prior to the purchase of Common
Stock under the option, there is any increase or decrease in the number of
outstanding shares of Common Stock because of a stock split, stock dividend,
combination or recapitalization of shares subject to options, the number of
shares to be purchased pursuant to an option, the share limits of Section 5.3
and the maximum number of shares specified in Section 5.1 shall be
proportionately increased or decreased, the terms relating to the purchase price
with respect to the option shall be appropriately adjusted by the Board, and the
Board shall take any further actions which, in the exercise of its discretion,
may be necessary or appropriate under the circumstances.
8.2 The Board, if it so determines in the exercise of its sole discretion,
also may adjust the number of shares specified in Section 5.1, as well as the
price per share of Common Stock covered by each outstanding option and the
maximum number of shares subject to any individual option, in the event
AltaVista effects one or more reorganizations, recapitalizations, spin-offs,
split-ups, rights offerings or reductions of shares of its outstanding Common
Stock.
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8.3 The Board's determinations under this Section 8 shall be conclusive and
binding on all parties.
9. MERGER, LIQUIDATION, OTHER CORPORATION TRANSACTIONS.
---------------------------------------------------
9.1 In the event of the proposed liquidation or dissolution of AltaVista,
the Offering Period then in progress will terminate immediately prior to the
consummation of such proposed liquidation or dissolution, unless otherwise
provided by the Board in its sole discretion, and all outstanding options shall
automatically terminate and the amounts of all payroll deductions will be
refunded without interest to the Participants.
9.2 In the event of a proposed sale of all or substantially all of the
assets of AltaVista, or the merger or consolidation of AltaVista with or into
another corporation, then in the sole discretion of the Board, (1) each option
shall be assumed or an equivalent option shall be substituted by the successor
corporation or parent or subsidiary of such successor corporation or (2) a date
established by the Board on or before the date of consummation of such merger,
consolidation or sale shall be treated as a Purchase Date, and all outstanding
options shall be deemed exercisable on such date.
10. TRANSFERABILITY.
---------------
Options granted to Participants may not be voluntarily or involuntarily
assigned, transferred, pledged, or otherwise disposed of in any way other than
by will or the laws of descent and distribution, and any other attempted
assignment, transfer, pledge, or other disposition shall be null and void and
without effect. If a Participant in any manner attempts to transfer, assign or
otherwise encumber his or her rights or interest under the Plan, other than as
permitted by the Code, such act shall be treated as an election by the
Participant to discontinue participation in the Plan pursuant to Section 4.3.
11. REPORTS.
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Individual accounts shall be maintained by AltaVista for each Participant
in the Plan. Statements of account shall be given to each Participant at least
annually which statements shall set forth the amounts of payroll deductions, the
Purchase Price, the number of Shares of Common Stock purchased and the remaining
cash balance, if any.
12. AMENDMENT OR TERMINATION OF THE PLAN.
------------------------------------
12.1 The Plan shall continue until the tenth anniversary of the effective
date as set forth in Section 20 of the Plan, unless previously terminated in
accordance with Section 12.2.
12.2 The Board or the Committee may, in its sole discretion, insofar as
permitted by law, terminate or suspend the Plan, or revise or amend it in any
respect whatsoever, except that, without approval of the Stockholders, no such
revision or amendment shall:
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(a) increase the number of shares subject to the Plan, other than an
adjustment under Section 8 of the Plan; or
(b) modify the requirements as to eligibility for participation in the
Plan, except as otherwise specified in this Plan.
13. ADMINISTRATION.
--------------
The Board shall appoint a Committee consisting of at least two members who
will serve for such period of time as the Board may specify and who may be
removed by the Board at any time. The Committee will have the authority and
responsibility for the day-to-day administration of the Plan, the authority and
responsibility specifically provided in this Plan and any additional duties,
responsibility and authority delegated to the Committee by the Board, which may
include any of the functions assigned to the Board in this Plan. The Committee
may delegate to one or more individuals the day-to-day administration of the
Plan. The Committee shall have full power and authority to promulgate any rules
and regulations which it deems necessary for the proper administration of the
Plan, to interpret the provisions and supervise the administration of the Plan,
to make factual determinations relevant to Plan entitlements, to adopt sub-plans
applicable to specified Subsidiaries or locations and to take all action in
connection with administration of the Plan as it deems necessary or advisable,
consistent with the delegation from the Board. Decisions of the Board and the
Committee shall be final and binding upon all participants. Any decision reduced
to writing and signed by a majority of the members of the Committee shall be
fully effective as if it had been made at a meeting of the Committee duly held.
AltaVista shall pay all expenses incurred in the administration of the Plan. No
Board or Committee member shall be liable for any action or determination made
in good faith with respect to the Plan or any option granted thereunder.
14. COMMITTEE RULES FOR FOREIGN JURISDICTIONS.
-----------------------------------------
14.1 The Committee may adopt rules or procedures relating to the operation
and administration of the Plan to accommodate the specific requirements of local
laws and procedures. Without limiting the generality of the foregoing, the
Committee is specifically authorized to adopt rules and procedures regarding
handling of payroll deductions, payment of interest, conversion of local
currency, payroll tax, withholding procedures and handling of stock certificates
which vary with local requirements.
14.2 The Committee may also adopt sub-plans applicable to particular
Subsidiaries or locations, which sub-plans may be designed to be outside the
scope of Code section 423. The rules of such sub-plans may take precedence over
other provisions of this Plan, with the exception of Section 5.1, but unless
otherwise superseded by the terms of such sub-plan, the provisions of this Plan
shall govern the operation of such sub-plan.
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15. SECURITIES LAWS REQUIREMENTS.
----------------------------
AltaVista shall not be under any obligation to issue Common Stock upon the
exercise of any option unless and until AltaVista has determined that: (i) it
and the Participant have taken all actions required to register the Common Stock
under the Securities Act of 1933, or to perfect an exemption from the
registration requirements thereof; (ii) any applicable listing requirement of
any stock exchange on which the Common Stock is listed has been satisfied; and
(iii) all other applicable provisions of state, federal and applicable foreign
law have been satisfied.
16. GOVERNMENTAL REGULATIONS.
------------------------
This Plan and AltaVista's obligation to sell and deliver shares of its
stock under the Plan shall be subject to the approval of any governmental
authority required in connection with the Plan or the authorization, issuance,
sale, or delivery of stock hereunder.
17. WITHHOLDING OF TAXES.
--------------------
If the Participant makes a disposition, within the meaning of section
424(c) of the Code of any share or shares of Common Stock issued to Participant
pursuant to Participant's exercise of an option, and such disposition occurs
within the two-year period commencing on the day after the Offering Date or
within the one-year period commencing on the day after the Purchase Date,
Participant shall, within ten (10) days of such disposition, notify AltaVista
thereof and thereafter immediately deliver to AltaVista any amount of Federal,
state or local income taxes and other amounts which AltaVista informs the
Participant AltaVista may be required to withhold.
18. NO ENLARGEMENT OF EMPLOYEE RIGHTS.
---------------------------------
Nothing contained in this Plan shall be deemed to give any Employee the
right to be retained in the employ of AltaVista or any Designated Subsidiary or
to interfere with the right of AltaVista or Designated Subsidiary to discharge
any Employee at any time.
19. GOVERNING LAW.
-------------
This Plan and the rights of all persons claiming hereunder shall be
construed and determined in accordance with the laws of the State of California
without giving effect to the choice of law principles thereof, except to the
extent that such law is preempted by Federal law.
20. EFFECTIVE DATE.
--------------
This Plan shall be effective upon the closing of AltaVista's initial
public offering, subject to approval of the Stockholders within 12 months of its
adoption by the Board.
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EXHIBIT 10.14
INTERIM AMENDED AND RESTATED
ADVERTISING SERVICES AGREEMENT
This ADVERTISING SERVICES AGREEMENT (this "Agreement"), effective as
---------
of November 1, 1999 (the "Effective Date"), by and between DoubleClick Inc., a
--------------
Delaware corporation ("DoubleClick"), AltaVista Company, a Delaware corporation
-----------
(as successor to Compaq Computer Corporation) and AV Internet Solutions Ltd., an
Irish corporation (AV Internet Solutions Ltd., AltaVista Company, and the direct
and indirect subsidiaries of AltaVista Company, "AltaVista").
WHEREAS, DoubleClick and Compaq Computer Corporation entered into an
Advertising Services Agreement as of January 1, 1999 (the "Existing Agreement");
------------------
WHEREAS, AltaVista is the successor in interest to Compaq Computer
Corporation's rights and obligations under the Existing Agreement;
WHEREAS, DoubleClick and AltaVista desire that the Existing Agreement
be suspended and that this Agreement apply instead but only for the duration of
the period from January 1, 2000 until December 31, 2000 (except for Section 4.2
and 4.4, which shall apply from the Effective Date until December 31, 2000),
after which this Agreement shall cease to have effect and the Existing Agreement
shall again apply;
WHEREAS, subject to Section 11.8, AltaVista intends to form an
internal sales force to solicit advertising for the Web Site; and
WHEREAS, in furtherance of the objectives set forth above, the parties
hereto desire to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
DoubleClick and AltaVista, intending to be legally bound, hereby agree as
follows:
As of the Effective Date Sections 4.2 and 4.4 of the Existing
Agreement are deleted in their entirety and replaced with the Sections numbered
4.2 and 4.4 below.
As of January 1, 2000 the parties hereby agree that the Existing
Agreement is amended and restated in its entirety as set forth in this
Agreement.
The parties agree that on January 1, 2001, the Existing Agreement
shall again apply and that apart from any obligations that survive pursuant to
Section 5.5(b) of this Agreement, this Agreement shall no longer be of any
effect on January 1, 2001.
The parties further agree that DoubleClick may delegate its
obligations under this Agreement outside the United States to the Affiliates and
joint venture entities listed on Exhibit H, and to any other Affiliate or joint
venture entity that has been approved by AltaVista, which approval shall not be
unreasonably withheld.
<PAGE>
ARTICLE I
DEFINITIONS
1.1 Definitions. As used in this Agreement, the following terms shall
-----------
have the meanings specified below:
(a) "Ad Sales Service" shall mean the services provided by
DoubleClick on behalf of AltaVista in relation to the Web Site pursuant to
Article III.
(b) "Advertiser" shall mean a Person who provides material, whether
directly or through its advertising agency, to promote itself, its brands or the
products or services that it offers.
(c) "Advertiser Contract" shall mean any contract with an Advertiser
relating to the sale of Advertising.
(d) "Advertising" or "Advertisement" shall mean any material
(including any graphical or textual element) provided by or on behalf of an
Advertiser that promotes a brand or products or services and which falls within
one of the following categories: (i) it is on the rate card for Advertising,
(ii) it is intended to be on the rate card for Advertising, or (iii) it is or
could be rotated between several different Advertisers without changing the
nature of the content or service on the Page where the advertising material
appears. [***]
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of 1933,
as amended.
(e) "Affiliate" shall mean, with respect to any Person, any other
Person that, directly or indirectly, controls, is controlled by, or is under
common control with, such Person.
(f) "Agreement" shall mean this Agreement and the schedules, exhibits
and addenda attached hereto as the same may be amended, supplemented or modified
in accordance with the terms hereof.
(g) "Average Combined Pricing" shall have the meaning set forth in
Section 4.4 of this Agreement.
(h) "Average DART Only Fee" shall have the meaning set forth in
Section 4.4 of this Agreement.
(i) "Badge" shall mean a graphical element in a fixed location on a
Page designed for the delivery of Advertising that is, as of the Effective Date,
[***] or the equivalent or smaller sizes, and shall, in all cases, include all
natural evolutions thereof. A current sample of a Badge is attached hereto as
Exhibit A.
[***] Denotes language for which AltaVista requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
(j) "Bad Debt" shall mean receivables for billed Net Revenues in
which collection has not been made and, in accordance with criteria set by
AltaVista, is deemed
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uncollectable. In no event shall a receivable that is less than One Hundred and
Twenty (120) days past due be deemed uncollectable.
(k) "Banner" shall mean a graphical element in a fixed location on a
Page designed for the delivery of Advertising that is, as of the Effective Date,
[***], and shall include all natural evolutions thereof. A current sample of a
Banner is attached hereto as Exhibit A.
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of 1933,
as amended.
(l) "Barter" shall mean the exchange or trade of any unsold inventory
on the Web Site for non-monetary consideration.
(m) "Beyond-the-Banner Arrangements" shall mean any arrangement, as
now existing or hereafter developed, for material provided by or on behalf of an
Advertiser that promotes a brand or products or services and is provided for
delivery to Users on a Page or Pages but does not constitute a Standard Ad Unit.
"Beyond-the-Banner Arrangements" include, but are not limited to, the following:
(i) ad units hereafter developed other than the Standard Ad Units (whether or
not such newly-developed ad unit requires integration with the content on the
Web Site); (ii) Pages on the Web Site that are customized so that they include
co-branding with, or sponsorship by, the Advertiser during the course of the
arrangements; and (iii) Pages on the Web Site that feature content created or
licensed from the Advertiser or another third party specifically for the
advertising campaign in question. Advertising campaigns may include both Beyond-
the-Banner Arrangements and Standard Ad Units.
(n) "Button" shall mean a graphical element in a fixed location on a
Page designed for the delivery of Advertising that is, as of the Effective Date,
[***], and shall include all natural evolutions thereof. A current sample of a
Button is attached hereto as Exhibit A.
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of 1933,
as amended.
(o) "Centralized Internet Ad Company" shall mean any company that is
primarily engaged in the business of targeting, measuring and delivering
Advertising on the Internet via a network of web sites all linked to the
company's computers.
(p) "Comparable Customer" shall have the meaning set forth in Section
4.4 to this Agreement.
(q) "AltaVista" shall have the meaning set forth in the preamble to
this Agreement.
(r) "AltaVista Indemnitee" shall have the meaning set forth in
Section 7.2 to this Agreement.
(s) "Confidential Information" shall have the meaning set forth in
Section 10.1 to this Agreement.
(t) "Content Zone" shall mean either (i) any section of the Web Site
existing as of the date of this Agreement that contains editorial content,
whether such content is developed by AltaVista or licensed from a third party,
provided that the Standard Ad Units in such section had been sold by DoubleClick
prior to the Effective Date of this Agreement, or (ii)
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any currently existing section of the Web Site that offers services to Users
(e.g., translation and e-mail services) other than services that would be
offered on a Home Page, Search Results Page or Directory Page.
(u) "Content Zone Page" shall mean any Page within a Content Zone.
For purposes of this Agreement, any Page that has attributes of a Content Zone
Page shall be deemed a "Content Zone Page", even if it also has attributes of a
Directory Page. However, any Page that has the attributes of a Content Zone Page
and also of a Home Page and/or Search Results Page shall be deemed to be a "Home
Page" or "Search Results Page" only, and shall in no event be deemed a "Content
Zone Page."
(v) "DART Service" shall mean a service provided by DoubleClick to
Web site publishers for the targeted and measured delivery of Advertising
through the System from DoubleClick's servers to specified Web sites based on
criteria selected by Advertisers.
(w) "Directory Page" shall mean any Page that contains a
comprehensive directory of Web sites, whether existing on the Web Site as of the
date of this Agreement or developed in the future. Any Page that has the
attributes of a Directory Page and of a Home Page, Search Results Page and/or
Content Zone Page shall be defined in accordance with the definitions of "Home
Page", "Search Results Page" and "Content Zone Page", and shall in no event be
deemed a "Directory Page."
(x) "DoubleClick" shall have the meaning set forth in the recitals to
this Agreement.
(y) "DoubleClick Competitor" shall mean any Person that is (i)
primarily engaged in the business of third party online advertising sales,
delivery, or tracking or otherwise engaged in third party online advertising
technology or services and/or (ii) listed in Exhibit F attached hereto;
provided, however, that a Person shall be deemed a "DoubleClick Competitor" if
it owns a division, business unit or similar entity that is primarily engaged in
the business of third party online advertising sales, delivery, or tracking or
otherwise engaged in third party online advertising technology or services.
(z) "DoubleClick Represented Pages" shall mean any Pages for which
DoubleClick may sell Advertising pursuant to the terms of this Agreement.
(aa) "DoubleClick Indemnitee" shall have the meaning set forth in
Section 7.1 to this Agreement.
(bb) "Effective Date" shall have the meaning set forth in the preamble
to this Agreement.
(cc) "Existing Agreement" shall have the meaning set forth in the
recitals to this Agreement.
(dd) "Existing Orders" shall have the meaning set forth in Section
3.8(e) to this Agreement.
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(ee) "Home Page" shall mean the Page initially presented to the User
when accessing the primarily advertised Web Site URL. For the purposes of this
Agreement, any Page that has the attributes of a Home Page shall be deemed to be
the "Home Page," even if it also has attributes of any of the following: a
Search Results Page, Content Zone Page and/or Directory Page.
(ff) "HTML Modifications" shall have the meaning set forth in Section
3.7 to this Agreement.
(gg) "Impression" shall mean each occurrence of Advertising on a Page
resulting from a User accessing or visiting such Page.
(hh) "Indemnitee" shall have the meaning set forth in Section 7.3 to
this Agreement.
(ii) "Indemnitor" shall have the meaning set forth in Section 7.3 to
this Agreement.
(jj) "International Ads" shall mean Advertising offered to Non-U.S.
Advertisers.
(kk) "Local Ads" shall mean Advertising offered to U.S. Advertisers to
target Users who are located in any of five or fewer U.S. states specified by
such U.S. Advertiser.
(ll) "National Ads" shall mean Advertising offered to U.S. Advertisers
to target Users who are located in any of six or more U.S. states specified by
such U.S. Advertisers.
(mm) "Net Payable" shall have the meaning set forth in Section 4.6 of
this Agreement
(nn) "Net Revenue" shall mean the gross billings invoiced by
DoubleClick to Advertisers less rate card and volume discounts, rebates, make-
goods and third party agency commissions.
(oo) "New Inventory" shall have the meaning set forth in Section 3.5
to this Agreement.
(pp) "New Inventory Addendum" shall mean the addendum, to be signed by
both AltaVista and DoubleClick, that will confirm the New Inventory that will be
subject to this Agreement and the specific arrangements for such New Inventory.
(qq) "New Web Site Area" shall have the meaning set forth in Section
3.5 to this Agreement.
(rr) "Non-U.S. Advertiser" shall mean an Advertiser for which the
primary sales contact with respect to a given Advertising campaign is based in
Advertiser's offices outside of the United States; provided, however, that if an
Advertiser is represented by an
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advertising agency, the primary sales contact shall be deemed to be the agency's
primary contact in the Advertiser's organization.
(ss) "Page" shall mean a page on the Web Site that is linked to the
DART Service.
(tt) "Paid Advertising" or "Paid Advertisement" shall mean (i)
Advertising which is paid for by an Advertiser; (ii) Advertising that is
provided to an Advertiser free of charge as a component of a Paid Advertising
campaign; and (iii) Advertising provided as a make-good to an Advertiser so long
as DoubleClick shall not receive credit more than once for such make-good.
(uu) "Permitted Designees" shall mean any designee of AltaVista
provided that such Person is not a DoubleClick Competitor.
(vv) "Person" shall mean any individual, firm, corporation,
partnership, trust, association, joint venture, company or other entity, or any
government authority.
(ww) "Sales Policies" shall have the meaning set forth in Section 3.10
to this Agreement.
(xx) "Search Results Page" shall mean the Page on any section of the
Web Site on which the results of a keyword search powered by the AltaVista
search engine appear. For the purposes of this Agreement, any Page that has the
attributes of a Search Results Page shall be deemed to be a "Search Results
Page" only, even if it also has attributes of any of the following: Content Zone
Page or Directory Page. However, any Page that has the attributes of both a
Search Results Page and Home Page shall be deemed a "Home Page" only, and shall
in no event be deemed a Search Results Page.
(yy) "Services" shall mean, collectively, the DART Service, the Ad
Sales Service, and any other service provided by DoubleClick to AltaVista under
this Agreement.
(zz) "Standard Ad Unit" shall mean a Banner, Badge, Button, Toolbox or
Text Link.
(aaa) "Strategic Advertiser" shall mean any Person that enters into a
Strategic Advertising Arrangement.
(bbb) "Strategic Advertising Arrangement" shall have the meaning set
forth in Section 3.3 to this Agreement.
(ccc) "System" shall mean DoubleClick's proprietary DART software
technology.
(ddd) "Term" shall have the meaning set forth in Section 5.1 to this
Agreement.
(eee) "Text Link" shall mean a hypertext link in a fixed location on
a Page designed for the delivery of Advertising that is, as of the Effective
Date, a 1x1 pixel tracking gif
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(no more than two lines of text, no more than 20 characters per line), and shall
include all natural evolutions thereof. A current sample of a Text Link is
attached hereto as Exhibit A.
(fff) "Toolbox" shall mean a graphical element in a fixed location on
a Page designed for the delivery of Advertising that is, as of the Effective
Date, [***], and shall include all natural evolutions thereof. A
current sample of a Toolbox is attached hereto as Exhibit E.
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of 1933,
as amended.
(ggg) "Top Three" shall have the meaning set forth in Section 5.4 to
this Agreement.
(hhh) "Trademark Use Guidelines" shall have the meaning set forth in
Section 8.1 to this Agreement.
(iii) "Unpaid Advertising" or "Unpaid Advertisement" shall mean any
Advertisement that is not a Paid Advertisement. Examples of "Unpaid Advertising"
include (i) Advertisements that promote AltaVista, the Web Site, or their
respective products and services, and (ii) Advertisements Bartered by AltaVista
pursuant to Section 3.6.
(jjj) "U.S. Advertiser" shall mean an Advertiser for which the
primary sales contact with respect to a given Advertising campaign is based in
Advertiser's offices in the United States; provided, however, that if an
Advertiser is represented by an advertising agency, the primary sales contact
shall be deemed to be the agency's primary contact in the Advertiser's
organization.
(kkk) "User" shall mean any Person that accesses the Web Site.
(lll) "Web Site" shall mean (a) the AltaVista Web site currently
located at the URL http://www.altavista.com/ and (b) all other Web sites now or
-------------------------
hereafter owned or controlled by AltaVista (but only for so long as such Web
sites are owned or controlled by AltaVista), and all pages contained within each
of those Web sites hosted anywhere in the world. For purposes of this
definition, a Web site shall be deemed owned or controlled by AltaVista if
AltaVista owns, directly or indirectly, more than 50% of the Person that owns
the Web site. If, during the Term, AltaVista shall come to control additional
web sites through acquisitions and such web sites are subject to agreements
which existed prior to the acquisition and which prevent the inclusion of such
web site in the arrangements set forth in this Agreement, then such web sites
shall not constitute part of the "Web Site"; provided, however, that AltaVista
shall use reasonable commercial efforts to have such web sites included in the
arrangements set forth in this Agreement as soon as possible by either
terminating the preexisting agreements or not renewing the preexisting
agreements as they expire, as determined by AltaVista.
(mmm) "Year 1" shall mean the period from the Effective Date until
December 31, 1999.
(nnn) "Year 2" shall mean the period from January 1, 2000 to December
31, 2000.
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<PAGE>
(ooo) "Year 3" shall mean the period from January 1, 2001 through the
termination of this Agreement.
(ppp) "Year 2 Excluded Advertisers" shall have the meaning set forth
in Section 3.7 to this Agreement.
(qqq) "Year 3 Excluded Advertisers" shall have the meaning set forth
in Section 3.7 to this Agreement.
(rrr) "Acquisition Notice" shall have the meaning set forth in
Section 3.1(a) to this Agreement.
(sss) "Adjustment Commission" shall have the meaning set forth in
Section 3.3(e) to this Agreement.
(ttt) "Advertising Communication" shall mean a discussion, meeting or
other communication with an Advertiser concerning either a specific request for
proposal, a specific proposal, or a specific purchase that includes Advertising.
For purposes of this definition, "communication" shall include telephone calls,
faxes, letters, and email messages.
(uuu) "Aggregate Designated Keywords Impressions" shall mean the
aggregate Designated Keyword Impressions for a given period of time sold by
either DoubleClick or AltaVista.
(vvv) "AltaVista Account" shall mean an Advertiser for whom AltaVista
has the exclusive right to sell Advertising and where the primary sales contact
with respect to the majority of the Advertiser's advertising budget [***];
provided, however, that if an Advertiser is represented by an advertising
agency, the primary sales contact shall be deemed to be the agency's primary
contact in the Advertiser's organization.
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of 1933,
as amended.
(www) "Channel Report" shall have the meaning set forth in Section
3.9(b) to this Agreement.
(xxx) "CMGI Company" shall have the meaning set forth in Section
3.3(b) to this Agreement.
(yyy) "CMGI Company Advertisement shall have the meaning set forth in
Section 3.1(b) to this Agreement.
(zzz) "Designated Keywords" shall mean the 500 keywords listed in
Exhibit G. Exhibit G shall be completed by DoubleClick and delivered to
AltaVista on or before December 1, 1999.
(aaaa) "Designated Keyword Impressions" shall mean the Impressions
for Banners that are delivered on the Search Results Pages generated when a User
has searched for any one of the Designated Keywords on any area or part of the
Web Site (excluding searches when a Designated Keyword is combined with any
other search term, typed incorrectly or is
8
<PAGE>
otherwise entered in a format that is not identical to the representation of the
Designated Keyword in Exhibit G).
(bbbb) "DMZ Ad Unit" shall mean a hybrid graphical plus hypertext
Advertising element on a Search Results Page designed for the delivery of
Advertising that is, as of the Effective Date, [***] packaged with three lines
of text and all natural evolutions thereof. The DMZ Ad Unit is designed as a
single ad unit for reporting and delivery purposes and does not support
reporting at a sub-item level.
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of 1933,
as amended.
(cccc) "DoubleClick Account" shall mean an Advertiser for whom
DoubleClick has the exclusive right to sell Advertising.
(dddd) "Engage" shall have the meaning set forth in Section 3.1(c) to
this Agreement.
(eeee) "Engage Arrangement" shall have the meaning set forth in
Section 3.3(c).
(ffff) "High Value Advertising" shall have the meaning set forth in
Section 4.7 to this Agreement.
(gggg) "Red Report" shall have the meaning set forth in Section
3.9(b) to this Agreement.
(hhhh) "User Profile" shall mean the set of known, assumed or
inferred attributes about a particular User which is created by DoubleClick as a
result of applying its proprietary statistical models or selection techniques to
User information in its data alliance database.
(iiii) "User Profile-Based Advertising" shall mean Advertising that
is targeted to Users based on the User Profiles.
(jjjj) "White Label Advertising" shall have the meaning set forth in
Section 3.1(c) to this Agreement.
ARTICLE II
DART SERVICE
2.1 DART Service.
------------
(a) Subject to the terms and conditions of this Agreement,
DoubleClick hereby agrees to provide the DART Service to AltaVista for the Web
Site during the Term. Except for static Advertising that is hard-coded into
certain pages of the Web Site, all other Advertising placed on the Web Site by
AltaVista or DoubleClick shall be delivered exclusively by DoubleClick through
the DART Service. A description of the DART Service as of the date hereof is
attached hereto as Exhibit B. AltaVista shall not use any other third party ad
delivery service for the delivery of Advertising.
(b) DoubleClick grants to AltaVista the non-exclusive and non-
transferable (except as permitted pursuant to Section 11.8) right to access and
use the DART Service, which
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AltaVista can access and use on DoubleClick's Web servers by means of a unique
password issued by DoubleClick, and for the purposes of: (i) performing
projections of Advertising Impression inventories that might be available
through the DART Service, (ii) uploading and storing Advertising for delivery by
DoubleClick through the DART Service, (iii) selecting trafficking criteria for
the delivery of Advertising to Users through the DART Service, and (iv)
receiving reports of Advertising Impressions and other data related to the
delivery of Advertising by the DART Service.
2.2 AltaVista's DART Service Obligations. AltaVista shall be responsible
------------------------------------
for soliciting Advertising, except to the extent such soliciting is conducted by
DoubleClick on behalf of AltaVista pursuant to this Agreement. With respect to
all Advertising sold by AltaVista that is delivered through the DART Service,
AltaVista shall be responsible for trafficking Advertising (which shall include
the input of Advertising into the System) and handling all inquiries of any type
or nature. Trafficking of Advertising may be outsourced to DoubleClick at
AltaVista's request and for additional fees (as set forth in Article IV below).
With respect to all Advertising sold by AltaVista that is delivered through the
DART Service, AltaVista shall obtain all necessary rights, licenses, consents,
waivers and permissions from Advertisers and others to allow DoubleClick to
store and deliver Advertising and otherwise operate the DART Service on
AltaVista's behalf and on behalf of AltaVista's Advertisers, and to use any data
provided to or collected by the System, and AltaVista agrees to comply with any
further requirements of the ad insertion orders agreed with DoubleClick.
2.3 DoubleClick's DART Service Obligations. DoubleClick's sole
--------------------------------------
obligations in relation to the DART Service under this Agreement shall be (i) to
make the System available to AltaVista, (ii) to deliver Advertising through the
DART Service according to the trafficking criteria selected by AltaVista and
AltaVista's Advertisers using the System and (iii) to provide training sessions
explaining the proper use of the DART Service and the System.
2.4 Proprietary Rights and Restrictions. DoubleClick is the exclusive
-----------------------------------
supplier of the DART Service and the exclusive owner of all right, title and
interest in and to the System, all software, databases and other aspects and
technologies related to the System and DART Service, including the System, and
any enhancements thereto. AltaVista shall not use the System or any data thereby
provided except pursuant to the limited rights expressly granted in this
Agreement. AltaVista 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 AltaVista. AltaVista has the sole and exclusive right to use all
data derived by its use of the DART Service, for any purpose related to
AltaVista's business with Advertisers, provided that DoubleClick may use and
disclose the User data (other than personally-identifiable information) derived
from AltaVista's use of the DART Service pursuant to this Agreement only (i) for
DoubleClick's reporting purposes (consisting of the compilation of aggregated
statistics about the DART Service (e.g., the aggregate number of ads delivered)
that may subsequently be provided to customers, potential customers and
disclosed to the general public; (ii) if required by court order, law, or
governmental agency (including but not limited to, the Securities and Exchange
Commission); and (iii) to the extent necessary to integrate operation and
management of the Services for the Web Site within the operation and management
of the DART Service by DoubleClick for all its customers and otherwise for the
DoubleClick Network.
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ARTICLE III
ADVERTISING SALES REPRESENTATION
3.1 AltaVista's Reservation of Rights.
---------------------------------
(a) After DoubleClick's appointment of its ten (10) DoubleClick
Accounts in accordance with Section 3.2 below and subject to Section 3.3 below,
AltaVista shall have the right (exercisable in AltaVista's sole discretion) to
designate Advertisers as AltaVista Accounts in accordance with the following
schedule (the dates specified are the "commencement dates" for each tranche of
AltaVista Accounts): sixty (60) Advertisers may become AltaVista Accounts on
January 1, 2000; thirty (30) additional Advertisers may become AltaVista
Accounts on April 1, 2000; thirty (30) additional Advertisers may become
AltaVista Accounts on July 1, 2000; and thirty (30) additional Advertisers may
become AltaVista Accounts on October 1, 2000 (making an aggregate of 150
accounts on October 1, 2000). In each case AltaVista shall provide thirty (30)
days prior written notice to DoubleClick of the Advertiser that AltaVista
desires to designate an AltaVista Account (each an "Acquisition Notice"). After
------------------
AltaVista has selected an Advertiser to be an AltaVista Account and delivered an
Acquisition Notice to DoubleClick, AltaVista shall have the exclusive right to
sell Advertising to such AltaVista Account from the applicable commencement date
set forth in the schedule in this Section 3.1(a); provided, however, that if
thirty (30) days from the date of DoubleClick's receipt of the Acquisition
Notice has yet to expire at the applicable commencement date, that Advertiser
shall not be deemed to be an AltaVista Account until the thirty (30) day notice
period for the Acquisition Notice has expired. [***] The foregoing shall not
apply to an Advertiser after the expiration of thirty days from the date of
DoubleClick's receipt of an Acquisition Notice in respect of such Advertiser
and thereafter as long as such Advertiser remains an AltaVista Account. [***]
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of 1933,
as amended.
(b) Subject to Section 3.3 below, AltaVista may also sell to CMGI
Companies Advertising for the products or services of such CMGI Companies (each
a "CMGI Company Advertisement"); provided that such sales shall conform to all
------------ -------------
the terms of this Agreement, including without limitation, those with respect to
delivery through DART.
(c) Subject to Section 3.3 below, AltaVista may also enter into an
arrangement with Engage Technologies, Inc. and its subsidiaries ("Engage") which
------
shall allow Engage to sell "White Label Advertising" on the Web Site so long as
the "White Label Advertising" is delivered through DART. "White Label
-----------
Advertising" shall mean (i) Impressions for Banners that are untargeted and
- -----------
sold to Advertisers such that the Advertisers know that their advertising may
appear on the Internet, but are unaware that the advertising will be
specifically
11
<PAGE>
delivered on the Web Site and (ii) such Banners are preemptible by other
Advertising that is sold on the Web Site (i.e., bulk inventory).
(d) AltaVista retains the right to enter into Beyond-the-Banner
Arrangements with Non-U.S. Advertisers. The parties agree that both parties
shall be entitled to enter into Beyond-the Banner Arrangements with Non-U.S.
Advertisers, provided that AltaVista may not enter into any Beyond-the-Banner
Arrangements with the ten (10) DoubleClick Accounts designated by DoubleClick
pursuant to Section 3.2 below and AltaVista may not appoint any third party as
its representative for such Beyond-the-Banner Arrangements with Non-U.S.
Advertisers.
3.2 Scope of Ad Sales Representation. During the Term, subject to the
--------------------------------
limitations stated herein and AltaVista's retained rights to sell set forth in
Section 3.1 above, DoubleClick and its authorized representatives, licensees and
assigns shall be AltaVista's sole and exclusive representative with respect to
Advertising and shall have the exclusive right to enter into agreements for such
Advertising on behalf of AltaVista. In addition, on or before November 26, 1999
DoubleClick shall designate (in its sole discretion) any ten (10) current
Advertisers other than those that appear on Exhibit I, which Advertisers shall
remain DoubleClick Accounts throughout the Term and which cannot be designated
by AltaVista as AltaVista Accounts.
3.3 Limitations on Advertising Sales by AltaVista.
---------------------------------------------
(a) AltaVista agrees that during the calendar year 2000, the
Designated Keyword Impressions delivered in each month pursuant to sales made
by AltaVista to the AltaVista Accounts shall not exceed the following maximum
percentages of Aggregate Designated Keyword Impressions: [***] for each of
[***]; [***] for each of [***]; [***] for each of [***]; and [***] for each of
[***].
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of 1933,
as amended.
(b) AltaVista also agrees that during calendar year 2000 and for each
category of Advertising, the CMGI Company Advertisements (excluding those
Advertisements sold to CMGI Companies that have also been selected by AltaVista
as AltaVista Accounts) must in the aggregate represent [***] of the aggregate
Impressions delivered during the month for that category of Advertising
(aggregating Impressions for that category of Advertising sold by either
DoubleClick or AltaVista). AltaVista may not sell Advertisements to CMGI
Companies for the purpose of allowing such CMGI Companies to resell those
Advertisements to a third party. "CMGI Company" means any company which
------------
qualifies as an Affiliate (as defined in this Agreement) of CMGI, Inc. but
excluding any DoubleClick Competitor. Categories of Advertising for purposes of
this Section, shall be the categories used for pricing Advertising for
Advertisers (e.g., each size of Banner shall be a separate category). In the
event that AltaVista names CMGI Companies as AltaVista Accounts, those CMGI
Companies shall not (a) resell Advertisements to any third party and (b) be a
DoubleClick Competitor (provided that, for purposes of this Section 3.3(b) only,
CMGI, Inc. shall not constitute a DoubleClick Competitor).
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of 1933,
as amended.
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(c) Subject to the limitations set forth in this Section 3.3(c),
AltaVista may enter into an arrangement with Engage (the "Engage Arrangement")
------------------
which shall allow Engage to sell White Label Advertising according to one of the
two following structures:
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of 1933,
as amended.
(i) If the Engage Arrangement covers the entire Web Site, then
the Engage Arrangement must conform to the limitations set forth below for all
areas and parts of the Web Site:
Preemptible and Non-preemptible Scheme. As between [***] and in accordance
- --------------------------------------
with the terms of this Agreement, [***] shall have the exclusive right to sell
all non-preemptible Advertising on the Web Site. However, [***] shall be
entitled to sell preemptible Banners (i.e., bulk inventory). For the preemptible
Banners, (a) the Banners with the highest CPM shall run on the Web Site and (b)
[***] may permit [***] to sell only [***] each month of all Impressions that
are for Banners. It is understood that [***] may only sell [***] as preemptible
Banners.
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of 1933,
as amended.
(ii) If the Engage Arrangement covers only pages in the
Shopping.com Web site, then the Engage Arrangement shall allow [***] access to
preemptible Banners on Shopping.com with any residual preemptible Banner
inventory on Shopping.com after such [***] access being available for [***] to
sell.
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of 1933,
as amended.
AltaVista shall provide to DoubleClick on January 1, 2000 a written notice of
its decision to elect for one of the two Engage Arrangements described in (i) or
(ii) above.
AltaVista agrees that it may allow Engage to use only one third party sales
agent in connection with Engage's rights hereunder; provided, however, that
AltaVista's contract with Engage expressly limits Engage's rights to use third
party sales agents to just one sales agent.
In all cases, AltaVista shall ensure that Engage delivers all Advertising
through DART.
(d) DoubleClick may implement technical means through the DART
Service to monitor and ensure compliance with Sections 3.3(a), (b) and (c)
above.
(e) Each quarter, DoubleClick shall audit the (i) Designated Keyword
Impressions and CMGI Company Advertisements sold by AltaVista, (ii) the White
Label Advertising sold by Engage and (iii) calculate what percentage such
Designated Keyword Impressions represents of the Aggregate Designated Keyword
Impressions for the same period, what percentage the CMGI Company Advertising
represents of the aggregate Impressions for each category of Advertising for the
same period and what percentage the White Label Advertising represents of the
aggregate Impressions for Banners that are preemptible by other Advertising on
the Web Site. DoubleClick shall promptly notify AltaVista of the results of this
audit via an email report. The sales commissions and billing and collections
fees set forth in Section 4.3 shall be applied to all Designated Keyword
Impressions, CMGI Company Advertising and White Label Advertising that are in
excess of the amount permitted within the applicable percentages for a
particular quarter and in each case such amounts shall be calculated based on a
deemed Net Revenues amount that is equal to the average price that DoubleClick
and AltaVista sold the Designated Keyword Impressions, the Impression within the
category of
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Advertising or White Label Advertising during the same period (the "Adjustment
----------
Commission"). DoubleClick shall be entitled to offset the amount of any
- ----------
Adjustment Commission against any payments otherwise due from DoubleClick to
AltaVista under the terms of this Agreement. In addition to the above Adjustment
Commission remedy, in the event that the Aggregate Designated Keyword
Impressions sold by AltaVista exceeds the percentage permitted by Section 3.3(a)
above, the percentage of CMGI Company Advertisements exceeds the percentage
permitted by Section 3.3(b), or the percentage of White Label Advertising sold
by Engage exceeds the percentage permitted by Section 3.3(c) above, the
thresholds set forth in Sections 3.3(a), (b) and (c) above shall be reduced for
the next subsequent quarter by the number of Impressions by which AltaVista
exceeded the threshold in the prior quarter. In the last quarter of 2000,
DoubleClick's remedy under this Section 3.3(e) shall be limited to the
Adjustment Commission. In addition to the quarterly audit reports, DoubleClick
shall provide to AltaVista monthly reports detailing similar information to be
used for informational purposes only.
(f) Designations of Advertisers as AltaVista Accounts once made may
not be changed or exchanged for alternative Advertisers; provided, however, that
of the AltaVista Accounts designated on [***], up to [***] of those Advertisers
may be exchanged for alternative Advertisers (the "Returned Accounts") upon
commencement of Year 3 of the Existing Agreement and the remaining AltaVista
Accounts that have been designated by the end of calendar year 2000 shall
constitute part of the Year 3 Excluded Advertisers for purposes of Year 3 and
Section 3.7(c) of the Existing Agreement when the Existing Agreement again comes
into force on January 1, 2001. AltaVista must provide DoubleClick with at least
thirty days written notice prior to December 31, 2000 of its desire to make an
existing AltaVista Account a Returned Account. In addition, from the date that a
Returned Account ceases to be an AltaVista Account, all Advertising sold by
AltaVista to such Advertiser which has yet to be delivered shall be deemed to
have been sold by DoubleClick and AltaVista shall pay to DoubleClick the
commissions and fees required by Article IV below in respect of such Advertising
(or DoubleClick may deduct such amount from payments otherwise due to AltaVista
hereunder).
(g) Except for DoubleClick and as set forth in Section 3.1(c),
AltaVista shall not use or appoint any third party, [***], to sell any
Advertising, Beyond-the-Banner Arrangements, Merchant Listings or any other
material provided by or on behalf of an Advertiser that promotes a brand or
products or services of that Advertiser.
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of 1933,
as amended.
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 AltaVista will
------------------
regularly update the design and content and technology of the Web Site. As new
content channels (zones) are added to the Web Site, and except as provided in
Section 3.1 above, DoubleClick shall be sole and exclusive representative with
respect to such new Advertising and shall have the exclusive right to enter into
agreements for such Advertising, in accordance with Section 3.2 above.
3.6 Unsold Inventory. All unsold Advertising inventory may be Bartered by
----------------
AltaVista, subject to the fees set forth in Article IV.
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3.7 AltaVista's Ad Sales Service Obligations.
----------------------------------------
(a) AltaVista 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
Advertising 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) AltaVista agrees that DoubleClick has no responsibility to review
the contents of Pages or the Web Site.
(d) [***]
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of 1933,
as amended.
(e) AltaVista acknowledges and agrees that all Advertising 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 AltaVista
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 Advertising delivered after the Effective Date.
3.8 Dedicated Sales Specialists. Until December 31, 2000, no fewer than
---------------------------
[***] DoubleClick sales specialists, reasonably acceptable to AltaVista, 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.
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of 1933,
as amended.
3.9 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 AltaVista's prior consent.
(b) Reporting. In addition to the daily DART Service reports made
---------
available to AltaVista through DoubleClick's Web site (www.doubleclick.net),
DoubleClick shall use commercially reasonable efforts to deliver to AltaVista
within [***] following the end of the month the following reports: (i) a list of
the Advertisers that have purchased Advertising through DoubleClick, together
with a summary of the nature of the order (type of Advertising and Impressions)
and revenue generated from such Advertiser; and (ii) a [***] of the Advertising
scheduled to run on the Web Site. In addition, DoubleClick shall use
commercially reasonable efforts to deliver to AltaVista within [***] following
the end of the month the following reports: (i) monthly revenue by ad
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<PAGE>
placement report ("Red Report") and (ii) summary report of gross revenue for the
----------
Web Site ("Channel Report"). During the Term, DoubleClick agrees also to
--------------
provide AltaVista with such other reports as AltaVista 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 AltaVista 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.
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of 1933,
as amended.
(c) Restrictions. DoubleClick acknowledges that it shall abide by
------------
all reasonable restrictions placed on Advertisements on the Web Site by
AltaVista, including restrictions arising from exclusivity and non-compete
arrangements.
3.10 Rate Card. During the Term of this Agreement, AltaVista, 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, AltaVista, 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 AltaVista 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"). The parties acknowledge
--------------
and agree that both DoubleClick and AltaVista shall comply with the rate card
and the Sales Policies. The parties acknowledge that the credit policies
included in the Sales Policies are not applicable to Advertising sales made by
DoubleClick on AltaVista's behalf prior to the date this Agreement was fully
executed by the parties. Certain of the current Sales Policies are attached as
Exhibit J.
3.11 New Advertising. When new Advertising opportunities become available
---------------
on the Web Site during the Term (through the launch of a new Web Site, content
channel, page, Advertising unit or otherwise) DoubleClick's and AltaVista's
rights to sell such Advertising shall be as set forth in this Article III and
both parties' rights to promote, market and sell such new Advertising
opportunities shall commence at the same time. AltaVista shall provide
DoubleClick with reasonable advance notice in writing of all new Advertising
opportunities and shall not offer to sell any of the new Advertising until the
date on which DoubleClick's rights to sell also commence.
3.12 User Profile-Based Advertising. DoubleClick hereby agrees to sell
------------------------------
User Profile-Based Advertising to Advertisers on the Web Site, subject to
Section 3.1.
ARTICLE IV
COMPENSATION
4.1 Payments. During the Term of this Agreement, AltaVista 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 Advertising sold by DoubleClick on behalf of AltaVista, for all sales,
customer support and other services (other than billing and collections
services) that DoubleClick performs on behalf of AltaVista (which shall include
Net Revenues from Advertising sold by DoubleClick to an Advertiser prior to the
date on which AltaVista may commence sales of Advertising to that Advertiser in
accordance with
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Section 3.1(a) above, including Advertising that will be delivered after the
date on which AltaVista may commence sales of Advertising to the Advertiser) and
(iii) a billing and collections fee for all billing and collections services
performed by DoubleClick on behalf of AltaVista in relation to Advertising sold
by DoubleClick, based on the Net Revenues generated from such Advertising.
4.2 DART Services Fee.
-----------------
(a) Delivery of U.S. Ads. AltaVista shall pay the following DART
--------------------
fees for all Advertising that is delivered by DoubleClick from the Effective
Date through December 31, 2000:
[***]
Volumes shall be determined by aggregating the total number of Impressions
within a category on a worldwide basis.
[***] Denotes language for which AltaVista requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
(b) Tracking and Trafficking Fees. In addition to one of the
-----------------------------
payments required by Section 4.2(a) above, AltaVista shall also pay the
following fees to the extent that the following Services from DoubleClick are
utilized during the Term:
(i) [***]
(ii) [***]
[***] Denotes language for which AltaVista requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
(c) Delivery of International Ads. DoubleClick may impose the
-----------------------------
following CPM premiums for International Ads:
[***]
[***] Denotes language for which AltaVista requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
17
<PAGE>
(d) Pricing for Delivery of Ads Placed by AltaVista. 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 AltaVista 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.
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of 1933,
as amended.
4.3 Ad Sales Commission and Billing/Collections Fees. AltaVista 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 AltaVista and (ii) the billing
and collections fees set forth below for all billing and collections services
performed by DoubleClick in relation to Advertising sold by DoubleClick on
behalf of AltaVista, in each case based on the Net Revenues generated from all
Advertising sold by DoubleClick on behalf of AltaVista (which shall include Net
Revenues from Advertising sold by DoubleClick to an Advertiser prior to the date
on which AltaVista may commence sales of Advertising to that Advertiser in
accordance with Section 3.1(a) above, including Advertising that will be
delivered after the date on which AltaVista may commence such sales to the
Advertiser):
<TABLE>
<CAPTION>
Billing and Sales Commission to DoubleClick
Collections -----------------------------------------------------------
Period During Term Fee National Ads International Ads Local Ads
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Year 1 [***] [***] [***] [***]
- -------------------------------------------------------------------------------------------------------
Year 2 [***] [***] [***] [***]
- -------------------------------------------------------------------------------------------------------
Year 3 [***] [***] [***] [***]
- -------------------------------------------------------------------------------------------------------
</TABLE>
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
Advertising is 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 AltaVista 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 AltaVista's termination of those rights.
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of 1933,
as amended.
4.4 [***]
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of 1933,
as amended.
4.5 [***]; Sales Engineer Services. DoubleClick shall provide [***]
---------------------------------
on the DART Service at DoubleClick's offices in New York City at no charge to
18
<PAGE>
AltaVista. All additional [***] and other DoubleClick personnel days shall
be charged for at DoubleClick's customary rates.
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of 1933,
as amended.
4.6 Invoicing. [***], DoubleClick shall remit to AltaVista the Net
---------
Payable. The "Net Payable" shall mean the sum of the cash collections for
Advertising actually received by DoubleClick during the month, less amounts
payable to DoubleClick for services rendered in respect of or based on
Advertising delivered and/or sold by DoubleClick on behalf of AltaVista during
the month or still owed to DoubleClick in respect of past months: the DART
Service fees, sales commissions on amounts received, and billing and
collections fees and any other fees payable to DoubleClick pursuant to this
Agreement in total. DoubleClick shall use commercially reasonable efforts to
deliver to AltaVista within [***]. The Net Payable will be remitted to
AltaVista [***].
The bill accompanying the net payable will set forth the cash
collections generated from non-U.S. Advertisers and the costs associated with
this revenue, which amount shall be billed to AV Internet Solutions Ltd., and
the cash collections from U.S. Advertisers and the costs associated with this
revenue, which amount shall be billed to AltaVista Company.
On a calendar quarterly basis, AltaVista may charge DoubleClick an
amount equal to the applicable ad sales commission multiplied by the amount of
Bad Debt charged in the applicable quarter; provided that such amount shall
not [***] of Net Revenues recorded in such quarter. AltaVista shall notify
DoubleClick of the amount of such charge [***] after the end of calendar quarter
and DoubleClick shall pay Company the amount of such charge [***] of
DoubleClick's receipt of such notice. Notwithstanding the foregoing, DoubleClick
shall be charged the full amount of Bad Debt associated with any Advertising
sales made by DoubleClick on AltaVista's behalf in violation of AltaVista's
Sales Policies (other than deviations made with AltaVista's prior consent at the
time of the sale).
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of 1933,
as amended.
4.7 Opportunity Cost. All Advertising placed by AltaVista and DoubleClick
----------------
shall normally be subject to pre-existing Advertising sales of the other party.
"Pre-existing Advertising" shall be determined based solely on the date the
Advertising sale is entered into the System; provided, however, that the parties
shall discuss giving alternative priority to Advertising sales where to do so
would be in the best interests of both parties. In the unusual event that (i)
DoubleClick is required by AltaVista to cancel any Advertising sold by
DoubleClick on behalf of AltaVista to avoid a conflict with an advertising
agreement entered into by AltaVista and (ii) no alternative Advertising programs
acceptable to Advertiser are available through DoubleClick, AltaVista shall (i)
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, (ii) AltaVista shall be solely responsible for any compensation due to the
Advertiser whose Advertising campaign has been cancelled and (iii) AltaVista
shall indemnify DoubleClick against any other loss, damages or claims of the
Advertiser against DoubleClick that relate solely to such cancellation.
4.8 [***]
19
<PAGE>
However, the foregoing provision shall not apply to:
(i) Advertising that AltaVista, acting in good faith, identified to
DoubleClick in advance and in writing as being unavailable, if
DoubleClick nonetheless sells such Advertising after its receipt
of such notice.
(ii) High Value Advertising campaigns for which DoubleClick has not
received prior AltaVista approval; it being understood that such
approval shall not be unreasonably withheld and that failure by
AltaVista to respond within [***] (Monday-Friday) to a request
for approval shall be considered approved. "High Value
-----------
Advertising" shall mean any Advertising campaign that either (i)
------------
has a value of [***] and a duration of [***] or (ii) has a value
of [***] and duration of [***]. DoubleClick may resubmit
proposals for High Value Advertising if the Advertising in
question remains unsold five (5) days or more after the date of
the original proposal.
In the instances of (i) and (ii) above, DoubleClick shall be responsible
for any compensation due to the Advertiser whose Advertising campaign has
been cancelled.
In addition, during the thirty (30) day period following an Acquisition
Notice, the parties agree that in addition to the limitations set forth in
(i) and (ii) above, DoubleClick also agrees not to sell any Advertising to
the Advertiser that is the subject of the Acquisition Notice at rates that
are [***] of standard rate card rates for such Advertising without
receiving AltaVista's prior written consent; it being understood that such
approval shall not be unreasonably withheld and that failure by AltaVista
to respond within three (3) days to a request for approval shall be
considered approved.
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of 1933,
as amended.
4.8 [***]
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of 1933,
as amended.
20
<PAGE>
4.9 AltaVista's Costs. AltaVista 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 obligations under this Agreement including, without
limitation, expenses associated with any costs of operating and maintaining the
DART Service.
4.11 Taxes. Each party shall be responsible for the payment of taxes
-----
imposed on that party and shall withhold taxes which, in its reasonable belief,
it is required to withhold from payments to the other party. DoubleClick will be
responsible for billing, collecting and remitting, all applicable taxes on
similar levies with respect to Advertisements which it places.
ARTICLE V
TERM & TERMINATION
5.1 Term. This Agreement shall be for a period from the Effective Date
----
until December 31, 2000 (the "Term"). Upon expiration of the Term or earlier
----
termination of this Agreement pursuant to Sections 5.3 and 5.4 below, the
Existing Agreement shall automatically replace this Agreement.
5.2 Intentionally left blank.
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 by AltaVista for Certain Changes. In addition to its
--------------------------------------------
right to terminate specified above, AltaVista 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;
21
<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, [***] 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), or (iii) all or substantially all of
DoubleClick's assets.
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of 1933,
as amended.
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 Advertising to the
Pages, the duration of which Advertiser Contracts extend beyond the date on
which this Agreement has been terminated, and such Advertising 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 Advertising 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 Advertising in
question and (ii) where the parties mutually agree that DoubleClick should
continue to deliver said Advertising on behalf of AltaVista, 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 3.3(f), 7.1 through 7.3, 9.1, 9.2, and 10.1 and
Article V.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1 AltaVista's Representations and Warranties. AltaVista represents and
------------------------------------------
warrants at all times that AltaVista (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. AltaVista
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. AltaVista represents and warrants that it will not use the System or the
DART Service in a way
22
<PAGE>
or for any purpose that infringes or misappropriates any third party's
copyrights, U.S. 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 AltaVista's Indemnities. AltaVista 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 AltaVista 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 AltaVista's
representations, warranties or obligations set forth in this Agreement.
DoubleClick shall promptly notify AltaVista of all claims and proceedings
related thereto of which DoubleClick becomes aware.
7.2 DoubleClick's Indemnities. DoubleClick agrees to indemnify and hold
-------------------------
AltaVista and its Affiliates, officers, directors, employees and agents (each a
"AltaVista 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 AltaVista Indemnitee
in any action between DoubleClick and the AltaVista Indemnitee, or between the
AltaVista 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. AltaVista shall promptly notify
DoubleClick of all claims and proceedings related thereto of which AltaVista
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
23
<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) AltaVista agrees for itself and for all its controlled
subsidiaries not to (i) solicit for employment (whether directly or indirectly)
any employee of DoubleClick or (ii) employ any former employee of DoubleClick
[***] of such former employee leaving DoubleClick; and
(b) DoubleClick agrees for itself and for all its controlled
subsidiaries not to (i) solicit for employment (whether directly or
indirectly) any employee of AltaVista or (ii) employ any former employee of
AltaVista [***] of such former employee leaving the AltaVista.
For purposes of this Section 8.2, controlled subsidiaries are those subsidiary
companies where a party to this Agreement owns, directly or indirectly, 50% or
more of that company's stock.
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of 1933,
as amended.
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) ALTAVISTA DISCLAIMER. EXCEPT AS SET FORTH IN THIS AGREEMENT,
--------------------
ALTAVISTA MAKES NO WARRANTIES OF ANY KIND TO ANY
24
<PAGE>
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.
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 AltaVista to
DoubleClick under this Agreement or the Existing Agreement during the [***]
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.
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of 1933,
as amended.
ARTICLE X
CONFIDENTIALITY
10.1 Confidentiality.
---------------
(a) 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.
(b) Notwithstanding 10.1(a) above, AltaVista may disclose a copy of
this Agreement and information contained in this Agreement to [***] for the
sole purpose of [***] internal review and obtaining [***] and for no other
purposes. [***] may only disclose the Agreement to those of its employees that
have a need to know and shall not disclose the Agreement to any third party or
use it for any other purpose. AltaVista
25
<PAGE>
shall be liable to DoubleClick for any breach of the above confidentiality
restrictions by [***].
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of 1933,
as amended.
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 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:
26
<PAGE>
If to DoubleClick prior to December 3, 1999, 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
If to DoubleClick on or after December 3, 1999, to:
DoubleClick Inc.
450 West 33rd Street, 16th Floor
New York, New York 10001
Attention: Chief Executive Officer
Telecopier No.: (212) 287-7999
With a copy to:
DoubleClick Inc.
450 West 33rd Street, 16th Floor
New York, New York 10001
Attention: General Counsel
Telecopier No.: (212) 287-9704
If to AltaVista Company, to:
AltaVista Company
529 Bryant Street
Palo Alto, California 94301
Attention: General Manager of AltaVista
Telecopier No.: (650) 617-3526
27
<PAGE>
With a copy to:
AltaVista Company
529 Bryant Street
Palo Alto, California 94301
Attention: General Counsel
Telecopier No.: (650) 617-3526
If to AV Internet Solutions Ltd., to:
AV Internet Solutions, Ltd.
c/o Arthur Cox
Earlsfort Centre, Earlsfort Terrace
Dublin 2, Ireland
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 AltaVista 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 AltaVista. AltaVista 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) AltaVista's rights and obligations
under this Agreement. Except as provided in Article VII, no 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
28
<PAGE>
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 or restrict AltaVista from disclosing
this Agreement to CMGI, Inc. in accordance with Section 10.1(b) above. 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. Both parties shall each also comply with the following: (i)
disclose Confidential Information only to those of its employees, directors and
advisors who need to know the information; (ii) use its best efforts to
implement compliance procedures within its organization; and (iii) in the event
an authorized or unauthorized disclosure is materially inaccurate or misleading
in any way, promptly release a retraction and correction that has been approved
by the other Party. The foregoing remedies shall be non exclusive and the non-
breaching Party may enforce all its other rights and remedies under this
Agreement and at law and in equity.
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Dated: November 1, 1999. Dated: November 1, 1999
AV INTERNET SOLUTIONS LTD.
Signature: /s/ Brian Moore
---------------------------
Printed Name: Brian Moore
Title: Director
Dated: November 1, 1999
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EXHIBIT 10.15
ADVERTISING SERVICES AGREEMENT
This ADVERTISING SERVICES AGREEMENT (this "Agreement"), effective as of January
1, 1999 (the "Effective Date"), by and between DoubleClick Inc., a Delaware
corporation ("DoubleClick") and Compaq Computer Corporation, a Delaware
corporation (together with its direct and indirect subsidiaries and affiliates,
"Compaq").
WHEREAS, DoubleClick and Compaq are parties to that certain Procurement and
Trafficking Agreement, dated December 19, 1996, between DoubleClick and Digital
Equipment Corporation (Compaq's predecessor-in-interest), as amended by
Amendment No. 1, dated December 16, 1997 (collectively, the "Existing
Agreement")
WHEREAS, DoubleClick and Compaq desire to replace the Existing Agreement and
DoubleClick has agreed to provide certain advertising services to Compaq for the
Alta Vista Web site currently located at the URL www.altavista.com (together
with all Alta Vista content pages and any successor public Internet search and
navigation Web site or pages, the "Web Site"), subject to certain terms and
conditions;
(***)
(***) Denotes language for which AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as
amended.
WHEREAS, in furtherance of the objectives set forth above, the parties hereto
desire to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, DoubleClick and Compaq,
intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. As used in this Agreement, the following terms shall have the
meanings specified below:
(a) "Ad Sales Service" shall mean the services provided by DoubleClick on behalf
of Compaq in relation to the Web Site pursuant to Article III.
(b) "Advertiser" shall mean a Person who provides Advertising, whether directly
or through its advertising agency, to promote itself, its brands or the products
or services that it offers.
(c) "Advertiser Contract" shall mean any contract with an Advertiser.
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(d) "Advertising" or "Advertisement" shall mean material that (i) promotes a
brand or products or services and (ii) is provided to Compaq (whether directly
or through
DoubleClick) for delivery to Users. "Advertising" or "Advertisement" shall be
classified either as a Standard Ad Unit or a Beyond-the-Banner Arrangement.
(e) "Affiliate" shall mean, with respect to any Person, any other Person that,
directly or indirectly, controls, is controlled by, or is under common control
with, such Person.
(f) "Agreement" shall mean this Agreement and the schedules, exhibits and
addenda attached hereto as the same may be amended, supplemented or modified in
accordance with the terms hereof.
(g) "Average Combined Pricing" shall have the meaning set forth in Section 4.4
of this Agreement.
(h) "Average DART Only Fee" shall have the meaning set forth in Section 4.4 of
this Agreement.
(i) "Badge" shall mean a graphical element in a fixed location on a Page
designed for the delivery of Advertising that is, as of the Effective Date,
125x125 pixels (file size up to 5K bytes), 120x60 pixels (file size up to 2K or
3K bytes), 100x40 pixels (file size up to 2K bytes), 234x60 pixels (file size up
to 6K bytes), or any other size in use prior to the Effective Date on any Page
that is a DoubleClick Represented Page under this Agreement, and shall, in all
cases, include all natural evolutions thereof. A current sample of a Badge is
attached hereto as Exhibit A.
(j) "Bad Debt" shall mean receivables for billed Net Revenues in which
collection has not been made and, in accordance with criteria set by Compaq, is
deemed uncollectable. In no event shall a receivable that is less than One
Hundred and Twenty (120) days past due be deemed uncollectable.
(k) "Banner" shall mean a graphical element in a fixed location on a Page
designed for the delivery of Advertising that is, as of the Effective Date,
468x60 pixels (file size up to 12K bytes), and shall include all natural
evolutions thereof. A current sample of a Banner is attached hereto as Exhibit
A.
(l) "Barter" shall mean the exchange or trade of any unsold inventory on the Web
Site for non-monetary consideration.
(m) "Beyond-the-Banner Arrangements" shall mean any arrangement, as now existing
or hereafter developed, for Advertising on a Page or Pages other than a Standard
Ad Unit. "Beyond-the-Banner Arrangements" include, but are not limited to, the
following: (i) ad units hereafter developed other than the Standard Ad Units
(whether or not such newly-developed ad unit requires integration with the
content on the Web Site); (ii) Pages on the Web Site that are customized so that
they include co-branding with, or sponsorship by, the Advertiser during the
course of the arrangements; and (iii) Pages on the Web Site that feature content
created or licensed from the Advertiser or another third party specifically for
the advertising campaign in question. Advertising campaigns may include both
Beyond-the-Banner Arrangements and Standard Ad Units.
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(n) "Button" shall mean a graphical element in a fixed location on a Page
designed for the delivery of Advertising that is, as of the Effective Date,
88x33 pixels (files size up to 2K bytes), and shall include all natural
evolutions thereof. A current sample of a Button is attached hereto as Exhibit
A.
(o) "Centralized Internet Ad Company" shall mean any company that is primarily
engaged in the business of targeting, measuring and delivering Advertising on
the Internet via a network of web sites all linked to the company's computers.
(p) "Comparable Customer" shall have the meaning set forth in Section 4.4 to
this Agreement.
(q) "Compaq" shall have the meaning set forth in the preamble to this Agreement.
(r) "Compaq Indemnitee" shall have the meaning set forth in Section 7.2 to this
Agreement.
(s) "Confidential Information" shall have the meaning set forth in Section 10.1
to this Agreement.
(t) "Content Zone" shall mean either (i) any section of the Web Site existing as
of the date of this Agreement that contains editorial content, whether such
content is developed by Compaq or licensed from a third party, provided that the
Standard Ad Units in such section had been sold by DoubleClick prior to the
Effective Date of this Agreement, or (ii) any currently existing section of the
Web Site that offers services to Users (e.g., translation and e-mail services)
other than services that would be offered on a Home Page, Search Results Page or
Directory Page.
(u) "Content Zone Page" shall mean any Page within a Content Zone. For purposes
of this Agreement, any Page that has attributes of a Content Zone Page shall be
deemed a "Content Zone Page", even if it also has attributes of a Directory
Page. However, any Page that has the attributes of a Content Zone Page and also
of a Home Page and/or Search Results Page shall be deemed to be a "Home Page" or
"Search Results Page" only, and shall in no event be deemed a "Content Zone
Page."
(v) "DART Service" shall mean a service provided by DoubleClick to Web site
publishers for the targeted and measured delivery of Standard Ad Units through
the System from DoubleClick's servers to specified Web sites based on criteria
selected by Advertisers.
(w) "Directory Page" shall mean any Page that contains a comprehensive directory
of Web sites, whether existing on the Web Site as of the date of this Agreement
or developed in the future. Any Page that has the attributes of a Directory Page
and of a Home Page, Search Results Page and/or Content Zone Page shall be
defined in accordance with the definitions of "Home Page", "Search Results Page"
and "Content Zone Page", and shall in no event be deemed a "Directory Page."
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(x) "DoubleClick" shall have the meaning set forth in the recitals to this
Agreement.
(y) "DoubleClick Competitor" shall mean any Person that is primarily engaged in
the business of third party online advertising sales and services; provided,
however, that a Person shall be deemed a "DoubleClick Competitor" if it owns a
division, business unit or similar entity that is primarily engaged in the
business of third party online advertising sales and services.
(z) "DoubleClick Represented Pages" shall mean any Pages for which DoubleClick
may sell Advertising pursuant to the terms of this Agreement.
(aa) "DoubleClick Indemnitee" shall have the meaning set forth in Section 7.1 to
this Agreement.
(bb) "Effective Date" shall have the meaning set forth in the preamble to this
Agreement.
(cc) "Existing Agreement" shall have the meaning set forth in the recitals to
this Agreement.
(dd) "Existing Orders" shall have the meaning set forth in Section 3.8(e) to
this Agreement.
(ee) "Home Page" shall mean the Page initially presented to the User when
accessing the primarily advertised Web Site URL. For the purposes of this
Agreement, any Page that has the attributes of a Home Page shall be deemed to be
the "Home Page," even if it also has attributes of any of the following: a
Search Results Page, Content Zone Page and/or Directory Page.
(ff) "HTML Modifications" shall have the meaning set forth in Section 3.8 to
this Agreement.
(gg) "Impression" shall mean each occurrence of Advertising on a Page resulting
from a User accessing or visiting such Page.
(hh) "Indemnitee" shall have the meaning set forth in Section 7.3 to this
Agreement.
(ii) "Indemnitor" shall have the meaning set forth in Section 7.3 to this
Agreement.
(jj) "International Ads" shall have the meaning set forth in Section 3.2(b) to
this Agreement.
(kk) "Local Ads" shall have the meaning set forth in Section 3.2(c) to this
Agreement.
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(ll) "National Ads" shall have the meaning set forth in Section 3.2(a) to this
Agreement.
(mm) "Net Payable" shall have the meaning set forth in Section 4.6 of this
Agreement
(nn) "Net Revenue" shall mean (***)
(***) Denotes language for which AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
(oo) "New Inventory" shall have the meaning set forth in Section 3.5 to this
Agreement.
(pp) "New Inventory Addendum" shall mean the addendum, to be signed by both
Compaq and DoubleClick, that will confirm the New Inventory that will be subject
to this Agreement and the specific arrangements for such New Inventory.
(qq) "New Web Site Area" shall have the meaning set forth in Section 3.5 to this
Agreement.
(rr) "Non-U.S. Advertiser" shall mean an Advertiser for which the primary sales
contact with respect to a given Advertising campaign is based in Advertiser's
offices outside of the United States; provided, however, that if an Advertiser
is represented by an advertising agency, the primary sales contact shall be
deemed to be the agency's primary contact in the Advertiser's organization.
(ss) "Page" shall mean a page on the Web Site that is linked to the DART
Service.
(tt) "Paid Advertising" or "Paid Advertisement" shall mean (i) Advertising which
is paid for by an Advertiser; (ii) Advertising that is provided to an Advertiser
free of charge as a component of a Paid Advertising campaign; and (iii)
Advertising provided as a make-good to an Advertiser so long as DoubleClick
shall not receive credit more than once for such make-good.
(uu) "Permitted Designees" shall mean any designee of Compaq provided that such
Person is not a DoubleClick Competitor.
(vv) "Person" shall mean any individual, firm, corporation, partnership, trust,
association, joint venture, company or other entity, or any government
authority.
(ww) "Sales Policies" shall have the meaning set forth in Section 3.11 to this
Agreement.
(xx) "Search Results Page" shall mean the Page on any section of the Web Site on
which the results of a keyword search powered by the AltaVista search engine
appear. For the purposes of this Agreement, any Page that has the attributes of
a Search Results Page shall be deemed to be a "Search Results Page" only, even
if it also has attributes of any of the following:
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Content Zone Page or Directory Page. However, any Page that has the attributes
of both a Search Results Page and Home Page shall be deemed a "Home Page" only,
and shall in no event be deemed a Search Results Page.
(yy) "Services" shall mean, collectively, the DART Service, the Ad Sales
Service, and any other service provided by DoubleClick to Compaq under this
Agreement.
(zz) "Standard Ad Unit" shall mean a Banner, Badge, Button, Toolbox or Text
Link.
(aaa) "Strategic Advertiser" shall mean any Person that enters into a Strategic
Advertising Arrangement.
(bbb) "Strategic Advertising Arrangement" shall have the meaning set forth in
Section 3.3 to this Agreement.
(ccc) "System" shall mean DoubleClick's proprietary DART software technology.
(ddd) "Term" shall have the meaning set forth in Section 5.1 to this
Agreement.
(eee) "Text Link" shall mean a hypertext link in a fixed location on a Page
designed for the delivery of Advertising that is, as of the Effective Date, a
1x1 pixel tracking gif (file size up to 1K bytes; file size for text 500 bytes
or less; no more than two lines of text, no more than 20 characters per line),
and shall include all natural evolutions thereof. A current sample of a Text
Link is attached hereto as Exhibit A.
(fff) "Toolbox" shall mean a graphical element in a fixed location on a Page
designed for the delivery of Advertising that is, as of the Effective Date,
131x190 pixels (file size up to 8K bytes), and shall include all natural
evolutions thereof. A current sample of a Toolbox is attached hereto as Exhibit
E.
(ggg) "Top Three" shall have the meaning set forth in Section 5.4 to this
Agreement.
(hhh) "Trademark Use Guidelines" shall have the meaning set forth in Section 8.1
to this Agreement.
(iii) "Unpaid Advertising" or "Unpaid Advertisement" shall mean any
Advertisement that is not a Paid Advertisement. Examples of "Unpaid Advertising"
include (i) Advertisements that promote Compaq, the Web Site, or their
respective products and services, and (ii) Advertisements Bartered by Compaq
pursuant to Section 3.6.
(jjj) "U.S. Advertiser" shall mean an Advertiser for which the primary sales
contact with respect to a given Advertising campaign is based in Advertiser's
offices in the United States; provided, however, that if an Advertiser is
represented by an advertising agency, the primary sales contact shall be deemed
to be the agency's primary contact in the Advertiser's organization.
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(kkk) "User" shall mean any Person that accesses the Web Site.
(lll) "Web Site" shall have the meaning set forth in the recitals to this
Agreement.
(mmm) "Year 1" shall mean the period from the Effective Date until December 31,
1999.
(nnn) "Year 2" shall mean the period from January 1, 2000 to December 31, 2000.
(ooo) "Year 3" shall mean the period from January 1, 2001 through the
termination of this Agreement.
(ppp) "Year 2 Excluded Advertisers" shall have the meaning set forth in Section
3.7 to this Agreement.
(qqq) "Year 3 Excluded Advertisers" shall have the meaning set forth in Section
3.7 to this Agreement.
ARTICLE II
DART SERVICE
(a) Subject to the terms and conditions of this Agreement, DoubleClick hereby
agrees to provide the DART Service to Compaq for the Web Site during the Term.
Standard Ad Units placed on the Web Site by Compaq or DoubleClick shall be
delivered exclusively by DoubleClick through the DART Service. Subject to the
fees described in Article IV, DoubleClick agrees also to deliver through the
DART Service those Beyond-the-Banner Arrangements as may be requested by Compaq.
A description of the DART Service as of the date hereof is attached hereto as
Exhibit B.
(b) DoubleClick grants to Compaq the non-exclusive and non-transferable (except
as permitted pursuant to Section 11.8) right to access and use the DART Service,
which Compaq can access and use on DoubleClick's Web servers by means of a
unique password issued by DoubleClick, and for the purposes of: (i) performing
projections of Standard Ad Unit Impression inventories that might be available
through the DART Service, (ii) uploading and storing Standard Ad Units for
delivery by DoubleClick through the DART Service, (iii) selecting trafficking
criteria for the delivery of Standard Ad Units to Users, and (iv) receiving
reports of Standard Ad Units Impressions and other data related to the delivery
of Standard Ad Units by the DART Service.
2.2 Compaq's DART Service Obligations. Compaq shall be responsible for
soliciting Advertising, except to the extent such soliciting is conducted by
DoubleClick on behalf of Compaq pursuant to this Agreement. With respect to all
Advertising sold by Compaq that is delivered through the DART Service, Compaq
shall be responsible for trafficking Advertising
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(which shall include the input of Advertising into the System) and handling all
inquiries of any type or nature. Trafficking of Advertising may be outsourced to
DoubleClick at Compaq's request and for additional fees (as set forth in Article
IV below). With respect to all Advertising sold by Compaq that is delivered
through the DART Service, Compaq shall obtain all necessary rights, licenses,
consents, waivers and permissions from Advertisers and others to allow
DoubleClick to store and deliver Advertising and otherwise operate the DART
Service on Compaq's behalf and on behalf of Compaq's Advertisers, and to use any
data provided to or collected by the System, and Compaq agrees to comply with
any further requirements of the ad insertion orders agreed with DoubleClick.
2.3 DoubleClick's DART Service Obligations. DoubleClick's sole obligations in
relation to the DART Service under this Agreement shall be (i) to make the
System available to Compaq, (ii) to deliver Advertising through the DART Service
according to the trafficking criteria selected by Compaq and Compaq's
Advertisers using the System and (iii) to provide training sessions explaining
the proper use of the DART Service and the System.
2.4 Proprietary Rights and Restrictions. DoubleClick is the exclusive supplier
of the DART Service and the exclusive owner of all right, title and interest in
and to the System, all software, databases and other aspects and technologies
related to the System and DART Service, including the System, and any
enhancements thereto. Compaq shall not use the System or any data thereby
provided except pursuant to the limited rights expressly granted in this
Agreement. Compaq shall use the System only in accordance with reference manuals
to be supplied by DoubleClick and only in accordance with DoubleClick's standard
security procedures, as posted on the DoubleClick Web site or otherwise provided
to Compaq. Compaq has the sole and exclusive right to use all data derived by
its use of the DART Service, for any purpose related to Compaq's business with
Advertisers, provided that DoubleClick may use and disclose the User data (other
than personally-identifiable information) derived from Compaq's use of the DART
Service pursuant to this Agreement only (i) for DoubleClick's reporting purposes
(consisting of the compilation of aggregated statistics about the DART Service
(e.g., the aggregate number of ads delivered) that may subsequently be provided
to customers, potential customers and disclosed to the general public; (ii) if
required by court order, law, or governmental agency (including but not limited
to, the Securities and Exchange Commission); and (iii) to the extent necessary
to integrate operation and management of the Services for the Web Site within
the operation and management of the DART Service by DoubleClick for all its
customers and otherwise for the DoubleClick Network.
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) (***)
(***) Denotes language for which AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
(d) (***)
(***) Denotes language for which AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
(e) (***)
(***) Denotes language for which AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, 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) (***)
(***) Denotes language for which AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
(b) (***)
(***) Denotes language for which AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
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(c) (***)
(***) Denotes language for which AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
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 AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, 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.
(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) (***)
(***) Denotes language for which AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
(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 AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
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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.
(***) Denotes language for which AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
4.4 (***)
(***) Denotes language for which AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
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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 AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
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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 (***)
(***) Denotes language for which AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
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
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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;
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(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
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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
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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
(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.
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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
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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
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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
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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.
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Exhibit 10.16
STRATEGIC BUSINESS AGREEMENT
BY AND BETWEEN
COMPAQ COMPUTER CORPORATION
AND
CMGI, INC.
This Strategic Business Agreement (the "Agreement") is entered into as of
this 29th day of June, 1999 by and between Compaq Computer Corporation, a
Delaware corporation (hereinafter referred to as "Compaq," as such term is
defined below), and CMGI, Inc., a Delaware corporation (hereinafter referred to
as "CMGI," as such term is defined below).
WHEREAS, Compaq is the largest global supplier of computer systems and a
market leader in delivering Internet-enabled personal computers to consumers;
WHEREAS, CMGI is a recognized leader in the Internet economy with a
portfolio of synergistic Internet enterprises focused on providing solutions
and creating compelling Internet user experiences;
WHEREAS, Compaq and CMGI desire to work together to define mutually
beneficial vehicles for the strategic bundling, distribution, and promotion of
CMGI products and services on Compaq's products.
NOW THEREFORE, in consideration of the premises, the mutual agreements and
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. DEFINITIONS
The following definitions shall apply throughout this Agreement:
1.1 "Affiliate" shall mean, with respect to any specified Person, any
other Person that directly or indirectly through one or more
intermediaries, Controls, is Controlled by, or is under common
Control with, such specified Person.
1.2 "Aggregate User Data" shall mean (i) general User transactional or
behavioral tracking data that is not Registration Data (including
without limitation clickstreams, purchasing patterns, connect time
and number of visits); (ii) anonymous User data, which may include
individual User information without personal identification; and
(iii) any data consisting of
<PAGE>
any combination of Registration Data, anonymous User data, and/or
general User transactional or behavioral data that does not contain
or constitute Registration Data. All such data in all instances
shall be aggregated over all relevant Users redirected from Products
or Compaq Sites.
1.3 "Agreement" shall have the meaning set forth in the preamble.
1.4 "Appliance" shall mean any consumer-oriented device designed or
intended for execution of a specific application or related set of
applications.
1.5 "Closing Date" shall be the date on which the transactions
contemplated by the Purchase and Contribution Agreement between the
parties dated of even date herewith have been satisfied or waived.
1.6 "CMGI" shall mean CMGI, Inc. and its Affiliates.
1.7 "CMGI Site" shall mean any Site owned by CMGI or any CMGI Affiliate.
1.8 "Compaq" shall mean Compaq Computer Corporation and its Affiliates.
1.9 "Compaq's Area of Business" shall mean all business segments in
which Compaq sells goods or services during the applicable period.
1.10 "Compaq Labs" shall mean the [***]
[***] Denotes language for which AltaVista has requested confidential
treatment pursuant to the rules and regulations of the Securities Act of
1933, as amended.
1.11 "Compaq Site" shall mean any Site owned by Compaq or any Compaq
Affiliate, excluding any CMGI Site.
1.12 "Control" or "Controlled" shall mean that a corporation or entity
owns or directly or indirectly controls more than fifty percent
(50%) of the voting stock or other ownership interest of another
corporation or entity.
1.13 "including" shall mean including without limitation.
1.14 "Instant Internet Keyboard Button" shall mean a single button,
accessible by means of a keyboard or other input device as agreed
between the parties, that enables the functionality to access and
direct an end-user to a designated URL and/or a designated URLs
redirector.
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1.15 "Internet Browser" shall mean programs that allow for browsing the
Internet including but not limited to Microsoft Internet Explorer(R)
and Netscape Navigator(R). "Internet Browser" shall not include
browsers that are embedded or included with proprietary networks
such as AOL, Compuserve or Prodigy.
1.16 "Link" shall mean a URL (or an icon, logo, highlighted or colored
text, figure or image representing a URL) on which a user may point
and click, or otherwise send a command, to hyperlink to another Site
or page.
1.17 "Marks" shall mean trademarks, service marks, Internet domain names,
trade names, logos and designs, together with applications and
registrations of the foregoing.
1.18 "Marketing Addendum" shall mean a statement of the marketing
strategies of both parties, including joint marketing and promotion
plans, which shall be agreed to and implemented by the Executive
Coordinators prior to each Compaq product sales cycle, in accordance
with the schedules determined by the Executive Coordinators.
Marketing Addenda shall, at a minimum, contain reference to the
number and configuration of any Instant Internet Keyboard Buttons on
Products intended for sale in the next product cycle, including
where appropriate reference to the intended Links to CMGI Sites.
1.19 "Person" shall mean any individual, bank, partnership, firm,
corporation, limited liability company, association, trust, or any
other entity or organization.
1.20 "Product" shall mean Presario-branded (including successor brands or
sub-brands) consumer desktop and portable personal computers.
"Product" as used herein shall not include commercial or enterprise
computing devices, networking equipment, or consumer Appliances,
unless otherwise specified.
1.21 "Proprietary Online Service Provider" shall mean any provider of
Internet access or other network bandwidth to end-user customers for
whom the definition, allocation, distribution or programming of the
Instant Internet Keyboard Buttons or other Internet addressing
functionality is a defined requirement of distribution or resale of
its service.
1.22 "Redirect Script" shall mean a set of instructions that accepts
Internet traffic and redirects the traffic to another location.
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1.23 "Registration Data" shall mean any data collected by a party,
through registration or by any other means, that contains
information that could be used to determine the identity of a User.
1.24 "Search Engine" shall mean a general electronic information location
tool that (i) is accessible through the World Wide Web; (ii) accepts
a query in the form of words; and (iii) responds to the query by
indexing World Wide Web pages and using such index to present URL
addresses of World Wide Web pages that are relevant to the asserted
query.
1.25 "Site" shall mean a page or group of pages on the World Wide Web or
any successor online network organized under a single domain name.
1.26 "Term" shall have the meaning set forth in Section 6.1.
1.27 "User" shall mean any person who navigates to a Site.
2. COMPAQ OBLIGATIONS
2.1 Internet Traffic
----------------
2.1.1 Obligations of Compaq. During the Term, Compaq shall
---------------------
preprogram each Product prior to sale so that activation of
any Instant Internet Keyboard Button automatically loads only
the Compaq Redirect Script URLs. For Products with seven (7)
or more Instant Internet Keyboard Buttons, Compaq shall
program Compaq Redirect Script URLs to immediately direct
traffic from four (4) Instant Internet Keyboard Buttons to
the applicable CMGI Site as directed by CMGI, provided that
such CMGI Sites shall be subject to Compaq's review and
approval for suitability and appropriateness for Compaq
customers, which approval shall not be unreasonably denied.
The process for such approval shall be defined in the
Marketing Addenda. In the event that a Product is equipped
with fewer than seven (7) Instant Internet Keyboard Buttons,
the number of Redirect Script URLs directed to CMGI Sites may
be fewer than four (4), but in any event shall comprise not
less than fifty percent (50%) of the total number of Instant
Internet Keyboard Buttons. Users shall be able to reconfigure
the Instant Internet Keyboard Buttons. For any Product for
which an Instant Internet Keyboard Button is programmed or
redirected to a default portal start page, the "Home" Link of
the Internet Browser shall also be linked or redirected to
the same default portal start page.
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2.1.2 Additional Obligations. It is Compaq's intention to redirect
----------------------
Internet traffic to appropriate CMGI Sites from all Compaq
products that are equipped with Instant Internet Keyboard
Buttons (including commercial PC products and Appliances) to
the same extent as described in Section 2.1.1, subject to
availability and suitability of appropriate CMGI Sites for
the specific customer segment targeted. Subject to the
applicable obligations and exclusions set forth in this
Article 2, for Compaq-only branded Appliances, Compaq shall
program Instant Internet Keyboard Buttons, if any, in the
same manner and quantity as set forth in Section 2.1.1, to
the extent that CMGI Sites are applicable and competitive in
price and performance.
2.1.3 Excluded Products. The products subject to the provisions of
-----------------
Sections 2.1.1 and 2.1.2 shall not include (i) products that
cannot be configured pursuant to this Article because of
local law restrictions, (ii) products intended for sale in
geographic regions in which CMGI does not have a local Site
that is translated, localized, relevant and fully operational
in the specific international market, (iii) products designed
or manufactured specifically for a sponsor or affinity
program that requires the programming of a proprietary
default start page, or (iv) products for which Compaq's
customers have requested that pre-programmed Internet
functionality not be included. The parties shall work
together to coordinate international expansion and roll-out
plans, including identification of specific local
requirements and time frames for implementation.
2.1.4 Exclusions. Compaq's obligations pursuant to this Section 2:
----------
(i) are subject to contractual obligations with third parties
existing as of the date of execution of this Agreement, and
(ii) shall not apply to products or services provided by or
for a Proprietary Online Service Provider. Compaq shall
provide CMGI with a list of all such contractual obligations
within 30 days of the execution of this Agreement, and Compaq
shall use its best efforts to minimize the adverse impact of
such contractual obligations upon Compaq's obligations
hereunder. If Compaq engages in a distribution agreement with
any Proprietary Online Service provider, Compaq shall as part
of the process use its best efforts to explore opportunities
with CMGI and the Proprietary Online Service Provider to
engage CMGI as a preferred provider of portal solutions or
other content. In addition, Compaq's obligations pursuant to
this Section 2 shall terminate, at Compaq's election, if
after January 1, 2000, the Primary CMGI Portal Site fails to
be one of the twelve (12) most
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trafficked web sites for four (4) consecutive months as
measured in terms of unique visitors by Media Metrix, or such
other comparable industry metric as may be agreed between the
parties. The Primary CMGI Portal Site shall mean, for
purposes of this Agreement, the AltaVista, Shopping.com, and
Zip2 Sites (and any future Sites owned by AltaVista or any
subsidiary owned or Controlled by AltaVista) considered in
the aggregate. Within twenty-four (24) months of the Closing
Date, CMGI intends that AltaVista will be among the top three
(3) portal Sites as measured by Media Metrix.
2.2 Sale of Compaq Equipment. Subject to CMGI entering into Compaq's
------------------------
standard reseller agreement, during the Term, Compaq shall make
available to CMGI Compaq hardware and equipment for resale [***]
[***] Denotes language for which AltaVista has requested
confidential treatment pursuant to the rules and regulations of the
Securities Act of 1933, as amended.
2.3 [***]. Compaq hereby designates CMGI as a [***] It is Compaq's
-----
intention to promote, demonstrate, and display CMGI's companies and
Sites on Compaq Sites and/or Compaq products, as further defined by
mutual agreement of the parties.
[***] Denotes language for which AltaVista has requested
confidential treatment pursuant to the rules and regulations of the
Securities Act of 1933, as amended.
2.4 Designation of Internet Search Service. Subject to contractual
--------------------------------------
obligations existing as of the date of execution of this Agreement,
Compaq shall, and shall cause its Affiliates to, designate the Alta
Vista Search Engine as the only Search Engine offered by, linked to,
or promoted by each Compaq Site, provided that AltaVista maintains a
competitive Search Engine service, as determined by mutually agreed
upon industry competitiveness standards. Compaq shall provide CMGI
with a list of all such contractual obligations within 30 days of
the execution of this Agreement, and Compaq shall use its best
efforts to minimize the adverse impact of such contractual
obligations upon Compaq's obligations hereunder. Compaq shall state
on each Compaq Site that searches are "Powered By AltaVista." For
all products that contain Instant Internet Keyboard Buttons or other
features (including the Internet Browser, subject to authorization
from the Internet Browser licensor) that are specifically labeled or
otherwise identifiable as dedicated to a Search Engine, Compaq shall
not redirect users to any other Search Engine.
* * *
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* * *
2.7 Distribution Through Compaq Site Links. It is Compaq's intent to
--------------------------------------
promote certain CMGI Sites through Links on Compaq Sites, subject to
Compaq's qualification and acceptance criteria and product marking
requirements, and further subject to negotiation of acceptable terms
and conditions including license rights, pricing, and compatibility.
3. CMGI OBLIGATIONS
3.1 Revenue Share
-------------
3.1.1 During the Term, CMGI shall pay to Compaq a fee based on the
number of redirect messages directed to CMGI Sites from
Compaq, either directly or through Compaq's Redirect Script
Server (the "Redirect Fee"). The amount of the Redirect Fee
due to Compaq shall be as follows:
<TABLE>
<CAPTION>
Time Period $ per redirect
----------- --------------
<S> <C>
Closing Date - [***] [***]
[***] [***]
[***] [***]
</TABLE>
[***] Denotes language for which AltaVista requested confidential
treatment pursuant to the rules and regulations of the Securities
Act of 1933, as amended.
3.1.2 Payment of the Redirect Fee shall be due to Compaq on a
monthly basis, no later than the last day of each month for
the previous month's traffic. CMGI shall provide to Compaq,
with each payment, a full report of User traffic in a level
of detail adequate to support the accuracy of the monthly
payment.
3.1.3 No later than March 31, 2001, the parties shall agree to an
appropriate revenue target for the time period June 1, 2001
through March 31, 2002. CMGI shall have the option to extend
the Agreement for one additional year based on the same
Redirect Fee
7
<PAGE>
schedule listed in Section 3.1.1 in effect as of the previous
year if the agreed upon revenue target is met or exceeded,
and if the Primary CMGI Portal Site is among the top five (5)
trafficked Sites, as determined by MediaMetrix. If the
revenue target is not met, CMGI may, at its option, pay to
Compaq an "option fee," calculated as the difference between
the revenue target and the actual revenue for the period.
Upon payment of the option fee, CMGI may extend the Agreement
for one additional year on the same terms as if the revenue
target was achieved. Each subsequent year, prior to March 31,
the parties shall agree to an appropriate revenue and traffic
target for qualification for an additional one-year renewal
option.
3.1.4 Compaq shall have the right to inspect and audit, upon five
(5) days notice, during normal business hours and not more
than four times per year, all of CMGI's records and books of
account insofar as they relate to Redirect Fee, provided that
any such audit and inspection shall be conducted by an
independent third-party accounting firm on Compaq's behalf.
The costs of said inspection and audit shall be borne solely
by Compaq unless accounting errors amounting to five percent
(5%) or more of the applicable total are found to Compaq's
disadvantage, in which case CMGI shall promptly pay the
entire cost of said inspection and audit. CMGI shall at all
times maintain such books and records, or true duplicates
thereof, at its primary or registered offices.
3.2 The Sites to which Compaq redirects CMGI traffic shall be co-branded
and customized in accordance with marketing plans to be determined
by the parties. CMGI will not display any advertisement or include
any other promotional element of any party (other than Compaq) in
Compaq's Area of Business on any pages or CMGI products that are
linked directly to or redirected directly from Compaq Sites or
Products.
* * *
8
<PAGE>
* * *
3.6 During the Term, the AltaVista Search Engine (or its successor)
shall be run exclusively on a Compaq hardware platform, subject to
ability of the hardware to meet competitive price/performance
specifications.
3.7 CMGI agrees to work with Compaq to develop [***], with the goal that
CMGI shall launch the [***] during the [***].
[***] Denotes language for which AltaVista has requested
confidential treatment pursuant to the rules and regulations of the
Securities Act of 1933, as amended.
4. MUTUAL OBLIGATIONS
4.1 [***]
[***] Denotes language for which AltaVista has requested
confidential treatment pursuant to the rules and regulations of the
Securities Act of 1933, as amended.
4.2 Relationship Management.
4.2.1 Executive Coordinator. Compaq and CMGI shall each designate a
---------------------
corporate officer who is at least a Vice President as an
Executive Coordinator who shall be responsible for all overall
matters pertaining to this Agreement. The initial Executive
Coordinator for CMGI shall be [***]. The initial Executive
Coordinator for Compaq shall be [***]. The responsibilities of
the Executive Coordinators are as follows:
[***] Denotes language for which AltaVista has requested
confidential treatment pursuant to the rules and regulations
of the Securities Act of 1933, as amended.
4.2.1.1 Administer and coordinate the overall aspects of
this Agreement and the strategic relationship between the
parties;
9
<PAGE>
4.2.1.2 Arrange meetings, visits and consultations between
the parties concerning matters related to this Agreement,
including but not limited to all required quarterly and/or
annual business reviews; and
4.2.1.3 Review and approve plans for marketing programs to
be administered under the Joint Marketing Fund. All
expenditures from the Joint Marketing Fund must be approved
by both Executive Coordinators.
4.2.2 Quarterly Business Reviews. Both parties agree to meet at
--------------------------
least once every calendar quarter to review the basic
business terms and the business and marketing plans for the
next quarter. Topics to be addressed in each Quarterly
Business Review shall include, but shall not be limited to
the following: Strategic Plans/New Products and Services,
Advertising and Promotion Opportunities, Use of Joint
Marketing Funds, Performance Measurement of Existing Joint
Programs, Contract or Relationship Issues, including
negotiation and performance of Marketing Addenda.
4.2.3 Changes in Coordinators. Either party may replace any of the
-----------------------
people referenced in this Section by delivering written
notice of the change to the other party. The notice must be
signed by either the Executive Coordinator of the party
making the change, or by an authorized signatory of that
party. The notice shall set forth the name, business address
and telephone number of the replacement.
4.2.4 Program Management. Each party shall make available
------------------
sufficient facilities, resources and access to permit the
establishment of an on-site dedicated program management
office, as mutually agreed by the Executive Coordinators.
* * *
10
<PAGE>
* * *
11
<PAGE>
* * *
4.7 User Data. Each party shall provide to the other any Aggregate User
---------
Data that it collects from Users who are directed to CMGI Sites from
Compaq Sites or Products. All Aggregate User Data shall be made
available without the imposition of additional fees or obligations.
Subject to mutual agreement of the parties, the parties further
intend to share Registration Data to the extent such information is
collected from or related to the CMGI Sites directed from Compaq
Sites or Products, provided that sharing of Registration Data shall
be limited by and subject to the respective company privacy
policies.
4.8 Compaq Labs.
-----------
* * *
12
<PAGE>
4.8.2 New Search Technology. From time to time Compaq may disclose
---------------------
to CMGI new search technology which might be of interest to
AltaVista or CMGI for incorporation on the AltaVista Site.
CMGI shall promptly make its interest known. CMGI shall have
an option period of thirty (30) days, from the date of
disclosure, to acquire a non-exclusive license to use such
search technology on the AltaVista Site for a one-time
payment which will be identified by Compaq. Compaq and CMGI
each agree to use reasonable best efforts to enter into a
mutually acceptable license agreement within such thirty (30)
day period. If CMGI wants to obtain rights beyond a non-
exclusive license to use the identified search technology,
the parties will use reasonable best efforts to complete a
mutually acceptable license agreement within sixty (60) days.
Unless extended by mutual agreement in writing, after the
option period lapses Compaq can offer such search technology
to any third parties under any terms and conditions. In no
event shall this Agreement be interpreted as requiring Compaq
to provide any research and development services for CMGI,
unless set forth in a separate agreement.
* * *
13
<PAGE>
5. TRADEMARKS
5.1 Use of CMGI Marks. CMGI hereby grants to Compaq a non-exclusive,
-----------------
royalty-free license, in jurisdictions in which CMGI has such
rights, to use, reproduce, distribute and display the Marks owned by
CMGI in connection with its performance of the terms of this
Agreement.
5.2 Use of Compaq Marks. Compaq and its Affiliates hereby grant to CMGI
-------------------
a non-exclusive, royalty-free license, in jurisdictions in which
Compaq has such rights, to use the Marks owned by Compaq in
connection with its performance of the terms of this Agreement.
5.3 Quality Control. Each party shall have the right to exercise quality
---------------
control over the use of its Marks and the products and services with
which the Marks are used by the other party to the degree necessary,
in the sole opinion of the owner of such Marks, to maintain the
validity and enforceability of such Marks and to protect the rights
in such Marks and the goodwill associated therewith. Each party
shall, in their use of the other's Marks adhere to a level of
quality, at least as high as that used by such party in connection
with its use of its own Marks. In the event that the owner of a Mark
finds that use of the Mark by the other party in the reasonable
opinion of owner of such Mark materially threatens the goodwill of
the Mark or the rights in the Mark, the licensee of such Mark shall,
upon notice from such owner, immediately, and no later than ten (10)
days after receipt of such owner's notice, take all measures
reasonably necessary to correct the deviations or misrepresentations
in, or misuse of, the respective items.
5.4 Trademark Usage. Each party shall use the other's Marks in
---------------
accordance with sound trademark and trade name usage principles and
in compliance with all applicable laws and regulations of the United
States, including without limitation all laws and regulations
relating to the maintenance of the validity and enforceability of
such Marks and shall not use the Marks in any manner which might
tarnish, disparage, or reflect adversely on the Marks or the owners
of such Marks. Each party shall use, in connection with the other's
Marks, all legends, notices and markings as required by law. Neither
party may materially alter the appearance of another's Marks in any
advertising, marketing, distribution, or sales materials, or any
other publicly distributed materials.
14
<PAGE>
6. TERM AND TERMINATION
6.1 Term. This Agreement will become effective as of the Closing Date
----
and shall, unless sooner terminated as provided below or as
otherwise agreed, remain effective until May 30, 2002.
6.2 Termination by Mutual Consent. This Agreement may be terminated by
-----------------------------
mutual written consent.
6.3 Termination for Insolvency. Notwithstanding the foregoing, this
--------------------------
Agreement may be terminated by either party immediately upon notice
if the other party: (i) becomes insolvent; (ii) files a petition in
bankruptcy; or (iii) makes an assignment for the benefit of its
creditors.
7. REPRESENTATIONS AND WARRANTIES
7.1 Compaq Warranties. Compaq hereby represent and warrant to CMGI as of
-----------------
the date hereof that:
7.1.1 Compaq is a corporation duly organized and validly existing
under the laws of the state of its incorporation, and has all
corporate powers and all material governmental licenses,
authorizations, permits, consents and approvals required to
carry on its business as now conducted;
7.1.2 The execution, delivery and performance by Compaq of this
Agreement are within the corporate powers of Compaq and has
been duly authorized by all necessary corporate action on the
part of Compaq. This Agreement constitutes a valid and
binding agreement of Compaq enforceable against Compaq in
accordance with its terms;
7.1.3 The execution, delivery and performance by Compaq of this
Agreement requires no action by or in respect of, or filing
with, any governmental body, agency or official; and
7.1.4 The execution, delivery and performance by Compaq of this
Agreement do not and will not (i) violate the organizational
documents of Compaq, (ii) violate any applicable law,
judgment, injunction, order or decree, or (iii) require any
notice or consent or other action by any person or entity
under, constitute a default under, or give rise to any right
of termination, cancellation or acceleration of any right or
obligation of Compaq or to a loss of
15
<PAGE>
any benefit to which Compaq is entitled under, any agreement
or other instrument binding upon Compaq or any license,
franchise, permit or other similar authorization held by
Compaq.
7.2 CMGI Warranties. CMGI hereby represents and warrants to Compaq as of
---------------
the date hereof that:
7.2.1 CMGI is a corporation duly organized and validly existing
under the laws of the state of its incorporation and has all
corporate powers and all material governmental licenses,
authorizations, permits, consents and approvals required to
carry on its business as now conducted;
7.2.2 The execution, delivery and performance by CMGI, Inc.
(excluding its Affiliates) of this Agreement are within the
corporate powers of CMGI, Inc. (excluding its Affiliates) and
have been duly authorized by all necessary corporate action
on the part of CMGI, Inc. (excluding its Affiliates). This
Agreement constitutes a valid and binding agreement of CMGI,
Inc. (excluding its Affiliates) enforceable against CMGI,
Inc. (excluding its Affiliates) in accordance with its terms;
7.2.3 CMGI, Inc. shall cause its Affiliates to adhere to the terms
of this Agreement;
7.2.4 The execution, delivery and performance by CMGI of this
Agreement require no action by or in respect of, or filing
with, any governmental body, agency or official; and
7.2.5 The execution, delivery and performance by CMGI of this
Agreement do not and will not (i) violate the organizational
documents of CMGI, (ii) violate any applicable law, judgment,
injunction, order or decree, or (iii) require any notice or
consent or other action by any person under, constitute a
default under, or give rise to any right of termination,
cancellation or acceleration of any right or obligation of
CMGI or to a loss of any benefit to which CMGI is entitled
under, any agreement or other instrument binding upon CMGI or
any license, franchise, permit or other similar authorization
held by CMGI.
16
<PAGE>
8. LIMITATIONS OF LIABILITY
8.1 Limitation of Liability. Except for indemnification obligations, if
-----------------------
any, of a party pursuant to Article 10 , no party shall be liable to
another party or any other person or entity for special, incidental,
consequential, or indirect damages (including loss of good will or
business profits), or exemplary or punitive damages. No officer,
director, manager, member, or employee of any party shall have any
personal liability under this Agreement and the other parties hereby
hold such persons harmless for any liability hereunder.
8.2 Limitation of Warranties. Except as expressly set forth in this
------------------------
Agreement, each party expressly disclaims all warranties, express or
implied, including warranties of merchantability and fitness for a
specific purpose. Except as expressly set forth in this Agreement,
no party endorses, warrants, or guarantees any product or service
provided hereunder.
9. INDEMNIFICATION
9.1 Indemnification by CMGI. Except as provided in this Article, CMGI
-----------------------
will indemnify and hold Compaq and its Affiliates, officers,
directors and employees harmless from and against any and all
damages resulting from or arising out of (a) the CMGI Sites or any
other activities of CMGI, including infringement of any intellectual
property rights of any third person; (b) any misrepresentation or
breach of representation or warranty of CMGI contained herein; or
(c) any breach of any covenant or agreement to be performed by CMGI
hereunder. Notwithstanding anything to the contrary in this Section,
CMGI shall not have any obligation to indemnify Compaq for any
damages for which Compaq is obligated to indemnify CMGI under the
Assignment Agreement dated of even date herewith.
9.2 Indemnification by Compaq. Compaq will indemnify and hold CMGI and
-------------------------
its Affiliates, officers, directors and employees harmless from and
against any and all damages resulting from or arising out of (a) the
Compaq Sites or any other activities of Compaq, including
infringement of any intellectual property rights of any third
person; (b) any misrepresentation or breach of representation or
warranty of Compaq contained herein; or (c) any breach of any
covenant or agreement to be performed by Compaq or its respective
Affiliates hereunder.
17
<PAGE>
9.3 Notice of Indemnification. A party seeking indemnification pursuant
-------------------------
to this Article (an Indemnified Party) from or against the assertion
of any claim by a third person (a Third Person Assertion) will give
prompt notice to the party from whom indemnification is sought (the
Indemnifying Party); provided that failure to give prompt notice
--------
will not relieve the Indemnifying Party of any liability hereunder
(except to the extent the Indemnifying Party has suffered actual
material prejudice by such failure).
9.4 Assumption of Defense. Within five (5) business days of receipt of
---------------------
notice from the Indemnified Party pursuant to this Section, the
Indemnifying Party will have the right, exercisable by written
notice to the Indemnified Party, to assume the defense of a Third
Person Assertion. If the Indemnifying Party assumes such defense,
the Indemnifying Party may select counsel, which counsel will be
reasonably acceptable to the Indemnified Party.
9.5 Appointment of Counsel. After notice from the Indemnifying Party to
----------------------
the Indemnified Party of its election to assume the defense of such
Third Party Assertion, the Indemnifying Party shall not be liable to
the Indemnified Party under this Article for any legal or other
expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation, provided, that if there may be reasonable legal
--------
defenses available to it that are different from or in addition to
those available to the Indemnifying Party the reasonable fees,
disbursements and other charges of counsel for the Indemnified Party
will be at the expense of the Indemnifying Party or parties. It is
understood that the Indemnifying Party or parties shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all such
Indemnified Party or parties.
9.6 Failure to Defend. If the Indemnifying Party (a) does not assume the
-----------------
defense of any Third Person Assertion in accordance with this
Article; or (b) having so assumed such defense, unreasonably fails
to defend against such Third Person Assertion, then, upon five (5)
days written notice to the Indemnifying Party, the Indemnified Party
may assume the defense of such Third Person Assertion. In such
event, the Indemnified Party will be entitled under this Article as
part of its damages to indemnification for the costs of such
defense.
9.7 Settlement. The party controlling the defense of a Third Person
----------
Assertion will have the right to consent to the entry of judgment
with respect to, or otherwise settle, such Third Person Assertion
with the prior written
18
<PAGE>
consent of the other party, which consent will not be unreasonably
withheld; provided that such other party may withhold its consent if
-------------
any such judgment or settlement imposes a monetary obligation on
such other party that is not covered by the indemnification, imposes
any material non-monetary obligation, or does not include an
unconditional release of such other party and its Affiliates from
all claims of the Third Person Assertion.
9.8 Participation. The Indemnifying Party and the Indemnified Party will
-------------
cooperate, and cause their Affiliates to cooperate, in the defense
or prosecution of any Third Person Assertion. The Indemnifying Party
or the Indemnified Party, as the case may be, will have the right to
participate, at its own expense, in the defense or settlement of any
Third Person Assertion.
10. CONFIDENTIAL INFORMATION.
10.1 Definition of Confidential Information. Confidential Information
--------------------------------------
shall mean any information (whether or not in writing) relating to
or disclosed in the course of the performance of this Agreement,
which is marked as "confidential" or which is not generally known to
the public or in the trade and is or should be reasonably understood
to be confidential or proprietary to the disclosing party, including
without limitation (i) marketing and sales information and (ii)
other documentation and any analyses, compilations, studies or other
documents incorporating or developed from Confidential Information.
Confidential Information shall not include information (a) already
known to the receiving party lawfully and not in violation of any
agreement or understanding (whether or not in writing) relating to
the confidentiality thereof, (b) disclosed in published materials,
(c) obtained from any third party lawfully and not in violation of
any agreement or understanding (whether or not in writing) relating
to the confidentiality thereof, or (d) independently developed by
the receiving party without the use or inclusion of any Confidential
Information. The receiving party shall not be in breach of its
obligations with respect to Confidential Information hereunder in
the event the disclosure of any Confidential Information is required
by law, provided that prior to any such disclosure by a receiving
--------
party, the disclosing party is given ample notice to enable it to
move for a protective order.
10.2 Confidential Information. Each party hereto acknowledges that all
------------------------
title and interest, including all patents, copyrights, trade secrets
and other intellectual property rights, in the disclosing party's
(the "Disclosing Party") Confidential Information is the exclusive
property of the Disclosing
19
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Party. Each party further acknowledges that the Disclosing Party's
Confidential Information is proprietary and a trade secret of the
Disclosing Party. Each party agrees neither to do nor to permit any
act which may in any way jeopardize or be detrimental to the
validity of the Disclosing Party's patent, copyright, trade secret
or other rights in the Confidential Information.
10.3 Confidentiality. Each party shall use its best efforts to maintain
---------------
the confidentiality of any Confidential Information it receives,
including taking such steps as such party takes to maintain the
confidentiality of its own Confidential Information.
10.4 Return of Confidential Information. Upon the termination or
----------------------------------
expiration of this Agreement for any reason, each party shall at the
direction of the discloser of such Confidential Information (the
"Disclosing Party") either return all Confidential Information in
its possession or destroy such Confidential Information and certify
in writing to the Disclosing Party that it has done so.
10.5 Remedies for Breach of Confidentiality. It is understood and agreed
--------------------------------------
by both parties that in the event of a breach of this Article,
damages may not be an adequate remedy and either party shall be
entitled to injunctive relief to restrain any such breach,
threatened or actual.
10.6 Survival. Each party's respective obligations hereunder to protect
--------
Confidential Information shall survive any termination or expiration
of this Agreement or any license granted hereunder for any reason.
11. MISCELLANEOUS
11.1 Governing Law. Any question as to the validity, construction,
-------------
performance or effect of this Agreement and the transactions to
which it relates shall be construed in accordance with and subject
to the substantive laws (as opposed to the conflicts of law
provisions) of the State of Delaware and, where applicable, the laws
of the United States.
11.2 Further Assurances. Subject to the terms and conditions herein
------------------
provided, each of the parties hereto agrees to use their respective
reasonable best efforts to take, or cause to be taken, all action,
and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and
make effective the transactions contemplated by this Agreement. If
at any time after the Closing Date any further action is necessary
or desirable to carry out the purposes of this Agreement,
20
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the parties hereto shall take or cause to be taken all such
necessary action, including, without limitation, the execution and
delivery of such further instruments and documents as may be
reasonably requested by the other party for such purposes or
otherwise to consummate and make effective the transactions
contemplated hereby.
11.3 Entire Agreement. This Agreement contains the entire understanding
----------------
between CMGI and Compaq with respect to its subject matter and the
transactions contemplated hereby, supercedes all previous or
contemporaneous oral or written agreements, negotiations,
representations or understandings between them with respect thereto,
and shall not be modified except by a writing of subsequent date
hereto signed by all parties hereto. Neither the course of conduct
between the parties nor trade usage shall act to modify or alter the
provisions of this Agreement.
11.4 No Waiver. No waiver by any party of a breach of any provision of
---------
this Agreement shall operate as or be deemed to be a waiver of any
other preceding, or subsequent breach of that provision or of any
breach of any other provision of this Agreement. The failure of a
party to insist upon strict adherence to any term of this Agreement
on one or more occasions shall not be considered a waiver or deprive
that party of the right thereafter to insist upon strict adherence
to that term or any other term of this Agreement. Any waiver must be
in a writing of subsequent date hereto executed by the waiving party.
11.5 Partial Invalidity. If any portion of the Agreement, or the
------------------
application thereof in any circumstances, shall be held to be
illegal, invalid or unenforceable in any respect by a final or
unappealable order, decree or judgment of any court, this Agreement
shall be constructed as if such invalid, illegal or unenforceable
provision had never been contained herein within the jurisdiction of
such court and the Agreement shall otherwise remain in full force
and effect in such jurisdiction and in its entirety in other
jurisdictions. Additionally, in lieu of each such illegal, invalid
or unenforceable provision, there shall, within the jurisdiction of
such court finding such illegality, invalidity or unenforceability,
be added automatically as part of this Agreement a provision as
similar to such former provision as shall be legal, valid and
enforceable.
11.6 Section Headings. Section headings used herein are for informational
----------------
purposes only and shall not define nor limit the provisions of this
Agreement.
11.7 Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of CMGI, Inc. and its successors and assignees
and Compaq
21
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and its successors and assignees permitted hereunder; provided,
however, that neither party hereto may assign, subcontract,
transfer or otherwise delegate its rights or obligations hereunder,
in whole or in part, by operation of law or otherwise, without the
prior written consent of the other party, which consent shall not
be unreasonably withheld. Notwithstanding the foregoing, either
Compaq or CMGI, Inc. may assign its rights or obligations hereunder
in connection with the sale of all or substantially all of the
assets of its business related to this Agreement, whether by asset
purchase, merger or otherwise, unless the intended assignee is a
competitor of the non-assigning party. In the event of a change of
Control of the CMGI entity that holds the assets of the Alta Vista
Search Engine Site, the provisions contained in Section 2.4 hereof
shall immediately terminate at Compaq's election.
11.8 Independent Contractors. Each party agrees it is and will be an
-----------------------
independent contractor as to the other party and not an agent,
employee, partner or joint venturer of or with the other party.
Without limiting the foregoing, no party nor any officer or
employee of such will have any right to bind any other party, to
make any representations or warranties on behalf of any other
party, to accept service of process, to receive notice, or to
perform any act or thing on behalf of any other party other than as
expressly authorized by such other party in its sole discretion.
11.9 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each such counterpart shall be an original
instrument, and all such counterparts shall together constitute the
same agreement. Execution may be effectuated by delivery of
facsimiles of signature pages (and the parties shall follow such
delivery by prompt delivery or originals of such pages).
11.10 Press Releases/Statements. Except as may be required by law or by
-------------------------
the rules of any national securities exchange, no party hereto
shall issue a press release or other similar public announcement
making reference to any other party, such other party's products,
or the services provided hereunder, unless such party has received
the approval of the other party with respect to the proposed text
of such press release or announcement, which approval shall not be
unreasonably withheld or delayed. No party shall make or publish
any statement which is, or may be reasonably considered to be,
disparaging of any other party or its Affiliates, directors,
employees, products or services.
11.11 Remedies Cumulative. No remedy conferred upon any of the parties by
-------------------
this Agreement is intended to be exclusive of any other remedy, and
each and every such remedy shall be cumulative and shall be in
addition to any
22
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other remedy given hereunder or now or hereafter existing at law or
in equity.
11.12 Export Control. Each party acknowledges that data and materials if
--------------
any, supplied by one party to the other may be subject to export
controls under United States law and the applicable export controls
in other territories. Accordingly, neither party shall export or re-
export any technical data supplied by the other party, directly or
through third parties, to any source for use in any country or
countries in contravention of any export laws, regulations or
decrees of the United States Government or any agency thereof. Each
party shall be solely responsible for identifying and complying
with all laws of any jurisdiction outside the United States
regarding use of technical data and materials supplied by the other
party. Each party agrees to obtain all licenses, permits or
approvals required by any government at that party's sole cost.
Each party's obligations under this Section shall survive the
expiration or termination of this Agreement for any reason
whatsoever.
11.13 Force Majeure. Except for the failure to make payments when due,
-------------
neither party shall be liable to the other by reason of any failure
of or delay in performance of its obligations under this Agreement
to the extent such failure or delay is due to circumstances beyond
its reasonable control, including, without limitation, acts of God,
acts of the other party, acts of a public enemy, fires, floods,
wars, civil disturbances, sabotage, accidents, insurrections,
blockades, embargoes, storms, other acts of nature, explosions,
damage to its plants, labor disputes (whether or not the employees'
demands are reasonable and within the party's power to satisfy), or
acts of any governmental body (whether civil or military, foreign
or domestic) collectively referred to herein as "Force Majeure",
nor shall any such failure or delay give the other party the right
to terminate this Agreement. Each party shall use its best efforts
to minimize the duration and consequences of any failure of or
delay in performance resulting from a Force Majeure event.
* * *
11.15 No Third-Party Beneficiaries. This Agreement is for the sole
----------------------------
benefit of the parties hereto, their Affiliates, and their
permitted successors and
23
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assigns. Nothing herein, express or implied, is intended to or
shall confer upon any person or entity, other than the parties
hereto, their Affiliates and their permitted successors and
assigns, any legal or equitable right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement.
24
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed and delivered
Strategic Business Agreement as of the day and year first above written.
CMGI, INC.
By: /s/ David S. Wetherell
----------------------------------------------
Name: David S. Wetherell
--------------------------------------------
Title: Chairman of the Board, President and Chief
-------------------------------------------
Executive Officer
-------------------------------------------
COMPAQ COMPUTER CORPORATION
By: /s/ Harold F. Enright, Jr.
----------------------------------------------
Name: Harold F. Enright, Jr.
--------------------------------------------
Title: Vice President
-------------------------------------------
25
<PAGE>
Exhibit 10.17
STRATEGIC ALLIANCE AGREEMENT
This Strategic Alliance Agreement ("Agreement") is made and entered into as of
the 25th day of June, 1999 (the "Effective Date"), by and between 1stUp.Com
Corporation, a corporation organized and existing pursuant to the laws of the
State of Delaware, with principal offices at 930 Montgomery Street, Suite 200,
San Francisco, California 94133 ("1stUp") and AltaVista Company, a corporation
organized and existing pursuant to the laws of the State of Delaware, with
principal offices at 529 Bryant Street, Palo Alto, California 94301
("AltaVista"), with respect to the following facts and circumstances:
WHEREAS:
1stUp has developed a free Internet access service and AltaVista desires to
offer such service in accordance with the terms of this Agreement;
1stUp is willing to customize a version of such service with AltaVista
branding in accordance with the terms of this Agreement;
AltaVista is willing to promote this service to users of AltaVista's World
Wide Web sites in accordance with the terms of this Agreement; and
AltaVista is willing to make an investment in 1stUp in accordance with the
terms of this Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. DEFINITIONS
1.1 "AltaVista Platform" shall mean a generic set of web pages (or
customized version thereof) that may operate as a Web site. The AltaVista
Platform may contain any or all of the following: an internet index, a search
tool, advertising, or any other feature that might be desirable on an internet
homepage. AltaVista (itself or through its Affiliates) has and will enter into
third party agreements that provide for one or more of the AltaVista Platforms
to be customized and then posted live on the Internet. The customized AltaVista
Platforms may be branded using third parties' names or any combination of
AltaVista's, AltaVista's Affiliates and third parties' names. Furthermore, in
customizing the AltaVista Platforms, any amount of content, advertising or other
features may be added or deleted. For purposes of this Agreement, the term
AltaVista Platform shall also include the portal site currently located at
AltaVista.Com and/or AV.Com, and other similar sites branded with AltaVista's or
its Affiliates' names or trademarks (e.g. any and all My AltaVista pages).
1.2 "Affiliate" shall mean any person or entity directly or indirectly
controlling, controlled by or under common control with a given person or
entity.
1.3 "Impression" is generated when a visitor clicks on a button on the
Button Bar (as described in Exhibit A) in the Service Offering Window.
---------
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1.4 "Service Offering Window" shall have the meaning set forth in
Section 3.1 below.
1.5 "Service Offering" shall mean the customized Internet access
services further described in Exhibit A.
---------
1.6 "Specifications" means the specifications for the Service Offering
as set forth in Exhibit A.
---------
1.7 "Web Page" means a single file displayed through Web browser
software and made available for viewing, by means of a download to local cache
memory, over the Internet through a common protocol.
1.8 "Web Site" means any number of associated Web Pages.
2. DEVELOPMENT OF THE SERVICE OFFERING
2.1 1stUp's Obligations. 1stUp will use best commercial efforts to
-------------------
design, develop and deliver on or before July 11, 1999, a fully functioning
version of the Service Offering with all of the features and components
described in Exhibit A and conforming to the Specifications. Should 1stUp fail
to do so by July 11, 1999, AltaVista reserves the right to terminate this
Agreement immediately.
2.2 AltaVista's Obligations. AltaVista will use best commercial efforts
-----------------------
to assist in the design development and prototyping of the Service Offering.
2.3 The parties agree that any delay by either party in providing the
deliverables for which it is the responsible party will extend the delivery date
for subsequent deliverables by either party on a one-for-one basis for each day
of the delay.
3. THE SERVICE OFFERING
3.1 Service Offering Window. The Service Offering will include the
-----------------------
Service Offering Window as described in Exhibit A, on which [***] will be
---------
links to an AltaVista Web Site portal, [***], at AltaVista's
discretion. The Service Offering will begin with [***] total displayed in
the Button Row (as described in Exhibit A). Any [***] in the number of
---------
buttons is subject to [***]. The [***] for AltaVista will not diminish in
prominence from inital implementation without AltaVista's consent. Additional
buttons shall have functionalities designated by 1stUp, provided that no links
shall be provided to Web Sites belonging to the following networks: [***].
AltaVista maintains right to modify list of excluded sites [***]. Also, any
functionalities displayed in the Service Offering Window must comply with
AltaVista's existing contracts or commitments; for example, 1stUp can only
provide links to AltaVista's current bookseller and travel partners. [***]
must be approved by AltaVista. AltaVista shall have the right [***] for
buttons it does not control.
[***] Denotes language for which AltaVista requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
2
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3.2 Service Offering Hosting and Features. 1stUp will maintain the
-------------------------------------
Service Offering at all times during the term of this Agreement. The Service
Offering will be designed so that the first Web Page viewed by users of the
Service Offering shall be a page designated by AltaVista. 1stUp will use best
commercial efforts to fix non-conformities and bugs in the software. The Service
Offering will include the most current version of 1stUp's software. 1stUp will
use best efforts to make a technical contact available to AltaVista twenty-four
hours (24) per day, three-hundred sixty-five (365) days per year, to support the
Service Offering. Initially, the technical contact shall be: [***]. 1stUp
and AltaVista shall work jointly to provide hosting of the Service Offering
during the term of this Agreement.
[***] Denotes language for which AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
4. SERVICE OFFERING MARKETINGAND USER INFORMATION
4.1 Registration of Users. 1stUp shall enlist up to [***] users of
---------------------
the Service Offering from the period commencing on or before [***] and ending
[***]. If during that period 1stUp enlists [***] users, 1stUp may enlist
additional users of the Service Offering as mutually agreed by the parties. A
user shall be "enlisted" if the user downloads the Service Offering software and
selects the dial-up service.
[***] Denotes language for which AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
4.2 Rights in User Information. Subject to the license grant below,
--------------------------
[***] all right, title and interest in and to all user information collected by
1stUp in the course of implementing the Service Offering ("User Information").
[***] will establish [***] policies for the use of that information.
[***] Denotes language for which AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
4.3 Promotion of the Service Offering by AltaVista. AltaVista shall
----------------------------------------------
promote the Service Offering in the broadest manner that AltaVista determines is
consistent with its business and the business of its Affiliates, provided,
however, that AltaVista's only commitment with respect to promotion is that it
will include on its homepage located at www.altavista.com, a link to 1stUp.com's
-----------------
Service Offering. Such link shall be formatted and placed at AltaVista's sole
discretion.
5. JOINT ACTIVITIES
5.1 Press Release. AltaVista and 1stUp will work together to develop
-------------
a product launch press release, citing 1stUp as the technology provider for the
Service Offering. AltaVista and 1stUp will make the release available on their
respective web sites and will distribute the release via their standard press
release avenues, provided, that the timing, placement and format of the release
will be subject to the sole discretion of the disclosing party. AltaVista and
1stUp shall use commercially reasonable efforts to develop press releases of new
developments (such as system and software upgrades, end-user growth milestones,
etc.) and agree not to make any public announcement or disclosure without giving
the other party reasonable opportunity to comment thereon.
6. COMPENSATION FOR SERVICE OFFERING WINDOW
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6.1 Service Offering Window Compensation. AltaVista shall pay to 1stUp
------------------------------------
an amount equal to [***] for each Impression leading to an AltaVista source
generated by the Service Offering Window during the term of this Agreement,
commencing after the date on which the Service Offering is accepted by AltaVista
in accordance with this Agreement.
[***] Denotes language for which AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
6.2 Reports. After the end of each calendar quarter during the term
-------
of this Agreement, 1stUp shall provide to AltaVista a report of the total number
of Impressions for all buttons generated by the Service Offering Window. 1stUp
shall also submit to AltaVista an invoice for the amounts due under Section 6.1
for the reported calendar quarter. During the term of this Agreement AltaVista
shall pay such amounts no later than [***] after receipt of the invoice.
[***] Denotes language for which AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
6.3 No Other Costs. Subject to AltaVista's payment obligations under
--------------
this Section 6, the Service Offering shall be developed, customized and
maintained by 1stUp at its sole cost and expense. Although 1stUp and AltaVista
shall work jointly to provide hosting of the Service Offering, hosting also
shall be at 1stUp's sole cost and expense, except for hosting of the software
download, which will be at AltaVista's expense.
7. COMPENSATION FOR ALTAVISTA ACTIVITIES
7.1 Payments. During the term of this Agreement 1stUp shall pay to
--------
AltaVista the amount of [***] actually received from third party advertisers and
sponsors on the Service Offering Window (other than AltaVista) less total
accrued (a) access charges from 1stUp's access service provider; (b) e-mail
charges from service providers; and (c) third party call and customer support
charges.
[***] Denotes language for which AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
7.2 Reports. After the end of each calendar quarter during the term
-------
of this Agreement, 1stUp shall provide to AltaVista a report of the total
amounts due under Section 7.1. 1stUp shall pay to AltaVista the amounts due
under Section 7.1 for the reported month no later than [***] after the end of
the reported month.
[***] Denotes language for which AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
8. INVESTMENT BY ALTAVISTA
8.1 Stock Purchase Agreement. Concurrently with the execution of this
-------------------------
Agreement, the parties are entering into a Stock Purchase Agreement (the "Stock
Purchase Agreement"), pursuant to which, at the closing, which will occur on or
before [***] after the Effective Date, AltaVista shall make a [***] to 1stUp in
exchange for an aggregate of [***] of [***] of 1stUp (which represents [***] of
the currently outstanding capital stock of 1stUp.com), having substantially the
rights, preferences and privileges set forth in the Stock Purchase Agreement and
subject to all of the terms and conditions set forth therein.
[***] Denotes language for which AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
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8.2 Upon closing of this agreement and Stock Purchase Agreement,
AltaVista has right to [***] to 1stUp [***]. AltaVista maintains right to this
position as long as AltaVista holds a investment stake in 1stUp worth more than
[***].
[***] Denotes language for which AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
8.3 Additional Investors. 1stUp shall be entitled to issue to
--------------------
additional individual investors up to the number of shares of its [***] equal
to an aggregate value of [***].
[***] Denotes language for which AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
8.4 Option. 1stUp hereby grants AltaVista a [***], exercisable
------
at any time prior to [***], to purchase [***], at an exercise price to be
negotiated at the time of exercise (the "Option"), subject to the following
conditions:
(a) AltaVista and 1stUp agree to negotiate in good faith regarding
the [***] and the rights, preferences and privileges of the capital stock
underlying the Option;
(b) The Option shall terminate upon the earlier to occur of (A)
the closing of a merger of 1stUp with or into another entity in which the
holders of voting securities of the 1stUp immediately prior to such transaction
will hold less than 50% of the voting securities of the surviving entity or the
entity that controls such surviving entity and (B) the closing of the first
registered public offering of Common Stock of 1stUp pursuant to a firm
commitment underwriting; provided, however, that AltaVista receives notice of
such transaction at least 20 days prior thereto; and
(c) Upon exercise of the Option, AltaVista shall sign such
additional documentation as 1stUp.com may reasonably request, including
investment representations, a right of first refusal with respect to transfers
of stock by AltaVista and a 180-day market stand-off agreement in connection
with an initial public offering.
[***] Denotes language for which AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
9. WARRANTIES.
9.1 1stUp. 1stUp represents, warrants and covenants to AltaVista that
-----
(i)1stUp has the power and authority to enter into this Agreement, to grant the
licenses contained herein, and to otherwise perform its obligations hereunder,
and (ii) the Service Offering does not and will not violate any third party
right, and its use by AltaVista and its Affiliates in accordance with the
license granted hereunder will not violate any third party right. EXCEPT AS
SET FORTH ABOVE, 1STUP MAKES NO WARRANTIES TO ALTAVISTA, EITHER EXPRESS OR
IMPLIED, AND HEREBY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
9.2 AltaVista. AltaVista represents, warrants and covenants to 1stUp
---------
that it has the power and authority to enter into this Agreement, to grant the
licenses contained herein, and to otherwise perform its obligations hereunder.
EXCEPT AS SET FORTH ABOVE, ALTAVISTA MAKES NO WARRANTIES TO 1STUP, EITHER
EXPRESS OR IMPLIED,
5
<PAGE>
AND HEREBY DISCLAIMS ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
10. INDEMNIFICATION
10.1 Each party ("Indemnitor") shall indemnify, defend and hold
harmless the other party and its Affiliates and each of their respective
officers, directors, employees and agents (each, an "Indemnified Party") against
any claim, suit, damages, losses, expenses and costs incurred by such
Indemnified Party (i) in connection with a claim by any third party for alleged
infringement of any U.S. patent, trademark, copyright, or other intellectual
property right relating to the promotion, representation or use of the products
provided by the Indemnitor hereunder (which, in the case of 1stUp, means the
Service Offering, and in the case of AltaVista, means any of its deliverables
hereunder), or (ii) as a result of the breach of the representation and warranty
provided in Section 9; but only if the Indemnified Party (a) promptly notifies
Indemnitor in writing of the action (provided that any failure to do so shall
operate as a bar to indemnification hereunder only to the extent the failure is
materially prejudicial to the Indemnitor); (b) permits Indemnitor full authority
to defend or settle the action (except to the extent that the action would
impose any restrictions upon the Indemnified Party, in which case consent is
required); and (c) cooperates with, and provide all available information,
assistance and authority to, Indemnitor to defend or settle the action.
11. MANAGEMENT OF RELATIONSHIP.
11.1 Press Committee Meetings. AltaVista and 1stUp will establish a
------------------------
press committee which, during system downtimes, will meet to jointly develop and
deliver public statements regarding the downtime.
11.2 Press Committee Members. The press committee members shall
-----------------------
serve as the primary source of communication with the other party on press
release matters. The members shall have first tier responsibility for resolving
disputes that may arise hereunder with respect to the scope or direction of the
relationship contemplated by this Agreement. The initial committee members for
1stUp and AltaVista shall be selected by each party separately and specified
prior to launch of the Service Offering. Each party shall promptly advise the
other of any change of member or of his or her address, telephone number, or E-
mail address.
12. TERM AND TERMINATION.
--------------------
12.1 Term. This Agreement shall become effective on the Effective
----
Date and shall remain in full force and effective for a period of 2 years from
the Effective Date or until terminated pursuant to this Section 12.
12.2 Events of Default by AltaVista. 1stUp shall have the right to
------------------------------
terminate this Agreement and its further obligations hereunder upon the
occurrence of any of the following events of default (subject to AltaVista's
ability to cure or remedy such event as described in Section 12.4):
6
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(a) AltaVista is involved in any voluntary or involuntary
bankruptcy proceeding or any other proceeding concerning insolvency,
dissolution, cessation of operations, or reorganization of indebtedness and the
proceeding is not dismissed within 60 days;
(b) AltaVista becomes unable to pay its debts as they mature in
the ordinary course of business or makes an assignment for the benefit of its
creditors; or
(c) AltaVista is in material default of any provision of this
Agreement.
12.3 Events of Default by 1stUp. In addition to AltaVista's
--------------------------
termination rights under Section 2.1 of this Agreement, AltaVista shall have the
right to terminate this Agreement and its further obligations hereunder upon the
occurrence of any of the following events (subject to 1stUp's ability to cure or
remedy such events as described in Section 12.4):
(a) 1stUp becomes involved in any voluntary or involuntary
bankruptcy proceeding or any other proceeding concerning insolvency,
dissolution, cessation of operations, or reorganization of indebtedness and the
proceeding is not dismissed within 60 days;
(b) 1stUp becomes insolvent or unable to pay its debts as they
mature in the ordinary course of business or makes an assignment for the benefit
of its creditors; or
(c) 1stUp is in material default of any provision of this
Agreement.
12.4 Right to Cure Event of Default. Upon the occurrence of any
------------------------------
event of default entitling a party to terminate this Agreement, the non-
defaulting party may send notice of termination, specifying the nature of the
default, to the other party. The non-defaulting party shall permit 30 calendar
days, following the date of such notice to enable the other party to cure the
default to the non-defaulting party's satisfaction (assuming that the default is
susceptible of cure). Failure to cure the default shall result in termination
without further notice by the non-defaulting party, unless such non-defaulting
party extends the cure period by written notice or withdraws the default notice.
12.5 Duties Upon Termination. Upon expiration or termination of this
-----------------------
Agreement, each party shall return or destroy the Confidential Information (as
defined herein) of the other party. All amounts owing shall be accelerated and
shall become immediately payable. Either party may request in writing that the
other party certify that it has complied with its obligations hereunder. Upon
expiration of this Agreement, in the event that AltaVista desires to continue to
offer the Service Offering or a similar offering, AltaVista will offer 1stUp the
opportunity to continue providing the Service Offering on terms acceptable to
AltaVista, before offering a similar opportunity to any third party. If
agreement is not reached, AltaVista and 1stUp will work together to migrate
customers to the new solution.
12.6 Survival. The rights and obligations of the parties pursuant to
--------
Sections 1, 4, 7, 8, 9, 10, 12.6, 13, 14, 15, 17 18, and 18 shall survive
termination or expiration of this Agreement for any reason.
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13. LICENSES AND OWNERSHIP.
----------------------
13.1 Service Offering Software License. 1stUp hereby grants to
---------------------------------
AltaVista and its Affiliates, during the term of this Agreement, a non-
exclusive, worldwide, non-transferable, royalty-free and irrevocable license,
under all of 1stUp's intellectual and other proprietary rights, to store, copy,
publicly display, publicly perform, distribute and transmit the Service
Offering, in object code format, throughout the Web Pages generated or served
from the AV Platforms and to make the Information available to users of the AV
Platforms to be viewed, downloaded or copied, for their personal, non-commercial
use in any form deemed appropriate by AltaVista.
13.2 Trademark License. Each of AltaVista and 1stUp grants to the
-----------------
other party and their respective Affiliates, during the term of this Agreement,
a non-exclusive, non-transferable, royalty free right to display during the term
of this Agreement the trademarks and logos made available by such party for the
purposes expressly outlined in this Agreement, subject to the terms of this
Agreement and such party's standard trademark usage. In the event either party
determines that the other's use of the applicable trademarks or service marks is
inconsistent with the applicable trademark or service mark holder's quality
standards, then upon written request and within a reasonable time, the
applicable party shall conform such trademark or service mark usage to the
appropriate party standards. If either party fails to conform the applicable
trademark use or service mark usage, then the owner of the marks shall have the
right to suspend use under the terms of this Agreement.
13.3 Retained Rights. Except as otherwise provided in this Agreement,
---------------
1stUp shall own and retain all right, title, and interest in and to any
technology or information otherwise developed or created solely by 1stUp,
including any intellectual property rights therein.
13.4 AltaVista Intellectual Property Rights. Except as otherwise
--------------------------------------
provided herein, AltaVista shall own and retain all right, title, and interest
in and to any technology or information otherwise developed or created solely by
AltaVista, including any intellectual property rights therein.
13.5 Joint Intellectual Property Rights. The parties shall agree on
----------------------------------
the ownership of any jointly developed intellectual property rights prior to
commencing with the development of work that is likely to lead to the creation
of such rights.
14. LIMITATION OF LIABILITY.
-----------------------
EXCEPT FOR ANY LIABILITY ARISING OUT OF A BREACH OF THE CONFIDENTIALITY
PROVISIONS OF THIS AGREEMENT SET FORTH IN SECTION 15 HEREOF AND SECTION 9
HEREOF, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOSS OF
MARKET OR OPPORTUNITY AND/OR INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE
HOWSOEVER ARISING (WHETHER OR NOT ARISING OUT OF THE NEGLIGENCE OF 1STUP OR
ALTAVISTA, OR THEIR RESPECTIVE EMPLOYEES OR AGENTS) IN CONNECTION WITH THE
SUBJECT MATTER OF THIS AGREEMENT, PURSUANT TO ANY CLAIM IN CONTRACT, NEGLIGENCE,
TORT, STRICT LIABILITY, OR OTHER THEORY.
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15. CONFIDENTIALITY.
---------------
15.1 Confidentiality Obligations.
---------------------------
(a) "Confidential Information" is any information disclosed by
one party to the other in connection with this Agreement and which the receiving
party knows or has reason to know is regarded as confidential information by the
disclosing party. The Confidential Information will include, but will not be
limited to, trade secrets, the structure, sequence and organization of the
source code of computer software, marketing plans, techniques, processes,
procedures and formulae. For each item of Confidential Information, the party
disclosing the item shall be called the "Disclosing Party," and the party
receiving the item shall be called the "Receiving Party."
(b) The Receiving Party shall hold all Confidential Information
of the Disclosing Party in trust and confidence, and protect it as the Receiving
Party would protect its own confidential information (which, in any event, shall
not be less than reasonable protection) and shall not use such Confidential
Information for any purpose other than that contemplated by this Agreement.
Unless agreed by the Disclosing Party in writing, the Receiving Party shall not
disclose any Confidential Information of the Disclosing Party, by publication or
otherwise, to any person other than employees and contractors (such as contract
manufacturers or software developers) who (i) are bound to written
confidentiality obligations consistent with and at least as restrictive as those
set forth herein and (ii) have a need to know such Confidential Information for
purposes of enabling a party to exercise its rights and perform its obligations
pursuant to this Agreement. The foregoing confidentiality obligation shall be
effective for a period of [***] after first disclosure of the Confidential
Information pursuant to the terms of this Agreement, provided however, that each
party will comply with any obligations of confidentiality as may be imposed
pursuant to agreements with third parties for longer periods if the Disclosing
Party discloses to the other in writing such obligations of confidentiality that
may be imposed pursuant to such agreements with third parties at the time of
disclosure.
15.2 Exceptions. The obligations specified in Section 15.1 shall not
----------
apply to any Confidential Information to the extent that:
(a) it is already known to the Receiving Party without
restriction prior to the time of disclosure by the Disclosing Party;
(b) it is acquired by the Receiving Party from a third party
without confidentiality restriction;
(c) it is independently developed or acquired by the Receiving
Party by employees or contractors without access to such Confidential
Information;
(d) it is approved for release by written authorization of the
Disclosing Party;
(e) it is in the public domain at the time it is disclosed or
subsequently falls within the public domain through no wrongful action of the
Receiving Party;
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(f) it is disclosed pursuant to the requirement of a
governmental agency or disclosure is permitted or required by operation of law,
provided that the Receiving Party use its best efforts to notify the Disclosing
Party in advance of such disclosure and seeks confidential treatment for such
Confidential Information.
15.3 Confidentiality of Agreement. Each party agrees that the terms
----------------------------
and conditions of this Agreement shall be treated as Confidential Information;
provided that each party may disclose the terms and conditions of this
Agreement: (a) to legal counsel; (b) in confidence, to accountants, banks, and
financing sources and their advisors; (c) in connection with promotional and
marketing activities permitted by this Agreement; and (d) in confidence, in
connection with the enforcement of this Agreement or rights under this
Agreement.
16. Related Agreements. Both parties are entering into the Rewards Software
agreement. In addition, the parties agree to enter into a Source Code Escrow
Agreement with a mutually agreed escrow agent (the "Source Code Escrow
Agreement") on or before the closing under the Stock Purchase Agreement, relying
upon Section 365(n) of the Bankruptcy Code to support the escrow. 1stUp agrees
that its consent on the terms and provisions of the Source Code Escrow Agreement
will not be unreasonably withheld.
17. JURISDICTION AND APPLICABLE LAW.
-------------------------------
17.1 Arbitration. Any claim, dispute, or controversy arising out of
-----------
or in connection with or relating to this Agreement or the breach or alleged
breach thereof will be addressed first by mediation and, if not resolved, will
be submitted by the parties to arbitration by the American Arbitration
Association in the County of Santa Clara, State of California, United States of
America under the commercial rules then in effect for that Association, except
as provided herein. Each party will choose one arbitrator within 30 days of
receipt of the notice of intent to arbitrate. Within 60 days of receipt of the
notice of intent to arbitrate, the two arbitrators will choose a neutral third
arbitrator who will act as chairman. All chosen arbitrators must have experience
related to the subject of the dispute. If no arbitrator is appointed within the
times herein provided, or any extension of time that is mutually agreed upon,
the Association will make such appointment within 30 days of such failure. The
parties will be entitled to discovery as provided in Sections 1283.05 and 1283.1
of the Code of Civil Procedure of the State of California or any successor
provision, whether or not the California Arbitration Act is deemed to apply to
the arbitration. The award rendered by the arbitrators will include costs of
arbitration, reasonable attorneys' fees, and reasonable costs for expert and
other witnesses, and judgment on such award may be entered in any court having
jurisdiction thereof. Nothing in this Agreement will be deemed as preventing
either party from seeking injunctive relief (or any other provisional remedy)
from any court having jurisdiction over the parties and the subject matter of
the dispute as necessary to protect either party's name, proprietary
information, trade secrets, know how, or any other proprietary rights.
17.2 Choice of Forum. The parties hereby submit to the jurisdiction
---------------
of, and waive any venue objections against, the United States District Court for
the Northern District of
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California, San Jose Branch and the Superior and
Municipal Courts of the State of California, Santa Clara County, in any
litigation arising out of the Agreement.
17.3 Governing Law. This Agreement shall be governed by and
-------------
construed under the laws of the United States and the State of California,
without regard to choice of law provisions.
18. MISCELLANEOUS.
-------------
18.1 Event of Force Majeure. If the performance of this Agreement
----------------------
or any obligations hereunder is prevented, restricted, or interfered with by
reason of acts of God, acts of an governmental authority, riot, revolution,
fires, or war, or other cause beyond the reasonable control of the parties
hereto ("Force Majeure"), the party so effected shall be excused from such
performance until such Force Majeure is removed, provided that the party so
effected shall use its best efforts to avoid or remove such causes of non-
performance and shall continue performance hereunder with the utmost dispatch
whenever such causes are removed. In no event shall this provision apply to
excuse a party from any payment obligations under this Agreement.
18.2 Compliance with Export Control. The parties agree not to export
------------------------------
or re-export, directly or indirectly, (i) any technical data received from the
other party pursuant to this Agreement, or (ii) any product, process, or
technical data using such received technical data, to any country to which such
export or re-export is restricted or prohibited by United States or other
relevant laws, without obtaining prior written authorization from the relevant
government authorities as required by such laws.
18.3 Waiver. Any waiver of breach or default pursuant to this
------
Agreement shall not be a waiver of any other subsequent default. Failure or
delay by either party to enforce any term or condition of this Agreement shall
not constitute a waiver of such term or condition.
18.4 Severability. To the extent that any provision of this
------------
Agreement is found by a court of competent jurisdiction to be invalid or
unenforceable, that provision notwithstanding, the remaining provisions of this
Agreement shall remain in full force and effect and such invalid or
unenforceable provision shall be deleted .
18.5 Assignment. Neither party may assign, voluntarily, by operation
----------
of law, or otherwise, any rights or delegate any duties under this Agreement
(other than third-party technical infrastructure and the right to receive
payments) without the other party's prior written consent, and any attempt to do
so without that consent will be void; provided, however, that AltaVista may
assign any of its rights or obligations under this Agreement in connection with
a sale of substantially all of its assets, merger, public offering or other
reorganization transaction. 1stUp may also assign any of its rights or
obligations under this Agreement, except to the following companies listed
below, in connection with a sale of substantially all of its assets, merger,
public offering or other reorganization transaction. 1stUp cannot assign any of
its rights or obligations to the following companies: [***]. AltaVista
maintains right to modify list
[***] Denotes language for which AltaVista requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
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<PAGE>
of excluded sites at its sole discretion. This Agreement will bind and inure
to the benefit of the parties and their respective successors and permitted
assigns.
18.6 Authority. Each party warrants to the other party that it has
---------
the authority to enter into this Agreement and that all necessary corporate or
other approvals have been obtained.
18.7 Notices. Any notice required or permitted pursuant to this
-------
Agreement shall be in writing delivered by hand, overnight courier, telecopy,
facsimile, or certified or registered mail to the address listed below and shall
be effective upon receipt:
Notices to 1stUp:
1stUp.Com
[***]
[***]
[***]
Notices to AltaVista:
AltaVista
[***]
[***]
[***]
With a copy "Attn: Legal Department"
[***] Denotes language for which AltaVista has requested confidential treatment
pursuant to the rules and regulations of the Securities Act of 1933, as amended.
18.8 Amendment. No alteration, waiver, cancellation, or any other
---------
change or modification in any term or condition of this Agreement shall be valid
or binding on either party unless made in writing and signed by duly authorized
representatives of both parties.
18.9 Counterparts. This Agreement may be executed in one or more
------------
counterparts, including facsimiles, each of which shall be deemed to be a
duplicate original, but all of which, taken together, shall be deemed to
constitute a single instrument
18.10 Entire Agreement. The terms and conditions herein contained,
----------------
including all Exhibits hereto, constitute the entire agreement between the
parties with respect to the subject matter of this Agreement and supersede any
previous and contemporaneous agreements and understandings, whether oral or
written, between the parties hereto with respect to the subject matter hereof,
including without limitation the Initial Term Sheet, but not including the Stock
Purchase Agreement and the Rewards Software agreement. There are no other
agreements, understandings, representations, or promises between the parties
with respect to the subject matter of this Agreement.
18.11 Construction. This Agreement is the product of negotiation
------------
between the parties and their respective counsel. This Agreement will be
interpreted fairly in accordance with its terms and conditions and without any
strict construction in favor of either party. Any ambiguity shall not be
interpreted against the drafting party.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized representatives as of the Effective
Date.
1stUp.com Corporation AltaVista Company
By: /s/ Charles Katz By: /s/ [Signature Illegible]
------------------------------- ----------------------------
Name: Charles Katz Name:
----------------------------- --------------------------
Title: President, CEO Title:
---------------------------- -------------------------
Date: June 25, 1999 Date: June 25, 1999
----------------------------- --------------------------
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