24/7 MEDIA INC.
Master Affiliation Agreement, dated November 9, 1999 (the 'Agreement')
between Webhelp.com Inc. (the 'Affiliate'), with an address set forth on the
signature page hereto, and 24/7 Media, Inc., a Delaware corporation with an
address at 1250 Broadway, 28th floor, New York, NY 10001, that operates the 24/7
Network for which it solicits Advertisers regarding the placement of Advertising
for display on Pages and to which the Tags can be affixed as provided herein.
The Affiliate and 24/7 wish to enter into the relationship as set out in
this Agreement. All capitalized terms used in the Agreement and any exhibit
attached to the Agreement have the meanings set forth in Section A below.
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 follows:
1. 'Advertisers' means advertisers, advertising agencies, sponsors,
promotional partners, media buying services or other similar entities
that, whether directly or through its advertising agency, promote itself,
its brands or its products or services.
2. 'Advertising' or 'Advertisements' means the material that promotes a brand
or a product or a service through advertising banners, text links,
buttons, jump pages and similar promotional devices as well as all
elements of a sponsorship or promotion.
3. 'Advertising Sales Revenue' means the revenue generated by 24/7 from the
sale of Advertising on the Web Site(s).
4. 'Affiliate' means the party listed on the signature page hereto that is
the operator and owner of the Web Site(s) specified on the signature page
5. 'Affiliate Technology' means all hardware, software, programs, codes,
trade names, technology, intellectual property, licenses, patents,
trademarks, copyrights, trade secrets, know-how, and processes used by
Affiliate under this Agreement.
6. 'Agreement' means this Agreement and any exhibits attached hereto, as the
same may be amended, supplemented or modified in accordance with the terms
7. 'Appended Data' means the demographic or other information owned by 24/7
that is attached or appended to the Registration Data for use in the
8. 'Bad Debt' means receivables for billed Net Advertising Sales Revenue in
which collection has not been made and, in accordance with the criteria
set by 24/7, is deemed uncollectible.
9. 'CPM' means the dollar cost per thousand Advertisements or impressions
with respect to Advertising sold by 24/7 to an Advertiser.
10. 'Database' means 24/7's Profilz(TM) co-operative database of Internet
users that compiles demographic and other information of Internet users
for the purposes of delivering profile-targeted Advertising to Internet
11. 'DMA' means the Direct Marketing Association.
12. 'E-Commerce Service' means the 'click2buy.com' e-commerce service and/or
other e-commerce services owned by 24/7.
13. 'Effective Date' means the date first written above.
14. 'Net Advertising Sales Revenue' means the Advertising Sales Revenue, less
any advertising agency commissions retained by the advertising agency or
paid by 24/7 to the advertising agency.
15. 'Pages' means the pages, screens, and other segments or spaces on the Web
16. 'Registration Data' means the information and data gathered by Affiliate
pertaining to its Internet users of its web site for use in the Database.
17. 'Royalty' means the payment by 24/7 to Affiliate comprised of the
Affiliate's portion of Net Advertising Revenue as set forth in Section
C.3. of this Agreement.
18. 'Tag(s)' means a unique tag, or graphical element in a fixed location on a
Page designed for the delivery of Advertising, in HTML/Java or other
appropriate languages that are affixed appropriately by Affiliate to the
Web Site's Pages to enable 24/7 to serve Advertising to those Pages.
19. 'Term' means the term of this Agreement, as determined pursuant to Section
C.4. of this Agreement.
20. '24/7' means 24/7 Media, Inc., a Delaware corporation, and its
21. '24/7 Data' means the data, names, phone numbers, addresses and other
information collected by 24/7 from the registration of users on the 24/7
Network, the 24/7 Mail Network or the Database or other sources.
22. '24/7 Mail Network' means the network of email lists for which 24/7
solicits Advertisers regarding the placement of Advertising for display in
messages distributed to email lists;
23. '24/7 Network' means the network of Internet Web sites for which 24/7
solicits Advertisers regarding the placement of Advertising for display on
24. '24/7 Technology' means all hardware, software, programs, codes, trade
names, technology, intellectual property, licenses, patents, trademarks,
copyrights, trade secrets, know-how, and processes used by 24/7 under this
25. 'Web Site(s)' means Internet Web site(s) owned by Affiliate specified on
the signature page hereto.
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SCOPE OF AGREEMENT
The Affiliate hereby grants to 24/7 the worldwide exclusive right to sell
all Advertising on the Web Site(s).
1. Obligations of Affiliate, The Affiliate represents, warrants, covenants
A. to use its best efforts to maintain the Web Site and the Web Site's
Pages in a manner consistent with the intent and purpose of the Web
Site as at the date first written above;
B. to insert the Tags on each of the Web Site's Pages in such a manner
as to assure that the Advertising to be affixed to said Tag is fully
and clearly visible on the first Web Site Page viewed when that Page
is viewed at a 640 x 480 pixel resolution;
C. to insert a button with the 24/7 logo on the Web Site's home page
directing potential advertisers to the 24/7 web site.
D. to notify 24/7 within one business day from the time of notice when
any new Advertising is given of the Affiliate's rejection of any new
Advertising. Failure to provide timely notice of rejection of the
new Advertising shall be deemed acceptance thereof, until such time
as Affiliate notifies 24/7 of Affiliate's rejection thereof, at
which time 24/7 will use its best efforts to remove the Advertising;
E. to furnish 24/7 with all subscribership, viewership, inventory, and
usage reports, reviews and audience studies, deliveries, census
requirements, and any other information regarding the Web Site and
the Web Site's Pages as is reasonably available to the Affiliate and
appropriate for use by 24/7 for the sale of Advertising, provided,
that such reports are subject to the confidentiality obligations of
the parties set forth in this Agreement;
F. not to engage, contract with, license or permit any person, firm or
entity (including the Affiliate and its employees) other than 24/7
and its employees to sell, or represent the Affiliate for the sale
of, Advertising on the Web Site and to refer all advertising
inquiries to 24/7.
2. Obligations of 24/7 Media, Inc. 24/7 represents, warrants, covenants and
A. to provide the Affiliate, during the Term and only for use in the
performance of this Agreement, with unique Tags;
B. to utilize its best efforts to solicit and sell to Advertisers'
Advertising on the Web Site's Pages, (including sales of the Web
Site as a single site, through multi-site packages and through the
24/7 Network package) at such prices as 24/7 shall deem appropriate;
C. to deliver and serve Advertising to the Web Site's Pages;
D. to provide the Affiliate with notice, via on-line posting or email,
of new Advertising that has been solicited by 24/7 to be displayed
on the Web Site's Pages, and to honor any decision by Affiliate to
decline any Advertising, in accordance with the provisions in
Section C.1.D of this Agreement;
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E. to provide the Affiliate with real-time access to records that will
allow it to monitor the volume of paid Advertising delivered to the
Web Site's Pages and the revenue earned (subject to billing
corrections and accounting adjustments) thereby, provided, that such
records are subject to the confidentiality obligations of the
parties set forth in this Agreement; all such records, including
data, statistical information or other traffic analysis, produced or
provided by 24/7 shall be the joint property of 24/7 and Affiliate;
F. to deliver to the Affiliate a monthly statement ('Statement')
showing the Royalty earned by Affiliate during the calendar month
and any sum(s) due the Affiliate on account thereof pursuant to
Section C.3. of this Agreement; each Statement shall be final and
binding on the Affiliate, unless the Affiliate objects in writing
thereto within 60 days of receipt of the relevant Statement;
notwithstanding the foregoing, 24/7 shall not be responsible for
uncollectible or Bad Debts of Advertisers nor any default on the
part of Advertisers; and
G. to maintain suitable and qualified personnel in administrative,
sales and technical positions necessary for 24/7 to perform
effectively the terms of this Agreement.
A. Advertisers shall be directed to pay to 24/7 all cash and other
consideration generated from the sale of Advertising by 24/7 during
the term of this Agreement and for a period of six months following
the termination of this Agreement (except for sponsorships, with
respect to which payments shall be made to 24/7 and a percentage
shall be retained by 24/7 for the duration of the sponsorship
regardless of the date of termination of this Agreement).
B. 24/7 shall deliver to Affiliate the Royalty on the terms and
conditions set forth in Section C.3.C. of this Agreement, provided
that 24/7 may retain the amount due to Affiliate until the Royalty
due Affiliate exceeds $50 in the aggregate.
C. 24/7 shall pay to the Affiliate the Royalty equal to the Affiliate's
entire share of the Net Advertising Sales Revenue earned during that
month (after accounting adjustments) and collected by 24/7 pursuant
to the related invoicing, and 24/7 shall retain 30%
D. The Affiliate may elect to have 24/7 serve promotional or barter
advertisements not sold by 24/7, for which Affiliate will pay 24/7 a
serving fee of $2.50 CPM; such advertisements shall not exceed
thirty percent (30%) of the Pages.
F. In the event any Advertiser remits any payment for Advertising
directly to the Affiliate rather than to 24/7, the Affiliate agrees
to make prompt payment to 24/7 of any and all such payments.
F. Affiliate agrees that it is obligated to compensate 24/7 on any
business contracted with 24/7 Media prior to termination date.
A. The Term of this Agreement will commence on the Effective Date, will
continue for one year from the Effective Date, and will renew
automatically for additional periods of one year, unless otherwise
terminated pursuant to the terms of this Agreement. Either party may
terminate the Agreement by giving written notice to the other party
no earlier than eight months after the Effective Date. Termination
will be effective four (4) months after the date on which written
notice is given, provided that notice is given pursuant to the terms
of Section C.13. of this Agreement, to the other party.
B. Notwithstanding Section C.4.A. of this Agreement, this Agreement may
be terminated by either party on 60 days' prior written notice to
the other party upon the occurrence of a material breach by the
other party of any covenant, duty or undertaking herein, which
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breach continues without cure for a period of 30 days after written
notice of such breach is received by the breaching party from the
C. Notwithstanding Section C.4.A. or C.4.B. of this Agreement, this
Agreement may be terminated by 24/7 on written notice to the
Affiliate upon the occurrence of a breach by Affiliate of its
covenants under Section C.7. of this Agreement, which breach
continues without cure for a period of more than 48 hours after
written notice of such breach is received by Affiliate from 24/7, or
which breach occurs on more than two occasions; and 24/7 shall have
the right and option to de-activate the Tags on the Pages or to
adjust the royalty due to Affiliate set forth in Section C.3. of
this Agreement upon the occurrence of a breach of Section C.7.C. of
this Agreement, which breach continues without cure for a period of
more than 48 hours after which written notice of such breach is
received by Affiliate from 24/7.
D. Notwithstanding Section C.4.A. or C.4.B. of the Agreement, the
Agreement may be terminated by 24/7 on 30 days' prior written notice
to the Affiliate if the number of available Pages in any two
consecutive months is less than one million average per month or if
the average click-through rate for the Advertisements served on the
Web Site(s) for any three-month period is less than 0.25%.
E. Affiliate further covenants and agrees that the maximum rotation
rate of advertising displayed on the Web Site will not exceed one
banner every sixty seconds; and if such rate is exceeded, then 24/7
shall have the right and option to terminate the Agreement if such
breach continues without cure for a period of more than 48 hours
after written notice of such breach is received by Affiliate from
24/7 of such breach, or which breach occurs on more than two
5. Intellectual Property.
A. The 24/7 Technology will remain the sole property of 24/7 and
Affiliate will have no rights, title or interest in the 24/7
Technology. The Affiliate Technology will remain the sole property
of Affiliate and 24/7 will have no rights, title or interest in the
Affiliate Technology. Upon the expiration or termination of this
Agreement, each party agrees that it will promptly return all
information, documents, manuals and other materials belonging to the
other party except as otherwise provided in this Agreement or any
B. Upon termination or expiration of this Agreement. 24/7 will retain
ownership of and all rights, title and interest in the 24/7 Data,
with the exception of the rights granted Affiliate pursuant to 2E
6. Confidentiality, 24/7 and Affiliate covenant to each other that neither
party will 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 nonpublic confidential information,
which information a reasonable person would consider confidential or which
is marked as 'confidential' or 'proprietary', 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 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 (iv) in a confidential disclosure made
in connection with a contemplated financing, merger, consolidation or sale
of capital stock of 24/7 or the Affiliate. 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, the 24/7 Mail
Network, the Database, the E-Commerce Service, 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
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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.
7. Content of Web Site.
A. Affiliate covenants and agrees not to knowingly include or provide
via the Web Site, and agrees to remove from the Web site any
material that is : (i) libelous, pornographic, obscene, or
defamatory under any federal or state law; (ii) an infringement of
any third party's intellectual property rights (including copyright,
patent, trademark, trade secret or other proprietary rights); or
(iii) an infringement on any third party's rights of publicity or
privacy. Affiliate further covenants and agrees, with respect to the
operation of its Web Site and its Pages, to comply with all laws,
statutes, ordinances, and regulations.
B. Affiliate agrees to place prominently on its Web Site(s) and to
operate in accordance with and to comply with a privacy statement or
policy that adheres to or exceeds widely-accepted industry
guidelines, such as the TRUSTe Privacy Program, the Better Business
Bureau Privacy Practices or the DMA-accepted privacy statements.
Affiliate agrees to provide a text-link or hyper-link on its Web
www.247media.com. Affiliate agrees to continuously monitor and
collected from Internet users to conform to industry standards for
C. Affiliate agrees not to include or provide via the Web Site or the
Pages (or in any chat room directly or indirectly connected
therewith) any language, content or material that is or may
reasonably be considered to be a direct or indirect incentive aimed
at a user to repetitively click on Advertising that is displayed on
the Web Site and receive, as consideration for such clicks, cash,
cash equivalents or other tangible benefit; and Affiliate agrees not
to take any action or encourage any conduct in relation to its Web
Site or Pages that is or may reasonably be considered adverse to the
interests of Advertisers that advertise on the Web Site.
A. Affiliate shall indemnify and hold harmless 24/7, its advertisers
and other suppliers and any related third parties, against and in
respect of any and all third party claims, suits, actions,
proceedings (formal and informal), investigations, judgments,
deficiencies, damages, settlements, liabilities, and legal and other
expenses (including reasonable legal fees and expenses of attorneys
chosen by 24/7) as and when incurred, arising out of or based upon
any act or omission or alleged act or alleged omission by Affiliate
in connection with the acceptance of, or the performance or
non-performance by Affiliate of, any of its duties under this
Agreement or arising from the breach by Affiliate of its warranties,
representations or covenants contained in this Agreement. Affiliate
shall promptly notify 24/7 of all claims and proceedings related
thereto of which Affiliate becomes aware.
B. 24/7 shall indemnify and hold harmless the Affiliate, against and in
respect of any and all third party claims, suits, actions,
proceedings (formal and informal), investigations, judgments,
deficiencies, damages, settlements, liabilities, and legal and other
expenses (including reasonable legal fees and expenses of attorneys
chosen by Affiliate) as and when incurred, arising out of or based
upon any act or omission or alleged act or alleged omission by 24/7
in connection with the acceptance of, or the performance or
non-performance by 24/7 of, any of its duties under this Agreement
or arising from the breach by 24/7 of its warranties,
representations or covenants contained in this Agreement. 24/7 shall
promptly notify Affiliate of all claims and proceedings related
thereto of which 24/7 becomes aware.
9. Affiliate Representations and Acknowledgements. Affiliate represents,
warrants and acknowledges the following:
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A. that Affiliate has the authority to enter into this Agreement and to
perform its obligations hereunder, that it has the right to grant
the rights granted to 24/7 hereunder, and that it has the authority
to make the Web Site and the Pages available for Advertising.
B. that 24/7 has an ownership interest in the E-Commerce Service and
that the E-Commerce Service includes the placement of Advertising
and promotional banners on the 24/7 Network, generally on a basis
and on terms no more favorable to click2buy.com than would be made
available to a party not affiliated with 24/7. Affiliate has the
option to reject Advertising that employs the E-Commerce Service.
C. that 24/7 owns and operates the Database and that the Affiliate
understands and agrees that the payment in respect of Advertising
sold that employs the Database shall be calculated by subtracting
from the gross revenue generated from the delivery of Advertising an
advertisers' fee for the use of the Database, which advertisers' fee
shall be disclosed to the Affiliate prior to the commencement of
this Agreement, shall reasonably reflect 24/7's cost of developing
and operating the Database and may change from time to time.
Affiliate has the option to reject Advertising that employs the
D. that 24/7 is acting solely as a conduit distributor and marketer of
the Advertising and that it has no responsibility for the content of
the Advertising and/or the Web Site(s)
10. No Poaching. Affiliate agrees that, during the Term and 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
11. Amendment and Waiver; Successors and Assigns. 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
future exercise thereof or the exercise of any other right, power or
remedy. The remedies provided for herein are cumulative and are not
exclusive of any remedy that may be available to the parties at law, in
equity or otherwise. This Agreement shall not be amended, waived,
modified, assigned or transferred except by a written consent to that
effect signed by Affiliate and 24/7, provided, that 24/7 may transfer or
assign this Agreement without the consent of Affiliate in the event of a
merger of 24/7 with, or a sale or all or substantially all of its assets
to, a third party. This Agreement shall inure to the benefit of and be
binding on the successors and permitted assigns of the parties hereto.
Affiliate agrees that if it assigns or transfers this Agreement, it shall
cause such successor, assignee, or transferee to assume all of the
Affiliate's obligations hereunder. Any assignment, transfer, or assumption
shall not relieve the Affiliate of liability hereunder.
12. 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
13. Notices All notices required or permitted to be given under this Agreement
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 on the
signature page to this Agreement. 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.
14. 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
15. 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.
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16. Force Majeure. Neither party shall be held liable or responsible to the
other party nor be deemed to have defaulted under or breached this
Agreement for failure or delay in fulfilling or performing any term of
this Agreement when such failure or delay is caused by or results from
causes beyond the reasonable control of the affected party, including but
not limited to fire, floods, failure of communications systems or
networks, embargoes, war, acts of war (whether war is declared or not),
insurrections, riots, civil commotion, strikes, lockouts or other labor
disturbances, acts of God or acts, omissions or delays in acting by any
governmental authority or the other party; provided, however, that the
party so affected shall use reasonable commercial efforts to avoid or
remove such causes of nonperformance, and shall continue performance
hereunder with reasonable dispatch whenever such causes are removed.
Either party shall provide the other party with prompt written notice of
any delay or failure to perform that occurs by reason of force majeure.
The parties shall mutually seek a resolution of the delay or the failure
to perform as noted above.
17. Severability. Should one or more provisions of this Agreement be or become
invalid, the parties hereto shall substitute, by mutual consent, valid
provisions for such invalid provisions which valid provisions in their
economic effect are sufficiently similar to the invalid provisions that it
can be reasonably assumed that the parties would have entered into this
Agreement with such valid provisions. In case such valid provisions cannot
be agreed upon, the invalidity of one or several provisions of this
Agreement shall not affect the validity of this Agreement as a whole,
unless the invalid provisions are of such essential importance to this
Agreement that it is to be reasonably assumed that the parties would not
have entered into this Agreement without the invalid provisions.
18. Dispute Resolution. Any controversy or claim arising out of or relating to
the Agreement, or the breach thereof, shall be settled exclusively by
arbitration. Such arbitration shall be conducted before a single
arbitrator in accordance with the Commercial Arbitration Rules of the
American Arbitration Association then in effect. If arbitration is
commenced by 24/7, it shall take place in the city in the continental
United States in which the principal U.S.A. corporate offices of Affiliate
are located. If Affiliate has no corporate offices in the U.S.A. or if
arbitration is commenced by Affiliate, then arbitration shall take place
in New York, New York. Judgment may be entered on the arbitrator's award
in any court having jurisdiction, and the parties irrevocably consent to
the jurisdiction of such courts for that purpose. The parties waive
personal service in connection with any such arbitration; any process or
other papers under this provision may be served outside the home state of
Affiliate or New York by registered mail, return receipt requested, or by
personal service, provided a reasonable time for appearance or response is
allowed. All decisions of the arbitrator shall be final and binding on the
parties. The parties shall equally divide all costs of the American
Arbitration Association and the arbitrator. Each party shall bear its own
legal fees in any dispute. The arbitrator may grant injunctive or other
19. LIMITATION OF LIABILITY; DISCLAIMER. IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR ANY DIRECT OR INDIRECT, SPECIAL, INCIDENTAL,
PUNITIVE, CONSEQUENTIAL OR LOST PROFIT DAMAGES, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. 24/7 MAKES NO WARRANTIES OF ANY KIND TO ANY
PERSON WITH RESPECT TO THE AD SERVING SYSTEM USED TO DELIVER ADVERTISING
OR ANY ADVERTISING OR DATA SUPPLIED HEREBY, INCLUDING ANY IMPLIED WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
20. Independent Contractors. 24/7 and Affiliate shall each act as independent
contractors. Neither party shall exercise control over the activities and
operations of the other party. 24/7 and Affiliate shall each conduct all
of its business in its own name and as it deems fit, provided it is not in
derogation of the other's interests. Neither party shall engage in any
conduct inconsistent with its status as an independent contractor, have
authority to bind the other with respect to any agreement or other
commitment with any third party, nor enter into any commitment on behalf
of the other, except as expressly provided for by this Agreement.
21. Publicity. None of the parties hereto shall issue a public announcement or
press release concerning this Agreement or the terms hereof without the
prior written approval by the other party hereto
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(which approval shall not be unreasonably withheld or delayed); provided,
however, that nothing in this Agreement shall restrict any party from
disclosing information that is already publicly available, except as a
result of a breach of the confidentiality obligations of this Agreement.
[END OF TEXT]
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[SIGNATURE PAGE TO MASTER AFFILIATION AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement this
9 day of November, l999.
24/7 MEDIA, INC.
1250 Broadway, 28th floor
New York, New York 10001
By: /s/ Thomas [ILLEGIBLE]
Name: Thomas [ILLEGIBLE]
Title: V.P. [ILLEGIBLE]
E-mail address: TEATON@247MEDIA.COM
Name of Web Site: Webhelp.com
URL of Web Site: www.webhelp.com
Corporate Name of
Web Site owner: Webhelp.com Inc.
Address: 1 Dundas Street West
Toronto, Ontario, Canada
Fax No.: 416-260-4710
By: /s/ Kerry E. Adler
Name: Kerry E. Adler
Title: President & CEO
E-mail address: Kerry.Adler@[ILLEGIBLE].com
10 Page 10
INSERTION ORDER - TERMS AND CONDITIONS
Section 1. Obligations, Representations and Warranties of Parties;
A. Advertiser acknowledges chat the sole obligation of 24/7 Media, Inc.
('24/7 MedIa') is to display an advertising banner, text link or advertisement
or other creative (the 'Creative') delivered by Advertiser to 24/7, which
advertising Creative conforms to the specifications set forth herein and
elsewhere in the insertion order (the insertion order and these Terms and
Conditions are referred to collectively herein as the 'Agreement'). Advertiser
is solely responsible for any and all liability, loss, cost, claim or expense
arising out of or relating to the Creative and/or the Advertiser Web Content
(defined below). In this regard, Advertiser warrants and represents that (i)
Advertiser owns and/or has the right and authority to permit the use,
reproduction, distribution and transmission of the Creative by 24/7 Media; (ii)
the Creative and any content and/or services linked to the Creative ('Advertiser
Web Content') are factually accurate and do not contain any fraudulent or
deceptive materials, or material which misrepresents, ridicules or attacks an
individual or group on the basis of age, color, national origin, race, religion,
sex, sexual orientation or handicap; (iii) the Creative does not promote or make
claims that are not easily provable, nor does it falsify the product or message
being communicated; and (iv) the use, reproduction, distribution, or
transmission of the Creative will not, and the Advertising Web Content does not,
violate any foreign or domestic, federal, state or local law or regulation, or
any rights of any third party, including, but not limited to, any copyright,
patent, trademark, trade secret, music, image, or other proprietary or property
right, or constitute false advertising, unfair competition, defamation, invasion
of privacy or rights to celebrity, or any other right of any person or entity.
B. Advertiser agrees to indemnify 24/7 Media and its affiliates and to
hold 24/7 Media and its affiliates harmless from and against any and all
liability, loss, damage, claim and, expense, including reasonable legal fees and
expenses that may be incurred by 24/7 Media and its affiliates, arising out of
or related to Advertisers breach of, or the untruth of. any of the foregoing
representations and warranties or any obligation hereunder or Advertisers part
to be performed.
Section 2. Payment; Measurement.
A. Payment terms are Net 30 days from the date of invoice for advertisers
extended credit, otherwise full payment is due upon acceptance of this order.
Advertisers will be invoiced at least monthly during the term of the agreement.
B. Performance tracking and measurement of all Creative will be measured
by 24/7 Media (or its third-party affiliate). In the event of a discrepancy
between 24/7 Media and Advertiser, all performance tracking data of 24/7 Media
will control and govern the terms of this Agreement.
Section 3. Limitation of Liability.
UNDER NO CIRCUMSTANCES SHALL 24/7 MEDIA BE LIABLE FOR INDIRECT, INCIDENTAL,
CONSEQUENTIAL SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE
FORESEEABLE, AND WHETHER OR NOT 24/7 MEDIA HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES) ARISING FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP
PROVIDED FOR HEREIN. 24/7 MEDIA SHALL IN NO EVENT BE LIABLE FOR MORE THAN THE
TOTAL AMOUNT PAID TO 24/7 MEDIA BY ADVERTISER UNDER THIS AGREEMENT. 24/7 MEDIA
MAKES NO REPRESENTATION, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS
OR IMPLIED, REGARDING 24/7 MEDIA'S SERVICES OR ANY PORTION THEREOF, INCLUDING
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND
IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, 24/7 MEDIA SPECIFICALLY
DISCLAIMS ANY WARRANTY REGARDING (I) THE NUMBER OF PERSONS WHO WILL ACCESS THE
CREATIVE AND (II) ANY BENEFIT ADVERTISER MIGHT OBTAIN FROM INCLUDING THE
CREATIVE ON THE 24/7 MEDIA NETWORK.
Section 4. Rejection of Creative; Cancellation.
A. 24/7 Media reserves the right to reject any advertising which is not,
in its sole discretion, consistent with 24/7 Media's standards.
B. In addition, 24/7 Media shall have the right, at any time, to remove
any of Advertisers advertising if 24/7 Media determines, in its sole discretion,
that the Creative, Advertiser Web Content or any portion thereof (i) violates
24/7 Media's then applicable advertising policy, or (ii) is otherwise
objectionable to 24/7 Media, in which event 24/7 Media shall refund to
Advertiser a pro rata portion of the fee which Advertiser has paid to 24/7 Media
for display of the Creative (if Advertiser has paid 24/7 Media a flat fee).
C. If, for any reason, 24/7 Media must cancel this Agreement within the
dates of the Campaign (as set forth in the insertion order) then 24/7 Media will
deliver to Advertiser a written notice of cancellation. In the event of such a
cancellation, Advertiser will only be responsible for payment up until the
cancellation date (as set forth in the notice). Should the level of impressions
at the date of cancellation be lower than as set forth in the insertion order,
Advertiser will be responsible for payment based on the planned number of
impressions set forth in the insertion order.
Section 5. Miscellaneous.
A. 24/7 Media and Advertiser are independent contractors, and neither 24/7
Media nor Advertiser is an agent, representative or partner of the other. 24/7
Media may terminate this Agreement at any time in the event of material breach
of this Agreement by Advertiser.
B. Advertiser understands that once the Creative is made available, it
will not be changed or modified in any way and there shall be no refunds or
pro-ration of rates even if Advertiser elects to discontinue display of the
Creative prior to expiration of the advertising term, except as expressly
provided herein. Advertising rates are subject to change by 24/7 Media from time
to time; any rate changes will apply to any additional advertising services
requested by Advertiser after such rate change.
C. Acceptance of this insertion order is subject to review of 24/7
management, and is not a granting of credit.
D. This Agreement sets forth the entire agreement between Advertiser and
24/7 Media, and supersedes any and all prior agreements (whether written or
oral) of 24/7 Media and Advertiser with respect to the subject matter set forth
E. This Agreement may only be modified, or any rights under it waived, by
a written document executed by both parties.
F. This Agreement shall be interpreted, construed and enforced in all
respects in accordance with the internal laws of the State of New York, without
regard to its principles of conflicts of law.
G. Advertiser may not assign this agreement, in whole or in part.