41 Madison Avenue, 22nd Floor
New York, NY 10010
212/693-0001
Click
DoubleClick
www.doubleclick.net
DART(TM) SERVICE AGREEMENT FOR PUBLISHERS
TERMS AND CONDITIONS
1. Agreement. DoubleClick, Inc. ("DoubleClick") and You hereby enter into the
agreement set forth in these Terms and Conditions and in the Cover Page
(collectively, this "DART Service Agreements" or "Agreement"), as of the
Effective Date set forth on the Cover Page. All capitalized items not otherwise
defined in these Terms and Conditions shall have the meanings as defined on the
Cover Page. "Advertiser shall mean any entity or person that desires to
advertise their own products or services. "Publisher" shall mean any entity or
person that desires to use the DART Service to target and measure advertisements
for Advertisers on their own Web site.
2. DART Service. The DART Service (the "Service") is a service provided by
DoubleClick to Publishers for targeted and measured delivery of ad banners from
DoubleClick's servers to the Web Sites set forth on the cover page of this
Agreement ("Target Sites"). The ad banners are displayed to visitors
("Visitors") to the Target Sites based on criteria selected by You and Your
Advertisers.
3. Ad Management Systems. You and DoubleClick understand that You are required
to use DoubleClick's proprietary Ad Management System software technology (the
"System") in order to receive the Service. Accordingly, DoubleClick grants to
You the non-exclusive and non-transferrable right to access and use the System,
which You can access and use only on DoubleClick's Web servers by means of a
unique password chosen by You, and only for the purposes of: (i) performing
projections of ad banner impression inventories that might be available through
the Service, (ii) uploading and storing ad banners for delivery by the Service,
(iii) selecting trafficking criteria for the delivery of ad banners to Target
Sites and Visitors, and (iv) receiving reports of ad banner impressions and
other data related to the delivery of ad banners by the Service.
4. Your Obligation. You shall be solely responsible for soliciting all
Advertisers, trafficking of ad banners (which shall include the input of ad
banners into the System) and handling all inquiries of any type or nature. You
shall obtain all necessary rights, licenses, consents, waivers and permissions
from Advertisers, Visitors and others, to allow DoubleClick to store and deliver
ad banners and otherwise operate the Service3 on Your behalf and on behalf of
You Advertisers, and to use any data provided in or collected by the System. You
further represent that You have read, and will conform to DoubleClick's
statements on privacy that can be found on the DoubleClick Web site. You further
agree that advertisements provided to DoubleClick and/or delivered on behalf of
You, and Your other promotional and marketing activities in connection with the
use of the Service, including the Target Sites, shall not be deceptive,
misleading, obscene, defamatory, illegal or unethical.
5. DoubleClick's Obligations. DoubleClick's sole obligations hereunder shall be
(i) to make the System available to You, (ii) to deliver ad banners through the
Service according to the trafficking criteria selected by You using the System,
(iii) to make customer service personnel available by telephone for support
twenty-four hours per day, seven days per week and (iv) to provide six training
days at DoubleClick's premises explaining the proper use of the Service and the
System. A "training day" is defined as a full day training session for one of
Your employees. You can divide the training days in any manner You deem
appropriate, such as having three employees attend two sessions each, six
employees attend one session each, or one employee attend all six sessions. The
cost for such training sessions is included in the Upfront Fee. If You require
additional training or training on Your site, DoubleClick shall provide such
training to You at DoubleClick's standard published rates for such training. For
training on Your Site, You agree to reimburse DoubleClick for its actual travel
and lodging expenses. You shall not permit any of Your employees to access and
use the Service or the System unless any such employee has successfully
completed the training session and has been so certified by DoubleClick.
6. Fees. You shall pay DoubleClick the fees set forth on the Cover Page to this
Agreement. The fees may include an Upfront Fee and Monthly Service Fees. The
Upfront Fee is a one-time, non-creditable, non-refundable fee for Your use of
the Service and the System, payable upon execution of this Agreement. The
Monthly Service Fees are recurring, non-refundable, non-creditable fees, payable
within thirty (30) days after receipt of an invoice from DoubleClick for such
fees. The Monthly Service Fee shall be based on the number of ad banner
impressions delivered through the Service on behalf of You each month, divided
by one thousand (1,000) and multiplied by the Monthly Service Fee CPM rate set
forth on the Cover Page to this Agreement. If Your Monthly Service Fee is less
than the Minimum Monthly Service Fee in any given month, You shall owe
DoubleClick the Minimum Monthly Service Fee for that month. To the extent that
the average file size of all ad banners delivered via the Service in a given
month ("Average Ad Size") exceeds the Ad Size Limit set forth on the Cover Page,
the Monthly Service Fee payable for that month shall be increased by an amount
that shall be calculated by subtracting the Ad Size Limit from the Average Ad
Size, diving that difference by the Ad Size Limit, and multiplying the quotient
by the Monthly Service Fee CPM rate set forth on the Cover Page of this
Agreement. All fees hereunder shall be denominated in U.S. dollars and paid by
wire transfer to an account to be designated by DoubleClick, or by other means
expressly agreed to in writing by DoubleClick, or by other means expressly
agreed to in writing by DoubleClick. You shall also be responsible for and shall
pay any applicable sales, use or other taxes or duties, tariffs or the like
applicable in provision of the Service (except for taxes on DoubleClick's
income). Late payments will be subject to late fees at the rate of one and one
half percent (1.5%) per month, or, if lower, the maximum rate allowed by law. If
You fail to pay fees invoiced by DoubleClick within thirty (30) days following
the payment due date. DoubleClick shall have the right to suspend performance of
the Services without notice to You; such Service not be reinstated until You pay
all such overdue amounts and an additional reinstatement fee of $1,000. In
addition, You also agree to pay any attorneys' fees and/or collection costs
incurred by DoubleClick in collecting any past due amounts from You.
7. Proprietary Rights and Restriction. DoubleClick is the exclusive supplier of
the 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 Service, including the System, any enhancements thereto and
any materials provided to You by DoubleClick through the System or otherwise.
You may not use the System except pursuant to the limited rights expressly
granted in this Agreement. You 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
sited or otherwise notified to You.
8. Data. You have the sole and exclusive right to use all data derived from Your
use of the Service, for any purpose related to Your business; provided that
DoubleClick may use and disclose the Visitors' data (other than personally
identifiable information) derived from Your use of the Service only (i) for
DoubleClick's reporting purposes, consisting of compilation of aggregated
statistics about the Service (e.g., the aggregate number of ads delivered) that
may be provided to customers, potential customers and the general public; and
(ii) if required by court order, law or governmental agency. As part of the DART
service, DoubleClick will supply You with unlimited Standard Reports available
on the Admanage Interface. DoubleClick can supply customized reports that are
not available on the Admanage Interface at an additional cost.
9. Term. Unless terminated earlier in accordance with the termination rights set
forth in this Agreement, the term of this Agreement shall commence on the
Effective Date and continue in effect until December 31, 2000 (the "Term").
10. Termination. At any time during the Term, this Agreement shall terminate (i)
thirty (30) days after DoubleClick's notice to You if the Service Fee for any
month following the third month of the Term is less than the Minimum Monthly
Service Fee set forth on the Cover Page to this Agreement, (ii) thirty (30) days
after a party's notice to the other party that such other party is in breach
hereunder, unless the other party cures such breach within said thirty (30) day
period or (iii) ten (10) days after DoubleClick's notice to You of DoubleClick's
reasonable determination that You are using the Service or the System in such a
manner that could damage or cause injury to the Service or the System or reflect
unfavorably on the reputation of DoubleClick (i.e. the Target Sites begin
serving pornographic content). If this Agreement is terminated by DoubleClick
due to a breach by You. You are required to promptly pay DoubleClick the Minimum
Monthly Service Fee for the balance of the Term.
10. Indemnification. You agree to indemnify and hold DoubleClick and its
officers, directors, employees and agents (each a "DoubleClick Indemnitee")
harmless from and against any and all third party 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 You and the DoubleClick Indemnitee, or between
the DoubleClick Indemnitee and any third party or otherwise) arising out of or
in connection with (i) the breach of any of Your representations, warranties or
obligations set forth in this Agreement, (ii) Your use of the Service or the
System other than as permitted herein, or (iii) any claim by any Advertiser
arising from Your arrangement to display Advertisers' Advertising on the Target
Sites.
DoubleClick agrees to indemnify and hold You and Your officers, directors,
employees and agents (each "Your Indemnitee") harmless from and against any and
all third-party claims, actions, losses, damages, liability, costs and expenses
including, without limitation, reasonable attorneys' fees and disbursements
incurred by Your Indemnitee in any action between DoubleClick and Your
Indemnitee, or between Your Indemnitee and any third party or otherwise) arising
out of or in connection with the breach of any of DoubleClick's representations,
warranties or obligations set forth in this Agreement.
12. WARRANTIES AND DISCLAIMER. DoubleClick represents and warrants that the
System was developed by DoubleClick and may be used by You without infringement
or misappropriation of any third party's copyrights, trademarks or trade secrets
or U.S. patents issued as of the Effective Date. You acknowledge that the
Service and the System can be used to target, measure and traffic advertisements
in many different ways and based on many different types of data. You represent
and warrant that You will not use the Service or the System in a way or for any
purpose that infringes or misappropriates any third party's intellectual
property or personal rights. EXCEPT AS SET FORTH IN THIS AGREEMENT, DOUBLECLICK
MAKES NO WARRANTIES OF ANY KIND TO ANY PERSON WITH RESPECT TO THE SERVICE, THE
SYSTEM OR ANY AD BANNER OR OTHER DATA SUPPLIED THEREBY, WHETHER EXPRESS OR
IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR NONINFRINGEMENT.
13. Limitation and Exclusion of Liability. Except as otherwise set forth in the
Agreement, DoubleClick shall not be liable to You or any other third party for
any loss, cost, damage or expense incurred in connection with the availability,
operation or use of the Service, the System or any ad banner or other data
supplied thereby, including, without limitation, for any unavailability or
inoperability of the System or the Internet, technical malfunction, computer
error or loss or corruption of data, or other injury, damage or disruption of
any kind related thereto, unless DoubleClick has directly caused such loss,
cost, damage or expense through its gross negligence or intentional misconduct.
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 such party has been advised of the possibility
thereof. Each party's maximum aggregate liability shall not exceed the total
amount paid by You to DoubleClick under this Agreement during the twelve (12)
month period prior to the first date the liability arose.
12. Confidentiality The terms of this Agreement, and information and data that
one party (the "Receiving Party") has received or will receive from the other
party (the "Disclosing Party") about the Service, the System and other matters
are proprietary and confidential information ("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. The
Receiving Party agrees that for the Term and for two (2) years thereafter, the
Receiving Party will not disclose the Confidential Information to any third
party, nor use the Confidential Information for any purpose not permitted under
this Agreement. 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) or was
already lawfully in the Receiving Party's possession at the time of receipt of
the information from the Disclosing Party.
15. Independent Contractor Status. Each party shall be and act as an independent
contractor and not as partner, joint venturer or agent of the other.
16. Modifications and Waivers. This Agreement represents the entire
understanding between DoubleClick and You and supersedes all prior agreements
relating to the subject matter of this Agreement. No failure or delay on the
part of either party in exercising any right, power or remedy under this
Agreement shall operate as a waiver, nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise or the
exercise of any other right, power or remedy. Unless otherwise specified, 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 from the terms of this Agreement, shall be effective only if its
made or given in writing and signed by both parties.
17. Assignment. This Agreement and rights hereunder are not transferrable or
assignable without prior written consent of the non-assigning party; provided,
however, that this Agreement may be assigned by either party (a) to a person or
entity who acquires substantially all of such party's assets, stock or business
by sale, merger or otherwise and (b) to an affiliate of such party.
18. Applicable Law. This Agreement shall be governed by the law of New York,
without reference to its conflict of laws, rules or principles, and the United
States.
19. Audit of the System. On a monthly basis, the System is independently audited
by ABC Interactive, a third-party auditor. Upon request, DoubleClick agrees to
provide You with a copy of the reports prepared by ABC Interactive relating to
the System. DoubleClick agrees to provide You with the same rights to copies of
the reports if DoubleClick enters an agreement with a third-party auditor other
than ABC Interactive at some later date.
20. General. 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 effecting the validity or enforceability of such
provisions in any other jurisdiction. No failure or omission by either party in
the performance of any obligation under 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 reasonable control of such party, including but not
limited to the following: 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: first, storm, flood, earthquake,
accident, acts of the public enemy, war, rebellion, Internet brown-out,
insurrection, riot, invasion, strikes, or lockouts. All notices, demands and
other communications provided for or permitted under this Agreement shall be
made in writing to the parties at the addresses on the Cover Page and shall be
sent by registered or certified first-class mail, return receipt requests,
telecopies, courier service or personal delivery and shall be deemed received
upon delivery.
41 Madison Avenue, 22nd Floor
New York, NY 10010
212/693-0001
Click
DoubleClick
www.doubleclick.net
DART(TM) SERVICE AGREEMENT FOR PUBLISHERS
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You agree to pay DoubleClick, Inc., all of the fees and other charges specified
below and DoubleClick, Inc. agrees to provide the DART Service to You, all in
accordance with the attached Terms and Conditions. Both You and DoubleClick,
Inc. agree that this Cover Page and the attached Terms and Conditions
(collectively, the "DART Service Agreement" or "Agreement"), may be updated from
time to time by replacing or adding further signed attachments to this
Agreement.
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Your Company Wordcruncher Contact: Dan Lunt
Name So. W. Canyon Crest Rd. Phone: 801-816-9904
and Alpine, UT Fax: 801-756-8198
Address: 84004 E-Mail:
Your Billing Contact: Mike Schouten
Address, if Phone: 801-816-9904
Different: Fax:
E-Mail:
Web Site(s): www.wordcruncher.com
Fees Upfront Fee due on signing US$ 4500
Monthly Service Fee per 1000 ad banner impressions (CPM) (see chart below)
Ad Size Limit: 12 Kbytes Minimum Monthly Service Fee: US$ 500*
*Effective February 1, 2000 /s/ RC
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Custom MONTHLY SERVICE FEE
Arrangements -------------------
Number of Revenue Generating Ad Impressions
Delivered by DART Service Per Month Cost Per Thousand
----------------------------------- -----------------
From 1 to 1,000,000 $1.40
From 1,000,001 to 5,000,000 $1.25
From 5,000,001 to 10,000,000 $1.05
From 10,000,001 to 20,000,000 $0.90
From 20,000,001 to 30,000,000 $0.75
From 30,000,001 to 40,000,000 $0.65
From 40,000,001 to 50,000,000 $0.55
From 50,000,000+++ $0.45
Example of Monthly Service Fee Circulation
------------------------------------------
If the number of ad impressions delivered by the Service in the
month is 6,750,000
(i) Divide into Volume Tiers
Tier 1: 1,000,000
Tier 2: 4,000,000
Tier 3: 1,750,000
(ii) Divide each tier amount by 1,000 and then multiply by the
applicable Monthly Service Fee rate
Tier 1: (1,000,000 / 1,000) x $1.40 = $1400
Tier 2: (4,000,000 / 1,000) x $1.25 = $5000
Tier 3: (1,750,000 / 1,000) x $1.05 = $1837.50
----------
Monthly service Fee $8237.50
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Fee for non-revenue generating house ads redirected to
Your servers for delivery on Your bandwidth
(on a CPM basis) US$ 0.20
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The undersigned confirm their mutual agreement to these arrangements as of the
Effective Date.
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DOUBLECLICK INC. YOUR COMPANY NAME: WCTI
(Please print)
Signature: /s/ Signature: /s/
----------------------------- ----------------------------
Printed Name: Aaron Mittman Printed Name: Dan Lunt
Title: Director, Direct Sales N. America Title: President/CEO
Effective Date: _______________________
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DOUBLECLICK(R) and DART(TM) are trademarks of DoubleClick Inc.,
(c)1998 DoubleClick Inc.
All rights reserved.