WHEREAS, American Cities Studios, Inc. and Cybernet International
Corporation (collectively, "Cybernet"), among other things, provide Web site
design, hosting, maintenance and marketing services to a collection of Web sites
and continuously recruit additional Web sites for such services;
WHEREAS, 24/7 Media, Inc. ("24/7"), a Delaware corporation with an address
at 1250 Broadway, 27th floor, New York, NY 10001, operates networks of internet
web sites for which it solicits advertisers, advertising agencies, buying
services or others regarding the placement of advertising banners and similar
devices and sponsorships for display on Web sites;
WHEREAS, 24/7 and Cybernet wish to enter into this Agreement and the
Affiliation Agreement (as defined below) to provide a framework for their joint
marketing of their respective services to Web sites in the Category (as defined
below) and otherwise;
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and agreements contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, it is agreed as
1. Agreement to Jointly Market.
A. 24/7 and Cybernet hereby agree to jointly market their respective
services to Web sites owned by major league sports franchises, major league
organizations, and athletic departments of colleges and universities (the
"Category") as well as to other Web sites. Each Web site to be covered by this
Agreement shall, with the written consent of each of 24/7 and Cybernet, become a
party to the 24/7 Media / Cybernet Network Affiliation Agreement (the
"Affiliation Agreement") attached hereto.
B. Cybernet hereby agrees to use its best efforts to cause Web sites in
the Category and outside the Category to become a party to the Affiliation
C. Subject to the following clause, 24/7 agrees to enter into the
Affiliation Agreement with each Web site in the Category that Cybernet
recommends be made a party, provided, however, that 24/7 retains the right in
its sole discretion to refuse to enter into the Affiliation Agreement with any
Web site whose content, in the sole judgment of 24/7, is not in accordance with
24/7's content standards.
A. 24/7 hereby agrees not to sell internet advertising for Web sites
included in the Category other than pursuant to the Affiliation Agreement;
provided, however, that 24/7 may continue its existing, active relationship with
all Web sites in the Category or otherwise currently affiliated with 24/7 or
with companies that are acquired by 24/7 subsequent to the execution of this
Agreement, so long as not more than 50% of such acquired companies' revenues are
derived from Web sites in the Category.
B. Cybernet agrees not to jointly market its services with any other
internet advertising sales firm to Web sites included in the Category.
3. Principal Contact
24/7 acknowledges and agrees that persons associated with Cybernet shall
be the principal contact for communications between 24/7 and each Web site
introduced by Cybernet to 24/7 for inclusion in the Affiliation Agreement, and
that 24/7 shall not regularly communicate directly with representatives of such
Web sites without the consent of Cybernet.
4. Term. The term of this Agreement (the "Term") shall commence on the
Effective Date (as defined below) and terminate on December 31, 2001; provided,
however, that Cybernet shall have the option to terminate the Agreement at any
time after February 28, 2000 if 24/7 shall fail to achieve in the 12 months then
ended a gross cost per thousand impressions ("CPM") across all internet
advertising inventory covered by this Agreement of $5.00; it being agreed that
advertising inventory in respect of a new Web site added to this Agreement shall
not be deemed to be covered by this Agreement for purposes of calculating the
gross CPM until the first day of the third full month following the initial
inclusion of such Web site; and provided, further, that 24/7 shall have the
option to terminate the Agreement at any time after February 28, 2000 if the
number of advertising impressions covered by this Agreement shall average fewer
than 50,000,000 advertising impressions per month in the 12 months then ended.
Termination will be effective thirty days after the date on which written notice
is given, as determined under the provisions of Section 9 below, to the other
5. Confidentiality. 24/7 and Cybernet covenant to each other that neither
party shall disclose to any third party (other than its employees and directors,
in their capacity as such, and the employees and directors of any affiliate on a
need to know basis so long as they are bound by the terms of this Agreement) any
information regarding the terms and provisions of this Agreement or any
non-public confidential information which has been identified as such by the
other Party hereto except (i) to the extent necessary to comply with any law or
valid order of a court of competent jurisdiction (or any regulatory or
administrative tribunal), in which event the party so complying shall so notify
the others as promptly as practicable (and, if possible, prior to making any
disclosure) and shall seek confidential treatment of such information, if
available; (ii) as part of its normal reporting or review procedure to its
auditors or its attorneys, as the case may be, so long as they are notified of
the provisions of this Agreement; (iii) in order to enforce its rights pursuant
to this Agreement; (iv) in connection with any filing with any governmental body
or as otherwise required by law, including the federal securities laws and any
applicable rules and regulations of any stock
exchange or quotation system; and (v) in a confidential disclosure made in
connection with a contemplated financing, merger, consolidation or sale of
capital stock of 24/7 or Cybernet. Information which is or should be reasonably
understood to be confidential or proprietary includes, but is not limited to,
information about the 24/7 Network, sales, cost and other unpublished financial
information, product and business plans, projections, marketing data, and
sponsors but shall not include information (a) already lawfully known to or
independently developed by a party, (b) disclosed in published materials, (c)
generally known to the public, (d) lawfully obtained from any third party or (e)
required to be disclosed by law.
6. No Poaching. Cybernet agrees that, for a period of one year from the end
of the Term, neither it nor its affiliates will solicit or recruit the services
of any 24/7 employees, or hire any such employees.
7. No Waiver. This Agreement shall not be waived, modified, assigned or
transferred except by a written consent to that effect signed by Cybernet and
24/7. 24/7 hereby acknowledges that Cybernet is expected to be acquired by Mpact
Immedia and consents to such acquisition and agrees to consent to the assignment
of this Agreement to an affiliate of Mpact Immedia if so requested. Each of
Cybernet and 24/7 agrees that if it assigns or transfers this Agreement, it
shall cause such successor, assignee, or transferee to assume all of Cybernet's
obligations hereunder. Any assignment, transfer, or assumption shall not relieve
Cybernet of liability hereunder.
8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and performed therein, without regard to principles of conflicts of laws.
9. Notices. All notices required or permitted to be given hereunder shall be
in writing and either hand-delivered, telecopied, mailed by certified first
class mail, postage prepaid, or sent via electronic mail to the other party or
parties hereto at the address(es) set forth below. A notice shall be deemed
given when delivered personally, when the telecopied notice is transmitted by
the sender, three business days after mailing by certified first class mail, or
on the delivery date if delivered by electronic mail.
10. Entire Agreement. This Agreement constitutes the entire agreement and
supersedes all prior agreements of the Parties with respect to the transactions
set forth herein and, except as otherwise expressly provided herein, is not
intended to confer upon any other person any rights or remedies hereunder.
11. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which together shall constitute one
and the same document.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement this
30th day of September, 1998 (the "Effective Date").
24/7 MEDIA, INC.
By: /s/ David J. Moore
Name: David J. Moore
Title: Chief Executive Officer
E-mail address: firstname.lastname@example.org
AMERICAN CITIES STUDIOS, INC.
By: /s/ Ted Silverman
Name: Ted Silverman
Title: Chief Executive Officer
E-mail address: Ted@amcities.com
CYBERNET INTERNATIONAL CORPORATION
By: /s/ Ted Silverman
Name: Ted Silverman
E-mail address: Ted@cyb.net