{"id":42010,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/affiliation-agreement-24-7-media-inc-and-nbc-multimedia-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"affiliation-agreement-24-7-media-inc-and-nbc-multimedia-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/affiliation-agreement-24-7-media-inc-and-nbc-multimedia-inc.html","title":{"rendered":"Affiliation Agreement &#8211; 24\/7 Media Inc. and NBC Multimedia Inc."},"content":{"rendered":"<pre>                             24\/7 MEDIA, INC. \/ NBC\n                                   AFFILIATION\n                                    AGREEMENT\n\n         AFFILIATION AGREEMENT, dated as of March 11, 1999 (the 'Effective\nDate'), among 24\/7 Media, Inc., a Delaware corporation with an address at 1250\nBroadway, 27th floor, New York, NY 10001 ('24\/7'), and NBC Multimedia, Inc., a\nDelaware corporation with an address at 30 Rockefeller Plaza, New York, NY 10112\n('NBC').\n\n         WHEREAS, National Broadcasting Company, Inc. (hereinafter the 'NBC\nNetwork') and\/or its affiliates are the operators and owners of the television\nstations (the 'O\/O TV Stations') and the Internet Web sites (the 'O\/O Web\nSites') specified on Schedule A hereto;\n\n         WHEREAS, the NBC Network provides television programming and, through\nNBC Interactive Neighborhood ('NBC-IN'), Internet content, to affiliated\ntelevision stations ('NBC Affiliates'), each of which operates and owns a\ntelevision station and many of which operate an associated Internet Web site\n(the 'Affiliate Web Sites', and collectively with the O\/O Web Sites, the 'Web\nSites');\n\n         WHEREAS, 24\/7 operates a network of Internet Web sites (the '24\/7\nNetwork') for which it solicits advertisers, advertising agencies, buying\nservices or others ('Advertisers') regarding the placement of advertising\nbanners and similar devices and sponsorships ('Advertising') for display on\npages, screens, and other segments or spaces on web sites reasonably suitable\nfor the display of such Advertising;\n\n         WHEREAS, NBC wishes to engage 24\/7 to sell Advertising on the Web Sites\nindividually and in packages that combine inventory from certain of the Web\nSites, the O\/O TV Stations, NBC Affiliates and, in certain limited circumstances\nset forth in Section 2.A, the 24\/7 Network, and 24\/7 wishes to accept such\nengagement; and\n\n         WHEREAS, NBC and 24\/7 wish to encourage NBC Affiliates to become\nparties to an Affiliation Agreement (the 'Affiliate Agreement') among the NBC\nAffiliates, 24\/7 and NBC-IN;\n\n         NOW, THEREFORE, in consideration of the foregoing, the mutual covenants\nand agreements contained herein and for other good and valuable consideration,\nthe receipt and sufficiency of which are hereby acknowledged, it is agreed as\nfollows:\n\n1.       Affiliation.\n\n         A. NBC hereby designates 24\/7 as its exclusive third-party Internet\nadvertising representation firm during the Term to sell (a) Co-op Advertising\n(as defined below) in packages that combine inventory from one or more of the\nWeb Sites covered by an O\/O TV Station or NBC Affiliate where 24\/7 then has in\nplace a dedicated full-time salesperson on site pursuant to Section 2.F (the\n'Manned Markets'), and on-air inventory from such O\/O TV Stations and\/or NBC\nAffiliates, and (b) Advertising on the Web Sites in the Manned Markets. In\naddition, NBC\n\n\nConfidential treatment has been requested for certain portions of this Exhibit\npursuant to Rule 406 under the Securities Act of 1933, as amended. The omitted\nportions have been filed separately with the Securities and Exchange Commission\nand are indicated by asterisk (*).\n\n                                        1\n\n\nhereby grants 24\/7 the non-exclusive right to sell Co-op Advertising and\nAdvertising in all markets covered by an O\/O TV Station that are not Manned\nMarkets. 24\/7 shall have a right of first refusal to man such markets before NBC\nengages another third party. NBC also agrees to arrange for the O\/O TV Stations,\nand to use commercially reasonable efforts to encourage NBC Affiliates, to\nbecome party to an Affiliate Agreement substantially in the form of Exhibit A\n(each, an 'Affiliate Agreement') to be attached hereto within 30 days of the\nEffective Date in accordance with the timetable set forth on Schedule B hereto.\n\n         B. For purposes of this Agreement, 'Co-op Advertising' is intended to\nmean a coordinated television and Internet advertising campaign in which\nmultiple advertisers participate simultaneously on a cooperative basis, and\nwhich (x) incorporate a promotional television advertisement in which viewers\nare directed to the Web Site of the television station upon which such\nadvertisement appears, and more specifically to a promotion appearing on such\nWeb Site (the 'Promotion'), (y) incorporate Advertising appearing on such Web\nSite which directs end users to the Promotion, and (z) results in at least 30%\nof the total ad buy being allocated to such Web Site Advertising. It is mutually\nunderstood and agreed that 24\/7 may have the opportunity to sell Co-op\nAdvertising that deviates from the terms set forth herein; provided, that (i)\n24\/7 may do so only with the consent of NBC and the applicable station manager,\nwhich consents may be withheld in NBC's or such station manager's discretion, as\nthe case may be, and (ii) payments with respect to such modified Co-op\nAdvertising shall be governed by the applicable Affiliate Agreement.\n\n2.       Obligations of 24\/7.\n\n         In furtherance of the foregoing, 24\/7 covenants and agrees to:\n\n                  A. utilize its best efforts to sell Co-op Advertising and\nAdvertising to Advertisers for placement on the Web Sites, the O\/O TV Stations\nand the NBC Affiliate stations located in the Manned Markets, at such prices as\nNBC, the O\/O TV Stations, such NBC Affiliate stations and 24\/7 shall mutually\nagree, and in accordance with this Agreement and any Affiliation Agreements;\nprovided, that if the inventory of a Web Site sought by a particular Advertiser\n(including any inventory controlled by NBC-IN thereon) is sold out or otherwise\nnot sufficient to meet the needs of a particular advertiser for the time periods\nsought by such Advertiser, then 24\/7 may offer such Advertiser inventory during\nsuch time periods on the 24\/7 Network solely as a supplement to such Web Site's\ninventory;\n\n                  B. utilize commercially reasonable efforts to sell Advertising\nfor placement on the Web Sites in the non-Manned Markets, all in accordance with\nthis Agreement and the applicable Affiliation Agreements, if any, with all such\nAdvertising and the rates therefor subject to the approval of the applicable\nstation management and NBC-IN.\n\n                  C. offer inventory on the 24\/7 Network to the O\/O TV Stations\nand the NBC Affiliates in those situations when such O\/O TV Stations and\/or NBC\nAffiliates have identified an advertiser who seeks more inventory than is\navailable on such O\/O TV Station's or NBC Affiliate's Web Site;\n\n                                        2\n\n\n\n                  D. not to sell packages which in any fashion combine Internet\ninventory and television inventory on behalf of any competitor of the NBC\nNetwork, the O\/O TV Stations or the NBC Affiliates in any local market\ncontaining an O\/O Station or an NBC Affiliate that executes the Affiliate\nAgreement within 90 days' after first being offered the opportunity to do so;\nprovided, that 24\/7 agrees to negotiate in good faith with each such O\/O Station\nand NBC Affiliate and incorporate reasonable changes to the Affiliate Agreement\nin order to accommodate the needs of each such O\/O Station or NBC Affiliate, as\nthe case may be;\n\n                  E. offer all services set forth in this Section 2 to O\/O TV\nStations and NBC Affiliates in accordance with the timetables set forth on\nSchedules A and B;\n\n                  F. maintain suitable and qualified personnel in\nadministrative, sales and technical positions necessary for 24\/7 to perform\neffectively the terms of this Agreement; 24\/7 shall hire and employ during the\nTerm one salesperson resident in each of the fifteen (15) mutually agreed upon\nO\/O TV Stations and NBC Affiliate stations (with the intention of manning at\nleast 20 of the top 25 markets); which salespersons shall devote substantially\nall of their full-time efforts to the sale of Advertising in their assigned\nmarket pursuant to this Agreement (each, a 'Manned Market Salesperson', and\ncollectively the 'Manned Market Salespeople'); provided, that if any such Manned\nMarket Salesperson's employment is terminated, whether voluntarily or\ninvoluntarily, or if any such Manned Market Salesperson dies or becomes\npermanently disabled, then 24\/7 shall promptly replace such Manned Market\nSalesperson; and provided, further, that the hiring of each such Manned Market\nSalesperson, and any replacements therefor, shall be subject to the reasonable\napproval of NBC and station management of the applicable O\/O TV Station or NBC\nAffiliate, as the case may be;\n\n                  G. serve or cause to be served Advertising to the Web Sites;\nit is understood that Advertising shall be served initially through a\nre-direction of Advertising from 24\/7's ad serving system to DART, the ad\nserving system currently employed by NBC; provided, that NBC may elect at any\ntime upon 60 days notice to 24\/7 to transition fully to 24\/7's ad serving system\nat 24\/7's sole cost and expense, whereupon 24\/7 shall use its best efforts to\npromptly effect a smooth transition to its system; and provided, further, that\nupon such election by NBC, the parties shall negotiate in good faith regarding a\nservice level agreement covering Internet up-time, server up-time and response\ntime, and other metrics relating to the performance of 24\/7's ad serving system\nand the Internet connectivity thereof, which in no event shall be less favorable\nto NBC than that of any service level agreement provided to any other customer\nof 24\/7;\n\n                  H. provide NBC with prompt notice, via e-mail posting, of all\nnew Co-op Advertising and Advertising that has been sold by 24\/7 to be displayed\non the Web Sites, and honor any decision by NBC or the station management of the\napplicable O\/O TV Station or NBC Affiliate, as the case may be, to decline any\nCo-op Advertising or Advertising, in accordance with the Provisions in 3(B)\nbelow;\n\n                  I. provide NBC with real-time access to records that will\nallow it to monitor the volume of paid Co-op Advertising and Advertising\ndelivered to the Web Sites and the\n\n                                        3\n\n\n\nrevenue produced (subject to billing corrections and adjustments) thereby; all\nsuch records, including data, statistical information or other traffic analysis,\nproduced or provided by 24\/7 (the 'Data') shall be the joint property of 24\/7\nand NBC; provided, however, that 24\/7 shall not, and shall ensure that any third\nparty ad serving company engaged by 24\/7 contractually agrees not to, sell or\notherwise distribute the Data to any third parties without the prior written\nconsent of NBC, which may be withheld by NBC in its sole discretion;\n\n                  J. to assist NBC in the acquisition of syndicated content\nacquisitions for the Web Sites;  provided,  that NBC shall have no obligation to\naccept any such acquisition sourced by 24\/7;\n\n                  K. conduct quarterly sales seminars and reviews during the\nTerm in rotating locations as mutually agreed by 24\/7 and NBC-IN, with the\ncontent and format of such seminars to be developed by 24\/7 in cooperation with\nthe Steering Committee (as defined below) with the intent of communicating the\nsales experiences and successes of the Manned Market Salespeople to the sales\nstaffs of the non-Manned Market stations; provided, that the quality of such\nseminars shall be at a level reasonably acceptable to NBC-IN; and provided,\nfurther, that 24\/7 and NBC shall be jointly responsible for all costs and\nexpenses associated therewith (such costs to be subject to mutual prior\napproval) other than travel, lodging and meals of the attendees of such\nseminars, which shall be at the sole expense of the applicable O\/O TV Station or\nNBC Affiliate, as the case may be; and\n\n                  L. provide sales and marketing products, including brochures,\nmarketing materials and case studies, to the sales staffs of the non-Manned\nMarkets, which are of a quality reasonably acceptable to NBC-IN; provided, that\nNBC shall reimburse 24\/7 for the actual and reasonable out of pocket costs and\nexpenses of such products and that all such costs and expenses shall be subject\nto NBC's prior approval.\n\n3.       Obligations of NBC.\n\n         NBC covenants and agrees to:\n\n         A. consult with 24\/7 regarding the hiring and daily management of the\nManned Market Salespeople, and provide such sales personnel suitable office\nspace at the applicable O\/O TV Station, and to make available to such sales\npersonnel the reasonable use of all existing office facilities (general support\nstaff, telephone system fax machines, photocopiers, rest rooms, kitchen\nfacilities) on the same basis that such facilities are made available to\nemployees of NBC or the TV Stations; no indirect or communal expense shall be\nallocated to 24\/7 for the provisions in this paragraph, other than for expenses\nincurred directly by the 24\/7 employee (i.e. long distance telephone, travel and\nentertainment, personal computer and personal office supplies);\n\n         B. provide 24\/7 with NBC Network policies, as amended from time to\ntime, regarding the acceptance of advertising and notify 24\/7 within two\nbusiness days from the time notice of any new Co-op Advertising or Advertising\nis given in accordance with Section 2.F of NBCs rejection of any new Co-op\nAdvertising or Advertising. Failure to provide timely notice\n\n                                        4\n\n\n\nof rejection of the new Co-op Advertising or Advertising shall be deemed\nacceptance thereof, until such time as NBC notifies 24\/7 of NBC's rejection\nthereof at which time 24\/7 shall promptly remove the Co-op Advertising or\nAdvertising;\n\n         C. furnish 24\/7 with all subscribership, viewership, inventory, and\nusage reports, reviews and audience studies, deliveries, census requirements,\nand any other information regarding the Web Sites as is reasonably available to\nNBC and is deemed appropriate by NBC in its sole discretion for use by 24\/7 for\nthe sale of Co-op Advertising and Advertising; and\n\n         D. not engage, contract with, license or permit any 3rd party Internet\nadvertising representation firm other than 24\/7 and its employees to sell, or\nrepresent NBC or any of the O\/O TV Stations for the sale of Advertising and\nCo-op Advertising for which 24\/7 has been granted exclusive Internet advertising\nrepresentation rights pursuant to Section 1.\n\n4.       Governance.\n\n         A. 24\/7 shall appoint a senior officer to manage the relationship\ncontemplated hereby and shall hire the Manned Market Salespeople to sell Co-op\nAdvertising and Advertising pursuant to this Agreement; provided, that the\nhiring or appointment of all such personnel, and any replacements therefor,\nshall be subject to NBC's reasonable approval. All such personnel shall be\nemployees of 24\/7 and shall be compensated entirely by 24\/7. 24\/7's relationship\nmanager and its sales personnel shall provide periodic reports to NBC in a\nformat reasonably acceptable to NBC regarding sales of Co-op Advertising and\nAdvertising made pursuant to this Agreement and shall confer directly with the\nstation managers of the O\/O TV Stations and each participating NBC Affiliate\nregularly as needed to discuss strategies and goals and to resolve sales\nconflicts.\n\n         B. The parties shall form a steering committee (the 'Steering\nCommittee') which shall be composed, of six representatives, one from each of\n(i) the O\/O TV Stations, (ii) the NBC Affiliates, (iii) NBC-IN, and three from\n24\/7. The Steering Committee shall assist in developing and maintaining\nprocesses in order to achieve the best overall performance by 24\/7 hereunder,\nincluding, without limitation, resolving conflicts between station management\nand their resident Manned Market Salespeople, the timing of NBC Affiliate\nroll-outs, and setting priorities for the program. The parties shall use their\nbest efforts to incorporate the recommendations of the Steering Committee into\ntheir performance under this Agreement and, the Affiliate Agreements.\n\n5.       Payments.\n\n                  A. Advertisers shall be directed to pay all cash and other\nconsideration generated from the sale of Co-op Advertising and Advertising by\n24\/7 pursuant to and during the term of this Agreement and at all times\nthereafter following the termination of this Agreement (each, a 'Payment')\ndirectly to NBC or the applicable NBC Affiliate. If 24\/7 receives any such\npayment from an advertiser, it shall immediately forward such payment to NBC or\nthe applicable NBC Affiliate without any deduction or set-off whatsoever. 24\/7\nwill submit a monthly billing statement outlining commissions earned for\nAdvertising on NBC-IN sold by 24\/7, which billing\n\n                                        5\n\n\n\nstatement shall specify the amounts due 24\/7 according to Schedule C. NBC shall\npay 24\/7 all undisputed amounts owed to 24\/7 within forty-five (45) days after\nNBC's collection of the Payment that gave rise to such obligation. It is\nunderstood that when calculating the portion of the Payment owed to 24\/7\nhereunder, NBC shall exclude those advertising agency commissions actually\nretained by agencies or paid by NBC to agencies with respect to the sale of\nAdvertising.\n\n                  B. In the event that NBC converts to 24\/7 ad serving\ntechnology, NBC may elect to have 24\/7 serve advertisements not sold by 24\/7.\nFor such ad serving NBC will pay a serving fee at a cost per thousand ('CPM ')\nas shown below: * \n\n6. Equity Issuance. In consideration of the foregoing, on the date hereof, 24\/7\nshall grant NBC a warrant which will give NBC the right to purchase 150,000\nshares of common stock, par value $.01 per share (the 'Common Stock'), of 24\/7\nin the form attached hereto as Exhibit 6(a) and pursuant to a Warrant Purchase\nAgreement, in the form attached hereto as Exhibit 6(b). The exercise price per\nshare shall be equal to the average closing price of the Common Stock as\nreported by Nasdaq on the five trading days immediately preceding the date of\nthis Agreement.\n\n7. Intellectual Property. All hardware, software, programs, codes, trade names,\ntechnology, intellectual property, licenses, patents, trademarks, copyrights,\ntrade secrets, know-how, and processes owned by 24\/7 as of the Effective Date\n(collectively, the '24\/7 Technology') used by 24\/7 under this Agreement shall\nremain the sole property of 24\/7. NBC shall have no rights, title or interest in\nthe 24\/7 Technology. All hardware, software, programs, codes, trade names,\ntechnology, intellectual property, licenses, patents, trademarks, copyrights,\ntrade secrets, know-how, and processes owned by NBC as of the Effective Date\n(collectively, the 'NBC Technology') used by NBC under this Agreement shall\nremain the sole property of NBC. 24\/7 shall have no rights, title or interest in\nthe NBC Technology. Upon the expiration or termination of this Agreement, each\nparty shall promptly return all information, documents, manuals and other\nmaterials belonging to the other party except as otherwise provided in this\nAgreement.\n\n8. Year 2000. In addition to any other warranties and representations provided\nby 24\/7 pursuant hereto, whether pursuant to this Agreement, by law, equity, or\notherwise, 24\/7 represents and warrants that (a) any product(s) and\/or\nservice(s) provided by 24\/7 hereunder, including, without limitation, each item\nof hardware, software, or firmware; any system, equipment, or products\nconsisting of or containing one or more thereof; and any and all enhancements,\nupgrades, customizations, modifications, maintenance and the like\n('Products\/Services') shall be Year 2000 Compliant at the time of delivery and\nat all times\n\n                                        6\n\n\n\nthereafter and in all subsequent updates or revisions of any kind, and (b)\n24\/7's supply of the Products\/Services to NBC shall not be interrupted, delayed,\ndecreased, or otherwise affected by dates\/times prior to, on, after or spanning\nJanuary 1, 2000. For purposes of this Agreement, Year 2000 Compliant means that\n(1) the Products\/Services accurately process, provide and\/or receive date\/time\ndata (including without limitation calculating, comparing, and sequencing),\nwithin, from, into, and between centuries (including without limitation the\ntwentieth and twenty-first centuries), including leap year calculations, and (2)\nneither the performance nor the functionality nor 24\/7's supply to NBC of the\nProducts\/Services will be affected by dates\/times prior to, on, after, or\nspanning January 1, 2000. The design of said Products\/Services to ensure\ncompliance with the foregoing warranties and representations shall include,\nwithout limitation, date data century recognition, calculations that accommodate\nsame century and multi-century formulae and date values, and date data interface\nvalues that reflect the century. In particular, but without limitation, (i) no\nvalue for current date\/time will cause any error, interruption, or decreased\nperformance in the operation of such Products\/Services, (ii) all manipulations\nof date\/time-related data (including, but not limited to, calculating,\ncomparing, sequencing, processing, and outputting) will produce correct results\nfor all valid dates\/times, including when used in combination with other\nproducts, (iii) date elements in interfaces and data storage will specify the\ncorrect century to eliminate date ambiguity without human intervention,\nincluding leap year calculations, (iv) where any date element is represented\nwithout a century, the correct century will be unambiguous for all manipulations\ninvolving that element, (v) authorization codes, passwords, and zaps (purge\nfunctions) should function normally and in the same manner prior to, on, after\nand spanning January 1, 2000, including, without limitation, the manner in which\nthey function with respect to expiration dates\/times and CPU serial numbers. No\nobligation of 24\/7 under this Agreement shall be excused by reason of the\nfailure of any other person's (other than NBC's) Products\/Services to be Year\n2000 Compliant, nor shall such occurrence(s) be deemed a force majeure event.\n\nIn the event of breach of this warranty, in addition to any other remedies NBC\nmay have, whether pursuant to this Agreement, by law, equity or otherwise, NBC\nshall be entitled to repair or replacement of any non-Compliant item, at no cost\nto NBC, within sixty (60) days after notice of breach from NBC to 24\/7, or such\ndifferent period as specified by NBC in its sole discretion. In addition to\n24\/7's obligations as set forth above, 24\/7 shall indemnify and hold NBC\nharmless from and against any claims, costs, losses, damages, or expenses\n(including reasonable attorneys' fees) incurred by NBC arising out of or\nrelating to (a) any failure of the Products\/Services to be Year 2000 Compliant\nor (b) any failure of 24\/7 or its vendors', sub-suppliers', or contractors'\nProducts\/Services to be Year 2000 Compliant. Notwithstanding anything herein to\nthe contrary, the liability of 24\/7 for a breach of 24\/7's Year 2000 Compliant\nrepresentation and warranty shall not be subject to any limitations or\nexclusions of remedies or warranties contained in this Agreement or any other\nagreement between the parties.\n\n9. Confidentiality. During the Term, each party hereto (the 'Disclosing Party')\nmay disclose to the other party (the 'Receiving Party') information in\nconnection with the performance of this Agreement, including, without\nlimitation, information concerning the Disclosing Party's business, products,\nservices, content, technical data, trade secrets, customer or advertiser lists,\nmarketing plans, financial documents or data, which when provided hereunder in\n\n                                        7\n\n\n\ndocumentary or other tangible form shall be marked or stamped 'Confidential',\nand which if disclosed orally or visually shall be identified in a writing\nmarked 'Confidential' by the Disclosing Party and submitted to the Receiving\nParty within thirty (30) days after disclosure. All such information of or about\nthe Disclosing Party shall be 'Confidential Information'. The parties shall use\nthe Confidential Information of the other party solely to perform its\nobligations under this Agreement, and all Confidential Information shall remain\nthe sole property of the Disclosing Party. 24\/7 and NBC covenant to each other\nthat during the Term and for a period of three (3) years thereafter, neither\nparty shall disclose to any third party (other than its employees and directors,\nin their capacity as such, and the employees and directors of any affiliate, on\na need to know basis so long as they are bound by the terms of this Agreement)\nany information regarding the terms and provisions of this Agreement or any\nConfidential Information of the other party except (i) in connection with any\nfederal securities laws and any applicable rules and regulations of any stock\nexchange or quotation system; and (ii) in a confidential disclosure made in\nconnection with a contemplated financing, merger, consolidation or sale of\ncapital stock of 24\/7 or NBC or any affiliate of NBC. Notwithstanding the\nforegoing, the Receiving Party shall have no obligation under this Agreement\nwith respect to any Confidential Information disclosed to it which (a) the\nReceiving Party can demonstrate was already known to it at the time of its\nreceipt hereunder, (b) is or becomes generally available to the public other\nthan by means of the Receiving Party's breach of its obligations under this\nAgreement, (c) is independently obtained from a third party whose disclosure\nviolates no duty of confidentiality, (d) is independently developed by or on\nbehalf of the Receiving Party without access to or use of or reliance on any\nConfidential Information furnished to it under this Agreement, and such\nindependent development can be reasonably evidenced by the Receiving Party, or\n(e) is disclosed pursuant to applicable law or regulation or by operation of\nlaw, provided that the Receiving Party may disclose only such information as is\nlegally required, and provided further that the Receiving Party shall provide\nreasonable notice to the Disclosing Party of such requirement and a reasonable\nopportunity to object to such disclosure.\n\n10. Publicity. Each party shall consult with the other party before issuing any\npress or other release or otherwise making any other public statement or any\nstatement to employees, customers or vendors of the parties with respect to this\nAgreement; provided, however, that except as required by applicable law, neither\nparty shall issue any such press release or make any such public statement or\nany statement to employees, customers or vendors without the prior written\nconsent of the other party.\n\n11. Records and Audit. Each party shall maintain complete, clear and accurate\nbooks and records to verify in detail the calculations used to determine\npayments hereunder. Each party shall keep, store and maintain such books and\nrecords for at least three years after Termination of the Agreement. At any time\nduring the Term or for three years thereafter, either party may, on thirty days'\nnotice to the other party, appoint an independent certified account to audit the\nother party's books and records during normal business hours to verify\ncalculations, and the other party shall provide reasonable cooperation and\nassistance necessary to the performance of said audit; provided, however, that\neach party shall be limited to one (1) such audit in any twelve (12) month\nperiod.\n\n\n                                        8\n\n\n\n12.      Term and Termination.\n\n                  A. The term of this Agreement (the 'Term') shall commence on\nthe Effective Date and shall continue in effect until (3) three months after the\ndate, as determined under the provisions of Section 18 below, on which either\nparty gives written notice to the other party of its election to terminate the\nAgreement; provided, however, that except as set forth below in this Section,\nneither party may give notice of termination to the other party until three (3)\nmonths prior to the third anniversary of the Effective Date.\n\n                  B. On or after October 1, 2000, either party terminate the\nAgreement with 60 days' prior written notice if gross total billings for Co-op\nAdvertising and Advertising sold pursuant to this Agreement is less than\n$* for the three months ended September 30, 2000.\n\n                  C. This Agreement may be terminated by either party on 60\ndays' prior written notice to the other party upon the occurrence of a material\nbreach by the other party of any covenant, duty or undertaking herein, which\nmaterial breach continues without cure for a period of 45 days after written\nnotice of such breach from the non-breaching party to the breaching party.\n\n                  D. Either party may terminate this Agreement if a form of the\nAffiliate Agreement is not agreed upon and attached to this Agreement within\nthirty (30) days of the Effective Date.\n\n                  E. This Agreement may be terminated by NBC commencing 18\nmonths after the Effective Date if any of the following have occurred: (i) a\nsignificant change of ownership of 50% or more of NBC-IN, (ii) a merger of\nNBC-IN (or a company holding all or substantially all of the assets constituting\nNBC-IN) with a major Internet company, (iii) a sale of all or substantially all\nof the assets constituting NBC-IN, or (iv) a spin-off of NBC Internet properties\nor other material change in NBC-IN's status; provided, that NBC must provide\n24\/7 with 90 days prior written notice of such termination and such notice of\ntermination may not be given prior to 15 months after the Effective Date. If NBC\nterminates the Agreement pursuant to this Section, then on the date such\ntermination becomes effective it shall pay 24\/7 a termination fee (the\n'Termination Fee') equal to *.\n\n\n                                        9\n\n\n\n13.      Indemnification.\n\n                  A. NBC shall indemnify and hold harmless 24\/7 and its\nofficers, directors, employees and agents against and in respect of any and all\nclaims, suits, actions, proceedings and investigations instituted by third\nparties, as well as any judgments, damages, settlements, liabilities, and legal\nand other expenses (including reasonable legal fees and expenses of attorneys)\nas and when incurred, arising out of or based upon (a) any misrepresentation or\nbreach of the representations and warranties of NBC set forth in this Agreement,\nand (b) any non-compliance by NBC with any covenants or agreements of NBC\ncontained in or made pursuant to this Agreement. 24\/7 shall indemnify and hold\nharmless NBC, its affiliates, and their respective officers, directors,\nemployees and agents, against and in respect of any and all claims, suits,\nactions, proceedings and investigations instituted by third parties, as well as\nany judgments, damages, settlements, liabilities, and legal and other expenses\n(including reasonable legal fees and expenses of attorneys) as and when\nincurred, arising out of or based upon (a) any misrepresentation or breach of\nthe representations and warranties of 24\/7 set forth in this Agreement, and (b)\nany non-compliance by 24\/7 with any covenants or agreements of 24\/7 contained in\nor made pursuant to this Agreement.\n\n         B. Upon the assertion of any claim or the commencement of any suit or\nproceeding against an indemnified party by any third party that may give rise to\nliability of an indemnifying party hereunder, the indemnified party shall\npromptly notify the indemnifying party of the existence of such claim and shall\ngive the indemnifying party reasonable opportunity to defend and\/or settle the\nclaim at its own expense and with counsel of its own selection. The indemnified\nparty shall cooperate with the indemnifying party and shall at all times have\nthe right to fully participate in, but not control, such defense with its own\ncounsel and at its own expense. The indemnified party shall not make any\nsettlement of any claims which might give rise to liability of the indemnifying\nparty hereunder without the prior written consent of the indemnifying party.\n\n14. No Poaching. NBC and 24\/7 agree that during the Term, neither NBC nor 24\/7\nwill solicit or recruit the services of each other's employees, or hire any such\nemployees, for the purpose of selling Internet Advertising without prior written\nconsent of the other party. In addition, upon termination of this Agreement, the\nparty that first provides notice of termination (unless such notice is pursuant\nto Sections 12.C or 12.D), shall not solicit or recruit the services of the\nother party's employees, or hire any such employees, for the purpose of selling\nInternet Advertising for a period of one year without prior written consent of\nthe other party.\n\n15. No Waiver. This Agreement shall not be waived or modified except by a\nwritten consent to that effect signed by NBC and 24\/7.\n\n16. Assignment. Neither party may assign this Agreement without the prior\nwritten consent of the other, except (a) in connection with the sale of all or\nsubstantially all of its assets, (b) to the surviving entity in any merger or\nconsolidation, or (c) in the case of NBC, to an affiliated company. Each party\nagrees that if it assigns or transfers this Agreement, it shall cause such\nsuccessor, assignee, or transferee to assume all of such party's obligations\nhereunder.\n\n\n                                       10\n\n\n\n17. Governing Law. This Agreement shall be governed by and construed in\naccordance with the laws of the State of New York applicable to contracts made\nand performed therein, without regard to principles of conflicts of laws.\n\n18. Notices. All notices required or permitted to be given hereunder shall be in\nwriting and either hand-delivered, telecopied, mailed by certified first class\nmail, postage prepaid, or sent via electronic mail to the other party or parties\nhereto at the address(es) set forth below. A notice shall be deemed given when\ndelivered personally, when the telecopied notice is transmitted by the sender,\nthree business days after mailing by certified first class mail, or on the\ndelivery date if delivered by electronic mail.\n\n19. Entire Agreement. This Agreement, including the Schedules and Exhibits\nattached hereto, constitutes the entire agreement and supersedes all prior\nagreements of the Parties with respect to the transactions set forth herein and,\nexcept as otherwise expressly provided herein, is not intended to confer upon\nany other person any rights or remedies hereunder.\n\n20. Survival. The provisions of Sections 2.1, 5, 7-11, 13, 14 &amp; 17 shall survive\nany expiration or termination of this Agreement.\n\n21. Counterparts. This Agreement may be executed in counterparts, each of which\nshall be deemed an original and all of which together shall constitute one and\nthe same document.\n\n\n                                       11\n\n\n\n\n         IN WITNESS WHEREOF, the parties hereto have duly executed this\nAgreement this 11th day of March, 1999.\n\n24\/7 MEDIA, INC.\n\n\nBy:       \/s\/ David J. Moore\n   ------------------------------\nName:  David J. Moore\nTitle:  CEO\n\nNBC MULTIMEDIA, INC.\n\n\nBy:       \/s\/ Vincent C. Grosso\n   ------------------------------\nName:  Vincent C. Grosso\nTitle:  VP NBC Interactive\n\n3\/11\/99\n\n\n\n                                       12\n\n\n\n                                   SCHEDULE A\n\n                          O\/O TV Stations and Web Sites\n\n\n                                       *\n\n\n                                       13\n\n\n\n                                   SCHEDULE B\n\n                 Roll-out to O\/O TV Stations and NBC Affiliates\n\n\n                                       *\n\n\n                                       14\n\n\n\n\n                                   SCHEDULE C\n                                    Payments\n\n\nI.   Owned &amp; Operated Stations\n\nThe percentage of the Payment that shall be retained by 24\/7 and NBC-IN\nrespectively with respect to on-air advertising ('On-Air') and Internet\nadvertising ('Online') shall be determined in accordance with the following\ntable:\n\n\n                                       *\n\n\nWith respect to Co-op Advertising, the Payment amount shall be allocated between\nOn-Air and Online in a fashion that reasonably reflects the actual value of the\nOn-Air and Online components of such Co-op Advertising.\n\nTV Station commission rates are applicable to all revenue in the corresponding\nAggregate Annual Payments bracket, and are not retroactive to the first dollar.\nFor example, if the Aggregate Annual Payment is $20 million, split 60\/40 between\ntelevision and Internet, 24\/7 shall retain $*.\n\nThe first Aggregate Annual Payment Period shall be deemed to run from the date\nof this Agreement through December 31, 1999.\n\n\n                                       15\n\n\n\n\nII.      NBC Affiliates\n\nThe percentage of the Payment that shall be retained by 24\/7 and NBC-IN\nrespectively with respect to On-Air and Online shall be determined in accordance\nwith the following table:\n\n\n                                       *\n\n\nWith respect to Co-op Advertising, the Payment amount shall be allocated between\nOn-Air and Online in a fashion that reasonably reflects the actual value of the\nOn-Air and Online components of such Co-op Advertising.\n\n\n\n                                       16\n\n\n\n                                TABLE OF CONTENTS\n\n\n\n\n                                                                                              Page No.\n\n                                                                                                 \n1.   Affiliation.....................................................................................1\n2.   Obligations of 24\/7.............................................................................2\n3.   Obligations of NBC..............................................................................4\n4.   Governance......................................................................................5\n5.   Payments........................................................................................5\n6.   Equity Issuance.................................................................................6\n7.   Intellectual Property...........................................................................6\n8.   Year 2000.......................................................................................6\n9.   Confidentiality.................................................................................7\n10.  Publicity.......................................................................................8\n11.  Records and Audit...............................................................................8\n12.  Term and Termination............................................................................9\n13.  Indemnification................................................................................10\n14.  No Poaching....................................................................................10\n15.  No Waiver......................................................................................10\n16.  Assignment.....................................................................................10\n17.  Governing Law..................................................................................11\n18.  Notices........................................................................................11\n19.  Entire Agreement...............................................................................11\n20.  Survival.......................................................................................11\n21.  Counterparts...................................................................................11\n                                                                                           \nSCHEDULE A                 O\/O TV Stations and Web Sites............................................13\n\nSCHEDULE B                 Roll-out to O\/O TV Stations and NBC Affiliates...........................14\n\n\n\n                                       17\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6536,7615],"corporate_contracts_industries":[9503,9452],"corporate_contracts_types":[9613,9620],"class_list":["post-42010","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-247-media-inc","corporate_contracts_companies-general-electric-co","corporate_contracts_industries-services__advertising","corporate_contracts_industries-manufacturing__conglomerates","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42010","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42010"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42010"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42010"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42010"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}