ADFORCE-TM- SERVICES AGREEMENT ADSMART NETWORK
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Exhibit 10.32
Agreement with Adsmart Network, Inc.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
SERVICES AGREEMENT
This Services Agreement ("Agreement") is entered into as of June 11, 1999
(the "Effective Date") between Adsmart Network, Inc., a Delaware corporation
with offices at 100 Brickstone Square, 5th Floor, Andover, MA 01810, and
AdForce, Inc., a Delaware corporation with offices at 10590 North Tantau Avenue,
Cupertino, CA 95014 ("AdForce").
INTRODUCTION
A. AdForce provides an Internet advertising management and delivery
service (the "AdForce Service") which enables each user of the AdForce Service
to manage advertising on its Web site, a network of Web sites, and other on-line
environments. AdForce provides each user of the AdForce Service a "client-side"
software application (the "Client") to enable the user to place ad tags, to
schedule, monitor and modify advertising, and to generate reports on such
advertising. AdForce maintains server complexes from which it will
electronically deliver Adsmart scheduled advertising to online environments
containing AdForce ad tags.
B. Adsmart wishes to use, and AdForce has agreed to provide, the AdForce
Service pursuant to the terms and conditions of this Agreement.
The parties hereby agree as follows:
1. ADFORCE SERVICE. The AdForce Service includes: (a) the delivery of
"Impressions" (defined as the receipt of a request for an advertisement
made via an AdForce ad tag) by AdForce, verified monthly by the Audit
Bureau of Verification Services, Inc. or another third party auditor chosen
by AdForce; (b) AdForce customer support services described in Section 2
below, (c) the targeting features described in EXHIBIT B; and (d) the suite
of standard reports listed in EXHIBIT B. Fees for the AdForce Service are
set forth on EXHIBIT A.
AdForce intends to add additional features, upgrades, modifications or
enhancements ("Features") to the AdForce Service from time to time, such
as, but not limited to, demographic targeting and reporting, certain
tracking technologies, registration verification/data enhancement,
additional reports and other services. AdForce will give Adsmart access to
any such new Features that are made generally available in the AdForce
Service as soon as they become available. These new Features will, in
AdForce's sole discretion, either be included in the AdForce Service
without charge or be subject to additional fees. Adsmart may, however,
accept or decline any new Features that are subject to additional fees.
2. ADFORCE CUSTOMER SUPPORT. AdForce Service will provide Adsmart telephone
customer support from the hours of 6 a.m. to 6 p.m. PST, Monday through
Friday, excluding major holidays. Adsmart will also have accesss to AdForce
Customer Support services twenty-four (24) hours per day, seven (7) days
per week via cell phone or pager. Finally, AdForce will dedicate an
Customer Support representative to Adsmart. Adsmart will be responsible for
scheduling campaigns and providing other support to its customers and
advertisers, but may elect at any time to convert to AdForce's Platinum
service, subject to additional fees, in which case AdForce will assume such
support.
3. ADSMART OBLIGATIONS. Adsmart agrees to use the AdForce Service to serve not
less than ninety percent (90%) of Adsmart's total monthly ad volume;
provided, however, that Adsmart shall not be required to use the AdForce
Service
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TO THE OMITTED PORTIONS.
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for any Adsmart ad-serving performed, as of the Effective Date, by Engage
Technologies, Inc. ("Engage"), until AdForce can demonstrate to the
reasonable satisfaction of Adsmart that "Clickstream Data" (as defined in
Section 6 below) associated with such ads will be collected and provided to
Engage. For such volumes, Adsmart further agrees to implement the AdForce
ad tags as described in the AdForce 2.6 User Guide and help documentation
AdForce has provided to Adsmart, and to schedule advertising for Adsmart's
network of Web sites or other on-line properties using the AdForce Client.
AdForce agrees to provide Adsmart not less than thirty (30) days prior
written notice of any material changes in the procedures described in the
AdForce 2.6 User Guide or other process documentation provided to Adsmart;
certain imminent releases are referenced on EXHIBIT A. Adsmart agrees to
provide AdForce rolling 90-day volume forecasts of Impressions to be
delivered using the AdForce Service, updated at the beginning of each
calendar month.
4. LICENSE/LIMITATIONS ON USE. Subject to the terms and conditions of this
Agreement, AdForce hereby grants to Adsmart, contingent on timely payment
of fees due AdForce, a non-exclusive, non-transferable license for the term
of this Agreement to use the Client internally and solely in connection
with the AdForce Service. AdForce shall have the sole and exclusive
ownership of all right, title and interest in and to the Client, any
enhancements thereto and in any materials and data provided to Adsmart by
AdForce. Adsmart shall not copy, modify, alter, sell, distribute or
sublicense the Client or reverse assemble, reverse compile or otherwise
attempt by any other method to create or derive the source programs of the
Client, nor authorize or contract with third parties to do the same.
Adsmart shall not use the Client or the AdForce Service for any purpose
other than managing Adsmart's advertising on its own Web sites and on sites
for which Adsmart is providing ad sales services.
5. CONFIDENTIALITY; DATA. The terms of the Confidentiality Addendum attached
hereto as EXHIBIT C are incorporated herein by reference. Any passwords to
the AdForce Service provided to Adsmart, , AdForce source code, , are
confidential and proprietary to All data collected or stored by AdForce in
managing and delivering ads for Adsmart which specifically pertain to
Adsmart or ads delivered for Adsmart, including, but not limited to,
information about sites in the media plan, impression limits, ad costs,
campaign results, and click-through or transaction rates (collectively
"Campaign Data"), shall be owned by, and be proprietary and confidential
to, Adsmart. Accordingly, AdForce may not use said Campaign Data for any
purpose other than the delivery of the AdForce Service under this Agreement
on behalf of Adsmart; provided, however, that AdForce may use such Campaign
Data for reporting or other purposes where such information is aggregated
with campaign data from other AdForce customers and/or not specifically
identifiable as Adsmart information. Adsmart and AdForce shall jointly own
all data collected or stored as a side effect of serving or tracking ads on
behalf of Adsmart that is not Campaign Data, having all association with
Adsmart and its customers, if any, removed ("Clickstream Data"). AdForce
can use Clickstream Data for any purposes that do not expose Campaign Data
to any third party, and is specifically authorized to provide a copy of
such Clickstream Data to Engage for the duration of this Agreement for
purposes of building user profiles in the "Engage Knowledge" profiling
application, to use such Clickstream Data locally to build a local copy of
such profiles using AdForce's licensed copy of Engage Knowledge and any
upgrades or extensions thereof, and to use profiles obtained from Engage
and/or generated locally to serve targeted advertising to any and all
AdForce customers, subject only to AdForce's separate fee obligations to
Engage. Adsmart may request at any time during the term hereof, or any
renewal term, to receive copies of Clickstream Data from AdForce as
described below. AdForce will use commercially reasonable efforts to
implement the necessary mechanisms with Adsmart to supply such data, and
shall supply the data at the following rates: [*] per month for files
delivered weekly for the preceding week, and [*] per month for files
delivered monthly for the preceding month. AdForce will not be required to
store information in excess of two (2) months, but will use commercially
reasonable efforts to support Adsmart's requests for longer storage,
subject to additional fees. Notwithstanding any other provision of this
Agreement, AdForce will not use Clickstream Data to create or sell profiles
except through Engage or as permitted with Adsmart's prior written consent.
6. WARRANTY. Each party warrants that its is free to enter into this Agreement
and that this Agreement constitutes the valid and binding obligation of
such party, enforceable in accordance with its terms. AdForce further
warrants that except for events beyond AdForce's control, including but not
limited to Internet access outages or other disruptions and other
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TO THE OMITTED PORTIONS.
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events of force majeure, (a) the AdForce Service will materially conform
to the functionality described in the AdForce User Guide and shall meet
the performance requirements set forth in EXHIBIT D, (b) AdForce either
owns or has the right to use all hardware and software components of the
AdForce Service and the provision of the AdForce Service will not
infringe on any U.S. intellectual property right of any third party, and
(c) all software, hardware and information technology used or employed
in the AdForce Service, including the Client, provided pursuant to this
Agreement will be "Year 2000 Compliant." Year 2000 Compliant is defined
herein as information technology that will: (i) consistently and
accurately handle data information before, during and after January 1,
2000, including but not limited to accepting date input, providing date
output, and performed calculations or comparisons on dates or portions
of dates; (ii) respond to two-digit date input in a way that resolves
any ambiguity as to century in a disclosed, defined and predetermined
manner, and (iii) store and provide output of data information in ways
that are unambiguous as to century. EXCEPT AS SPECIFIED IN THIS SECTION,
ADFORCE HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, IN CONNECTION WITH THIS
AGREEMENT.
7. INDEMNIFICATION. (a) Subject to subsection (b), Adsmart shall defend,
indemnify and hold harmless AdForce from any claims, liability, damages and
costs (including reasonable costs and attorneys' fees, "CLAIMS") arising
out of or relating to advertising placed by Adsmart using the AdForce
Service, including, without limitation, Claims based on allegations of
libel, false or misleading advertising, invasion of privacy or rights of
publicity; provided that: (i) AdForce promptly notifies Adsmart of such
Claims; (ii) Adsmart has sole control of the defense and settlement of such
Claims and is not responsible for any settlement that it does not approve
in writing; and (iii) AdForce renders all assistance required, at Adsmart's
expense. (b) AdForce shall defend, indemnify and hold harmless Adsmart from
any Claims for infringement arising out of or relating to Adsmart's use of
the Client or the AdForce Service pursuant to this Agreement; provided
that: (i) Adsmart promptly notifies AdForce of such Claims; (ii) AdForce
has sole control of the defense and settlement of such Claims and is not
responsible for any settlement that it does not approve in writing; and
(iii) Adsmart renders all assistance required, at AdForce's expense. If
AdForce believes that an injunction may be entered against Adsmart's use of
the Client, AdForce may, at its option, (A) obtain a license permitting
such use, (B) modify the Client to avoid the alleged infringement, or (C)
if it cannot reasonably do either of the foregoing, terminate Adsmart's
license to the Client and this Agreement. NOTWITHSTANDING ANY PROVISION OF
THIS AGREEMENT TO THE CONTRARY, ADFORCE'S INDEMNIFICATION OBLIGATIONS UNDER
THIS SECTION CONSTITUTE ADSMART'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO
INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
8. LIABILITY. NEITHER PARTY WILL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL,
SPECIAL, EXEMPLARY OR OTHER INDIRECT DAMAGES, WHETHER BASED ON BREACH OF
CONTRACT, TORT, PRODUCT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN
WARNED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EITHER PARTY'S
LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT EXCEED $2.5 MILLION.
9. TERMINATION. Either party may terminate the Agreement if the other party
fails to perform any of its obligations in any material respect, and such
failure continues for a period of thirty (30) days after receipt by the
breaching party of written notice from the non-breaching party specifying
such default. Either party may also terminate this Agreement in its
discretion upon ninety (90) days prior written notice to the other.
Finally, either party may terminate this Agreement in the event that the
other party ceases to do business, undergoes a bankruptcy or insolvency
proceeding, or an assignment for the benefit of creditors. Upon the
expiration or termination of the Agreement for any reason, the parties will
return all confidential information of the other party in their possession.
All accrued payment obligations of Adsmart shall survive expiration or
termination of the Agreement, as shall the parties' rights and obligations
under Sections 4 through 9, Sections 11 through 13 and EXHIBIT C.
10. ASSIGNMENT. This Agreement is not assignable or transferable by either
party without the prior written consent of the other party, except that a
party may assign this Agreement to any entity: (a) controlling that party;
(b) controlled by, or under common control with, that party (provided such
assignee assumes the assignor's obligations under this Agreement and
provided further that assignor remains liable to the other party following
such assignment, or (c) acquiring
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TO THE OMITTED PORTIONS.
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substantially all of assignor's assets (provided such assignee assumes
assignor's obligations under this Agreement), or (d) by operation of
law. "Control" in the foregoing shall mean ownership of fifty percent
(50%) or more of the voting stock of the entity.
11. PAYMENT TERMS. Adsmart shall pay to AdForce the dollar amounts determined
from the pricing schedule set forth in EXHIBIT A within thirty (30) days
from the date of invoice. Adsmart shall pay AdForce for use of the AdForce
Service by Adsmart and its ad sales customers regardless of whether Adsmart
has been compensated by its customers for such services. All payments to
AdForce shall be remitted in U.S. Dollars. Fees for the AdForce Service are
subject to change upon any renewal of this Agreement.
12. TERM AND LEVEL OF SERVICE. The term shall commence on the Effective Date
indicated below and shall continue for three (3) years. This Agreement
shall automatically renew for additional one (1) year periods thereafter
unless, within thirty (30) days prior to the end of any term, either party
notifies the other of its decision to terminate this Agreement.
13. GENERAL. This Agreement is the complete and exclusive statement of the
mutual understanding of the parties and supersedes and cancels all previous
written and oral agreements and communications relating to the subject
matter of this Agreement, including, but not limited to, that certain
AdForce Services Agreement dated August 25, 1998 between AdForce and 2CAN
Media, Inc., as amended and subsequently assumed by Adsmart. No failure or
delay in exercising any right hereunder will operate as a waiver thereof,
nor will any partial exercise of any right or power hereunder preclude
further exercise. Any waivers or amendments shall be effective only if made
in writing. If any provision of this Agreement shall be adjudged by any
court of competent jurisdiction to be unenforceable or invalid, that
provision shall be limited or eliminated to the minimum extent necessary so
that this Agreement shall otherwise remain in full force and effect and
enforceable. This Agreement shall be governed by the law of the State of
California without regard to or application of choice of law rules or
principles. Any disputes under this Agreement initiated by Adsmart shall be
subject to the exclusive jurisdiction and venue of the California state
courts and the Federal courts located in Santa Clara County, California.
Any disputes under this Agreement initiated by AdForce shall be subject to
the exclusive jurisdiction and venue of the Massachusetts state courts and
the Federal courts located in Boston, Massachusetts. The prevailing party
in any action to enforce this Agreement will be entitled to recover its
attorneys' fees and costs in connection with such action. Each party agrees
to comply with all applicable laws, rules and regulations in connection
with its activities under this Agreement. Nothing contained herein shall be
construed as establishing a partnership, joint venture, employment or other
business relationship between the parties hereto other than that of
independent contractors. This Agreement may be executed in counterparts,
each of which shall be deemed an original and all of which together shall
constitute one instrument.
14. CERTAIN ADDITIONAL AGREEMENTS. Adsmart and AdForce wish to expand their
relationship beyond ad management and delivery, and thus agree to the
following additional provisions.
(a) MODIFICATIONS AND ENHANCEMENTS. Adsmart may request that AdForce make
modifications or enhancements to the Client or to the AdForce Service,
including custom reports. AdForce will consider such requests in good
faith, but will not be obligated to make any requested modification.
If AdForce agrees to make a requested modification, AdForce will
submit a quote for the cost to complete the modification to Adsmart on
a time and materials basis, with personnel costs charged at [*] per
hour, together with a time schedule and acceptance criteria, all
subject to Adsmart's review and approval. Unless agreed otherwise in
advance, any modifications made with Adsmart funds will be the sole
property of Adsmart, and thus may not be included by AdForce in the
AdForce Service provided to other AdForce customers. However, if
AdForce agrees to bear the cost of such modifications, these
modifications will be the sole property of AdForce and may be included
by AdForce in the AdForce Service provided to other AdForce customers.
(b) COOPERATIVE SALES AND MARKETING AGREEMENT. Adsmart and AdForce will
use their respective best efforts to execute a mutually acceptable
agreement within thirty (30) days from the Effective Date under which
they will (i) agree upon a rate card for ad management and delivery by
AdForce for parties other than Adsmart, (ii) coordinate their business
development efforts generally and through regular business development
and sales meetings so that
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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Adsmart and AdForce work closely together on market opportunities
that can benefit both companies, (iii) agree upon incentive
compensation programs for their respective employees to reward
mutually beneficial business development efforts, or for one
company to reward successful business development efforts of
employees of the other on its behalf, (iv) prepare a mutually
agreeable statement regarding the Adsmart/AdForce relationship for
use by each party in its promotional and other activities
(including a press release to be issued not later than five (5) day
following execution of this Agreement), which statement shall
designate Adsmart as a "preferred ad sales partner" for AdForce,
and shall designate AdForce as Adsmart's "preferred ad serving
partner," and (v) prepare a statement acceptable to Adsmart
regarding the Adsmart/Engage Technologies ("Engage") relationship
for use by AdForce in its promotional and other activities.
(c) ENGAGE TECHNOLOGIES. Subject to agreement on final terms with Engage
and to receiving necessary support from Engage, AdForce will use
commercially reasonable efforts to integrate Engage's Engage Knowledge
application software with the AdForce system (including in the Client,
AdForce's backend operations and reporting systems) on the timeline
and specification to be agreed upon between AdForce and Engage.
Adsmart acknowledges that with respect to targeted advertising
delivered by AdForce on Adsmart's behalf using Engage Knowledge
profiles, AdForce will be entitled to a minimum margin of [*] in
addition to fees payable by AdForce to Engage for such use and fees
payable by Adsmart to AdForce for ad management and delivery services
hereunder.
(d) I/PRO. AdForce will discuss in good faith with Engage moving all, or
substantially all, of AdForce's requirements for third party auditing
of AdForce Impressions to I/PRO, a division of Engage, subject to
meeting or beating the current pricing and service being provided to
AdForce by the Audit Bureau of Verification Services, Inc.
(e) NAVISITE. If AdForce determines that its customer and business
requirements in the future require outsourcing of image delivery to a
third party hosting service, AdForce will submit its requirements to
NaviSite prior to or at the same time it submits such requirements to
any other hosting service. AdForce further commits to use NaviSite for
such hosting services if NaviSite "meets or beats" the pricing and
performance of other third party hosting facilities available to
AdForce.
15. TECHNICAL AUDITS. In addition to the monthly Impression audits included in
the AdForce Service, Adsmart may request that AdForce obtain further
technical certification of the AdForce system's functionality, including
accuracy of impression counts, security and accuracy of data storage and
accuracy of reporting. Adsmart may request such a technical audit up to two
(2) times in any rolling twelve-month period, and shall bear all costs and
expenses, including any direct expenses incurred by AdForce, of such
audits. AdForce will be able to use freely any certifications so obtained
in its marketing materials or other public statements.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
Date written above.
Adsmart Network, Inc. AdForce, Inc.
Address: 100 Brickstone Square, 5th Floor Address: 10590 North Tantau Avenue
Andover, MA 01810 Cupertino, CA 95014
Telephone: 978.684.3780 or 888.559.8222 Telephone: 408.873.3680
Facsimile: 978.684.3618 Facsimile: 408.873.3695
By: By:
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Print Name: Rex S. Jackson
------------------------------------ Vice President and General Counsel
Title:
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TO THE OMITTED PORTIONS.
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EXHIBIT A
ADFORCE SERVICE
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ADFORCE SERVICE
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Campaign Management features Scheduling
Delivery
Reporting
Inventory Forecast
Targeting
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Auditing [*]
Campaign audits are [*] each.
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Customer Support 24 hour support by phone or
pager
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Same Day Change Orders [*] each
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Campaign Service Adsmart's traffic department
schedules campaigns
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RATES PER THOUSAND IMPRESSIONS
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IMPRESSIONS/MONTH CPM
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Up to [*] [*]
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Over [*] to [*] [*]
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Over [*] to [*] [*]
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Over [*] [*]
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- - [*]
- - House ads served to unsold inventory will be charged at full rate on any
day that total impressions are equal to or less than [*]. If total daily
impressions exceed [*], then house ads will be charged at [*]; provided,
however, that if such house ad exceed [*], the excess will be charged at
the full applicable daily rate.
- - On-site training is available on request for [*], per trainer, plus travel
expenses.
- - A surcharge of [*] per thousand Impressions will be applied for each
kilobyte, or fraction thereof, that the average size of advertisements over
a 30-day period exceeds [*].
- - In compliance with its notification requirements set forth in Section 3 of
the Agreement, AdForce is currently releasing to Adsmart Beta versions of
the AdForce 3.0 Client and AdForce's Actuate-based reporting system.
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EXHIBIT B
ADFORCE TARGETING: The AdForce Service include targeting on the following
parameters, when AdForce databases allow the parameter to be resolved:
- - BROWSER TYPE - Different campaigns can be delivered to visitors with
different browsers.
- - OPERATING SYSTEM - Different campaigns can be delivered to visitors with
different operating systems
- - DOMAIN TYPE - Different campaigns can be delivered to visitors from
different domains (i.e. .com or .edu)
- - SERVICE PROVIDER - Different campaigns can be delivered to visitors with
different Internet service providers.
- - TELEPHONE AREA CODE - Different campaigns can be delivered to visitors in
different area codes.
- - SIC CODE - Different campaigns can be delivered to visitors working for
companies with different SIC codes.
- - COUNTRY - Different campaigns can be delivered to visitors from different
countries.
- - FREQUENCY - An advertisement can be shown no more than a specified number
of times to each visitor.
- - SEQUENCE - A series of advertisements can be shown in sequence to a
visitor.
- - KEYWORDS - Advertisements can be targeted on the basis of a word or phrase
typed by a visitor.
- - SITE DATA - Ads can be targeted on the basis of data in a site's database
(i.e. with registered users)
- - DAY / DATE / TIME OF DAY - Ads can be scheduled to run during specific
times and on specific days.
- - CONTENT AREA - Ads can be targeted to a specific area of a site.
There may be additional charges for additional targeting parameters added in the
future, as well as for customization of the targeting algorithms for keywords
and site data.
ADFORCE REPORTING: The following reports are currently available in the AdForce
Service:
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NETWORK REPORTS WEBSITE REPORTS ADVERTISER REPORTS
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Daily Campaign Details Activity by Advertiser Campaign On-line Summary
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Daily Campaign Summary Activity by Area Code Summary by Area Code
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Monthly Billing Report Activity by Browser Summary by Banner
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Summary by Advertiser Activity by Content Unit Summary by Browser
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Summary by Area Code Activity by Country Summary by Category
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Summary by Browser Activity by Date Summary by Country
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Summary by Category Activity by Domain Summary by Date
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Summary by Country Activity by Keyword Summary by Domain
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Summary by Date Activity by Hour Summary by Hour
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Summary by Domain Activity by Operating System Summary by Operating System
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Summary by Hour Activity by Pay Type Summary by Service Provider
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Summary by Operating System Activity by Service Provider Summary by SIC Code
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Summary by Payment Type Activity by SIC Code Summary by Website
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Summary by Service Provider Website Revenue Campaign Summary
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Summary by SIC Code Monthly Billing Report
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Summary by Website
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Website Revenue
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AdForce is currently providing a custom "Network Unique IP" report. The
estimated time to initially set up this report is [*], and to prepare the report
monthly is [*]; AdForce's billing rate for these services is [*]. AdForce has
also agreed to review an Adsmart template for a "network by country by Website"
report and provide a quote for setting up and periodically providing this
report. There will be additional charges for reports customized or designed to
Adsmart's specifications. There may also be additional charges for reports added
in the future.
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TO THE OMITTED PORTIONS.
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EXHIBIT C
CONFIDENTIALITY ADDENDUM
This Confidentiality Addendum ("Addendum") is attached to that certain
Services Agreement between Adsmart Network, Inc. and AdForce, Inc. (the
"Services Agreement").
1. CONFIDENTIAL INFORMATION. For purposes herein, the party disclosing
Confidential Information (as defined below) in any given instance is referred to
as the "Disclosing Party," and the party receiving the information in such
instance is referred to as the "Recipient." "Confidential Information" includes
all information, data and know-how disclosed by Disclosing Party to Recipient
hereunder, whether in written form or embodied in tangible materials (including,
without limitation, software, hardware, drafts, drawings, graphs, charts,
spreadsheets, disks, tapes, prototypes, samples, letters, notes, memoranda or
presentations), which is clearly marked or labeled "CONFIDENTIAL" or with a
similar legend, or which if disclosed orally or not so marked, is of such a type
or nature that a reasonable person would conclude that such information is
confidential.
2. CONFIDENTIALITY OBLIGATIONS. Recipient agrees that it will preserve in
strict confidence and secure against accidental loss any Confidential
Information disclosed by Disclosing Party to Recipient, and will otherwise
comply with the terms of this Addendum, for a period of three (3) years from
disclosure of such Confidential Information by Disclosing Party. In preserving
Disclosing Party Confidential Information, Recipient will use the same standard
of care it would use to secure and safeguard its own confidential information of
similar importance, but in no event less than reasonable care. Any permitted
reproduction of Disclosing Party's Confidential Information shall contain all
confidential or proprietary legends that appear on the original. Recipient shall
immediately notify Disclosing Party in the event of any loss or unauthorized
disclosure of Confidential Information.
3. PERMITTED DISCLOSURES. Recipient shall permit access to Disclosing Party
Confidential Information solely to its employees who (i) have a need to know
such information and (ii) have signed confidentiality agreements containing
terms at least as restrictive as those contained herein. Recipient shall not
disclose Confidential Information to any affiliate, parent or subsidiary of
Recipient, or disclose or transfer any Confidential Information to third
parties, without the specific prior written approval of Disclosing Party.
Recipient shall use Disclosing Party Confidential Information disclosed
hereunder solely for the purposes set forth in the Services Agreement and for
such other purposes as Disclosing Party shall specifically approve in writing.
4. OBLIGATION TO RETURN CONFIDENTIAL INFORMATION. Recipient acknowledges
that Disclosing Party retains ownership of all Confidential Information
disclosed or made available to Recipient. Accordingly, upon any termination,
cancellation or expiration of the Services Agreement, or upon Disclosing Party's
request for any reason, Recipient shall return promptly to Disclosing Party the
originals and all copies (without retention of any copy) of any written
documents, tools, materials or other tangible items containing or embodying
Confidential Information.
5. NO REPRESENTATIONS OR WARRANTIES. Disclosing Party makes no warranties,
whether express, statutory or implied, relating to the sufficiency or accuracy
of the Confidential Information disclosed for any purpose, nor regarding
infringement of others' intellectual property rights which may arise from the
use of such Confidential Information.
6. EXCLUSIONS. This Addendum shall not apply to information with respect to
which Recipient can affirmatively establish that (a) Recipient rightfully
possessed such information prior to its first receipt thereof from Disclosing
Party, as shown by files of Recipient in existence at the time of the
disclosure; (b) such information is publicly known or, through no wrongful act
or failure to act by Recipient, becomes publicly known; (c) the information is
hereafter furnished to Recipient by a third party who is not in breach of an
obligation of confidentiality; (d) employees or other agents of Recipient who
have not been exposed to the Confidential Information independently developed
such information without reference to or reliance upon Disclosing Party's
confidential information; or (e) Recipient is required by governmental or court
order to disclose such information, provided that Recipient shall provide
Disclosing Party advance notice thereof to enable Disclosing Party the
opportunity to prevent or control such disclosure.
7. NO GRANT OF PROPERTY RIGHTS. Recipient recognizes and agrees that
nothing contained in this Addendum shall be construed as granting any property
rights, by license or otherwise, to any Disclosing Party Confidential
Information disclosed pursuant to the Services Agreement or this Addendum, or to
any invention or any patent right that
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[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
ADFORCE-TM- SERVICES AGREEMENT ADSMART NETWORK
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has issued or that may issue based on such Confidential Information.
8. REMEDIES; SURVIVAL. Recipient acknowledges that improper disclosure, or
threatened disclosure, of Disclosing Party Confidential Information will cause
irreparable harm to Disclosing Party, and thus that Disclosing Party shall be
entitled to, among other forms of relief, injunctive relief to prevent any such
unauthorized disclosure. Recipient's obligations under this Agreement shall
survive termination of its association with Disclosing Party regardless of the
manner of such termination and shall be binding upon Recipient's heirs,
successors and assigns.
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[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
ADFORCE-TM- SERVICES AGREEMENT ADSMART NETWORK
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EXHIBIT D
PERFORMANCE REQUIREMENTS
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.