{"id":42211,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/dart-service-agreement-doubleclick-inc-and-web-genesis-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"dart-service-agreement-doubleclick-inc-and-web-genesis-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/dart-service-agreement-doubleclick-inc-and-web-genesis-inc.html","title":{"rendered":"DART Service Agreement &#8211; DoubleClick Inc. and Web Genesis Inc."},"content":{"rendered":"<pre>\n                         D.A.R.T. SERVICE AGREEMENT\n                         --------------------------\n\n\n          \"DART  Technology,\"  as herein  defined,  may be used only on the\ncondition  that the  Company (as defined  herein)  agrees to the  following\nterms  and   conditions.   As  of  April  15,   1997,   DoubleClick,   Inc.\n(\"DoubleClick\")  with an address at 41 Madison  Avenue,  New York, NY 10010\ngrants to:\n\nCompany: Web Genesis, Inc.\n\nAddress: 31 West 21st Street, 4th Floor\n         ------------------------------\n\n         New  York,  NY        USA            10011\n         ---------------------------------------------\n         City        State     Country        Zip Code\n\n(herein \"Company\"),  and Company hereby accepts on the terms and conditions\nset forth herein, the right to use the DART Technology, developed and owned\nby  DoubleClick  as  described  below in  connection  with the  delivery of\nBanners (as defined herein) to the Web Site (as defined herein).\n\n          1. Definitions:  As used herein the following defined terms shall\nhave the following meanings:\n\n               a.   \"Advertiser\"  is  defined  as  each  advertiser   which\n     authorizes  Company to deliver  said  advertiser's  Banners to the Web\n     Site.\n\n               b. \"Banner\" is defined as an Advertiser's  advertisement and\n     its contents which appears on the Web Site.\n\n               c.  \"Impression\"  is defined as occurring each time a Banner\n     appears on the Web Site  resulting  from a user  accessing or visiting\n     such Web Site.\n\n               d.  \"Non-Paying  Banner\"  is  defined  as a Banner for which\n     Company does not receive payment or  consideration of any kind for its\n     delivery  to the Web Site.  All  Non-Paying  Banners  shall  reside on\n     Company's server.\n\n               e. \"Paid  Banner\"  is defined as a Banner for which  Company\n     shall receive payment or consideration of any kind (including, without\n     limitation,  in-kind or barter  consideration)  from an Advertiser for\n     delivery of its Banner to the Web Site.\n\n               f. \"Web Site\" is defined as webgenesis.com.\n\n          2. DART Technology:  The DART Technology  consists of (a) any and\nall of DoubleClick's  proprietary  technology which allows for the targeted\ndelivery of Banners to Internet  users based on a set of criteria  selected\nby  Advertisers,  (b)  DoubleClick's  Ad  Management  System  and  (c)  all\naccompanying written,  explanatory or technical material, user or reference\nmanuals and  installation  guidelines  related to the DART  technology (the\n\"Documentation\").\n\n          Company shall be given a unique password to access  DoubleClick's\nAd Management System so as to permit the delivery of Banners using the DART\nTechnology which password shall be made available to DoubleClick by Company\nfor DoubleClick's use in trafficking Banners as provided hereunder. Company\nshall be solely responsible for soliciting all Advertisers and handling all\nAdvertiser inquiries of any type or nature.\n\n          DoubleClick's sole obligations hereunder shall be to (a) make the\nDART  Technology  available  to Company for the  delivery  of Banners,  (b)\ntraffic Banners using the DART Technology,  which trafficking shall consist\nof inputting the Banners into the DART Technology  service and (c) redirect\nits server to pick up  Non-Paying  Banners from  Company's  server so as to\nenable  Company to deliver said  Non-Paying  Banners.  Notwithstanding  the\nforegoing,  Company  may,  upon  thirty (30) days prior  written  notice to\nDoubleClick,  and provided Company's designated employees have been trained\nby  DoubleClick  as  provided  herein,   traffic  Banners  using  the  DART\nTechnology. Thereafter, Company shall be solely responsible for trafficking\nall Banners in connection with the Web Site.\n\n          3. Grant of Rights:  In  consideration  of  Company's  payment to\nDoubleClick of the fees  specified in this  Agreement,  DoubleClick  grants\nCompany the non-exclusive and non-transferable right during the Term hereof\nto use the DART  Technology  for  delivery  Banners  to the Web  Site.  The\nparties  acknowledge and agree that Company's access to the DART Technology\nshall not extend  beyond that  necessary  to permit  Company to deliver the\nBanners to the Web Site. Company agrees that it shall be solely responsible\nfor all costs and expenses it incurs in connection  with this Agreement and\nuse  of  the  DART  Technology,  including,  without  limitation,  expenses\nassociated  with  creating,  developing,  editing,  updating and  otherwise\nmanaging  Banners  and all  content and  services  available  on or through\nBanners,  delivery  of  Banners  to the  Web  Site  and  establishment  and\nmaintenance of links to the Web Site.\n\n          4. Training: DoubleClick shall provide those employees of Company\nwho will be accessing and using the DART  Technology with a training course\n(the \"Training Course\") explaining the proper use of the DART Technology at\na time and place to be mutually  agreed upon by  DoubleClick  and  Company.\nCompany  acknowledges  and  agrees  that (a) it shall not permit any of its\nemployees to access and use the DART  Technology  unless any such  employee\nhas successfully completed the Training Course and has been so certified by\nDoubleClick;  and (b) the DART Technology  shall only be used in accordance\nwith the policies, practices and procedures described in the Documentation.\n\n          5. Fee: In  consideration  of the rights herein granted,  Company\nagrees to pay to DoubleClick as follows:\n\n               a. For Paid Banners: DoubleClick shall receive a monthly fee\n     calculated as follows:\n\n     Number of Paid Banner                           Cost Per One Thousand\n     Impressions per Month                             Impressions (CPM)\n     ---------------------                           ---------------------\n\n      0 - 5,000,000\n\n      5,000,001 and above\n\n     (By way of example,  if for a given calendar month there are 7,000,000\n     Paid Banner Impressions and DoubleClick provides trafficking services,\n     DoubleClick's fee for said month shall equal             calculated as\n     follows:  (i)     \/CPM for Paid Banner Impressions 1 through 5,000,000\n     (i.e.     ) and  (ii)     \/CPM for Paid Banner  Impressions  5,000,001\n     through 7,000,000 (i.e.     ).\n\n          If  Company  elects  to  traffic  Paid  Banners  as  provided  in\nparagraph  2 hereof,  the above  referenced  costs  per 1,000  Paid  Banner\nImpressions shall each be reduced by          to          and             ,\nrespectively.\n\n               b. For Non-Paying Banners:  Company shall pay to DoubleClick\n     a monthly fee equal to         \/CPM for Non-Paying Banner Impressions.\n\n               c.  Payment  Terms:  All  fees  due to  DoubleClick  for any\n     calendar  month  shall be payable  by check  within  thirty  (30) days\n     following the end of each month.\n\n          6. Term: The term of this  Agreement  (the \"Initial  Term\") shall\ncommence on the date first set forth above and shall  continue for a period\nof six (6) months  thereafter.  The term shall  thereafter be automatically\nextended on the same terms and conditions as are contained  herein for five\n(5) consecutive additional six (6) month periods (the \"Subsequent Periods\")\nunless either party  provides the other with written  notice at least sixty\n(60) days prior to the end of the  Initial  Term or any  Subsequent  Period\nstating that the Agreement  shall not be renewed.  The Initial Term and any\nSubsequent Period,  shall  collectively be referred to as the \"Term\".  Upon\nthe expiration or earlier termination of this Agreement, Company's right to\nuse the DART  Technology  or any part  thereof  shall end  immediately  and\nCompany shall no longer access the DART Technology and Company shall return\nall original  Documentation  (and any  authorized  copies of said  original\nDocumentation) to DoubleClick.\n\n          7. Limitations on Use: Company may not use, copy,  modify,  alter\nor distribute the DART Technology (electronically or otherwise),  except as\nexpressly authorized by DoubleClick in writing.  Under no circumstances may\nCompany reverse assemble, reverse compile or otherwise attempt by any other\nmethod to create or derive the source programs or any part thereof from the\nobject  program  or  from  other  information  made  available  under  this\nAgreement or  otherwise,  nor  authorize  any third parties to do the same.\nCompany  shall  not be  entitled  to  copy  the  Documentation,  except  as\nexpressly authorized by DoubleClick in writing.\n\n          8. Proprietary  Protection:  Company understands and acknowledges\nthat the DART Technology reflects  substantial trade secrets of DoubleClick\nand that  DoubleClick  shall have the sole and  exclusive  ownership of all\nright, title and interest in and to the DART Technology and all copies, and\nall  Enhancements (as defined herein) thereto  (including  ownership of all\ncopyrights,  patents  and other  intellectual  property  rights  pertaining\nthereto),  subject only to the rights expressly  granted to Company herein.\nThis  Agreement  does not provide  Company  with any title to or  ownership\ninterest  in the DART  Technology,  but only  with a right of  limited  use\nduring the Term hereof. At no time shall Company assert any right, title or\ninterest  in the  DART  Technology  or any  element  thereof  or in any new\nrelease  of  or  Enhancement  to  the  DART  Technology  or  in  the  names\n\"DoubleClick\",  \"Spotlight\",  \"Test It\", or any derivatives thereof, or any\nother  trademarks,  service marks,  tradenames,  symbols and logos owned or\ncontrolled  by  DoubleClick   (collectively,   \"DoubleClick's   Proprietary\nMaterials\").  Company agrees that it will not directly or indirectly use or\npermit any of DoubleClick's  Proprietary Materials to be used in connection\nwith any product,  service,  promotion or publication without DoubleClick's\nprior written  consent.  Company further  acknowledges  and agrees that the\nDocumentation was developed by DoubleClick and DoubleClick retains the sole\nand exclusive ownership of, and all right, title and interest in and to the\nDocumentation, including the copyrights therein.\n\n          9. Maintenance:  Upon Company's request, DoubleClick will provide\nmaintenance services,  if DoubleClick's  personnel are available to provide\nsuch  technical  support,  for a fee to be  negotiated in good faith by the\nparties  prior  to  DoubleClick  providing  such  services  [,  based  upon\nDoubleClick's  standard  hourly  rates].  It is understood  and agreed that\nDoubleClick  shall not be  required  to perform  any  maintenance  services\nhereunder.\n\n          10.  Updates  and  Upgrades:  During  the  Term  hereof  and upon\nCompany's  request and only as long as all outstanding  fees have been paid\nby Company to  DoubleClick,  DoubleClick  shall  provide  Company  with any\nnon-custom enhancements, maintenance modifications, updates and\/or upgrades\nof the  DART  Technology  (collectively,  \"Enhancements\")  as  they  become\navailable,  at no  additional  expense to Company and upon the provision of\nsaid  Enhancements  to Company the  foregoing  will become part of the DART\nTechnology for purposes of this Agreement. DoubleClick's failure to provide\nEnhancements shall not be deemed a material breach of this Agreement.\n\n          11.  Representations  and Warranties by DoubleClick:  DoubleClick\nwarrants and represents that DoubleClick has the full  unrestricted  right,\npower,  and legal capacity to enter into this  Agreement,  to carry out the\nterms  and  conditions  hereof  and to  grant to  Company  the  rights  and\nprivileges herein granted to Company.  EXCEPT AS PROVIDED IN THIS PARAGRAPH\n11,  DOUBLECLICK  MAKES NO  WARRANTIES  OF ANY  KIND,  WHETHER  EXPRESS  OR\nIMPLIED,  INCLUDING ANY IMPLIED WARRANTY OR  MERCHANTABILITY  OR FITNESS OF\nTHE DART  TECHNOLOGY  FOR A PARTICULAR  PURPOSE.  DOUBLECLICK  SHALL NOT BE\nLIABLE FOR OR TO COMPANY,  NOR FOR OR TO ADVERTISERS,  NOR FOR THE CONTENTS\nOF THE WEB  SITE OR  PAGES,  NOR FOR ANY  LOSS,  COST,  DAMAGE  OR  EXPENSE\n(INCLUDING  COUNSEL FEES) INCURRED BY ANY ADVERTISER IN CONNECTION WITH THE\nDELIVERY  OF ANY OF  ADVERTISER'S  BANNERS  TO THE  WEB  SITE  BY  COMPANY,\nINCLUDING,  WITHOUT  LIMITATION,  FOR ANY TECHNICAL  MALFUNCTION,  COMPUTER\nERROR OR LOSS OF DATA OR OTHER INJURY, DAMAGE OR DISRUPTION TO ADVERTISER'S\nBANNERS.  IN NO  EVENT  SHALL  DOUBLECLICK  BE  LIABLE  FOR  ANY  INDIRECT,\nINCIDENTIAL,  CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR\nRELATED TO THIS  AGREEMENT  EVEN IF SUCH DAMAGES ARE FORSEEABLE AND WHETHER\nOR NOT DOUBLECLICK HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT\nSHALL DOUBLECLICK'S LIABILITY ARISING OUT OF THE USE OF THE DART TECHNOLOGY\nOR OTHERWISE OUT OF THIS AGREEMENT,  NOTWITHSTANDING  THE FORM IN WHICH ANY\nACTION MAY BE BROUGHT (E.G. TORT, CONTRACT,  OR OTHERWISE) EXCEED THE TOTAL\nAMOUNT PAID TO DOUBLECLICK BY COMPANY HEREUNDER.  COMPANY SHALL REQUIRE ALL\nADVERTISERS  TO  SIGN  A  STATEMENT  ACKNOWLEDGING  THE  FOREGOING,   WHICH\nSTATEMENTS  SHALL BE PROMPTLY  FORWARDED  TO  DOUBLECLICK  BY COMPANY.  THE\nCOMPANY ACKNOWLEDGES THAT THE AFOREMENTIONED  REQUIREMENT IS OF THE ESSENCE\nOF THIS AGREEMENT.\n\n          12.  Representation  and Warranties by Company:  Company warrants\nand represents that:\n\n               a. Company has the full unrestricted right, power, and legal\n     capacity  to enter into this  Agreement,  to grant the  rights  herein\n     granted and fully to perform its obligations hereunder;\n\n               b. Company has entered into  Agreements with each Advertiser\n     granting Company the right to deliver said Advertiser's Banners to the\n     Web Site using DART Technology;\n\n               c. Company and\/or  Advertisers  own and\/or have the right to\n     use to the extent  necessary  all  material  contained in the Banners,\n     including,  without  limitation,  the  copyright,  trademark and other\n     proprietary  rights  in and to  such  materials  and  the  use of such\n     materials  will not  violate  any  federal,  state  or  local  laws or\n     regulations;\n\n               d. Company  and\/or  Advertisers  have secured the  requisite\n     permission to use any person's name,  voice,  likeness and performance\n     as embodied in the  Banners,  or any other  element  contained in said\n     material; and\n\n               e. Company's use of the DART Technology will not violate any\n     federal, state or local laws.\n\n          13.  Indemnification:   Company  agrees  to  indemnify  and  hold\nDoubleClick harmless from and against any and all claims, actions,  losses,\ndamages,  liability,  costs and expenses (including  reasonable  attorneys'\nfees)  arising  out  of or  in  connection  with  (i)  the  breach  of  any\nrepresentation,  warranty or agreement made by Company hereunder,  (ii) the\nWeb  Site  including,  without  limitation,   claims  for  infringement  of\ncopyright or other intellectual  property rights and violation of rights of\nprivacy or publicity  and\/or (iii) the delivery of Banners by Company using\nthe DART  Technology.  DoubleClick  shall  promptly  notify  Company of all\nclaims and proceedings related thereto of which DoubleClick becomes aware.\n\n          14. Termination by DoubleClick:  DoubleClick shall have the right\nto terminate this Agreement at any time if:\n\n               a.  Company  breaches  or  is  in  default  of  any  of  its\n     representations,  warranties,  agreements,  covenants  or  obligations\n     contained herein,  including,  without  limitation,  Company's payment\n     obligations,  and fails to cure such breach or default  within  thirty\n     (30) days of Company's receipt of DoubleClick's written notice of such\n     default.\n\n               b.  DoubleClick,  in its reasonable  good faith  discretion,\n     determines  that  Company  has used,  could use, or intends to use the\n     DART Technology in such a manner that (a) could damage or cause injury\n     to the DART  Technology or (b) reflects  unfavorably on the reputation\n     of DoubleClick.\n\n          15.  Assignment:  The  Agreement  does not  extend  to  Company's\nsubsidiaries,  affiliates,  assignees,  or  related  or  sister  companies.\nCompany's rights hereunder may not be sold,  transferred,  leased, assigned\nor  sublicensed  to any  individual,  firm,  corporation  or  other  entity\n(including,   without  limitation,   Company's  subsidiaries,   affiliates,\nassignees,  or related or sister  companies)  without  DoubleClick's  prior\nwritten  consent.  Any act in derogation of the foregoing shall be null and\nvoid and shall not relieve Company of its obligations under this Agreement.\nAny attempt by Company to assign the rights  granted  herein  shall be void\nand  shall  automatically   terminate  Company's  right  to  use  the  DART\nTechnology.\n\n          16. Audit Rights:  Upon written  notice,  DoubleClick may examine\n(or at  DoubleClick's  cost and expense  appoint an  independent  certified\npublic  accountant or reputable  industry audit  representative to examine)\nthe books and records of Company relating to the revenues earned by Company\nin connection  with its delivery of Banners using the DART  Technology,  on\nthe premises of Company, during reasonable business hours.\n\n          17. Confidentiality:  Any information relating to or disclosed in\nthe course of this  Agreement by either party (the  \"Disclosing  Party\") to\nthe other party (the \"Receiving  Party\"),  which is or should be reasonably\nunderstood to be  confidential  or  proprietary  to the  Disclosing  Party,\nincluding  but not  limited  to,  the  material  terms  of this  Agreement,\ninformation about the DART Technology and technical processes and formulas,\nsource code, product designs,  sales, cost and other unpublished  financial\ninformation,  product and business plans,  projections,  and marketing data\nshall be deemed \"Confidential Information\" and shall not be used, disclosed\nor reproduced by the Receiving  Party without the Disclosing  Party's prior\nwritten consent.  \"Confidential  Information\" shall not include information\n(a) already lawfully known to or  independently  developed by the Receiving\nParty,  (b) disclosed in published  materials,  (c) generally  known to the\npublic,  (d) lawfully  obtained from any third party, or (e) required to be\ndisclosed by law.\n\n          18. Independent Contractor Status: For purposes hereof each party\nshall be and act as an  independent  contractor  and not as partner,  joint\nventurer or agent of the other.\n\n          19.   Modifications  and  Waivers:   This  Agreement,   including\nrepresents the entire  understanding  between  DoubleClick  and Company and\nsupersedes all prior  agreements.  No waiver,  modification  or addition to\nthis  Agreement  shall be valid unless in writing and signed by the parties\nto this Agreement.\n\n          20.  Applicable  Law:  This  Agreement  shall be  governed by and\nconstrued in accordance with the substantive  laws of the State of New York\nand Company agrees that  jurisdiction  and venue of all matters relating to\nthis Agreement shall be vested  exclusively in the federal,  state or local\ncourts within the State of New York.\n\n          21.  Severability:  If any provision of this  Agreement  shall be\nadjudicated by any court of competent  jurisdiction to be  unenforceable or\ninvalid,  that  provision  shall be limited or  eliminated  to the  minimum\nextent  necessary so that this  Agreement  shall  otherwise  remain in full\nforce and effect and the other provisions shall be unaffected.\n\n\n                                          Accepted:\n\n                                          WEB GENESIS INC.\n\n                                          By:\n                                             ---------------------------\n\n                                          Title:\n                                                ------------------------\n\n\nApproved:\n\nDOUBLECLICK, INC.\n\nBy:\n   ---------------------------\nTitle:\n      ------------------------\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7345],"corporate_contracts_industries":[9503],"corporate_contracts_types":[9613,9620],"class_list":["post-42211","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-doubleclick-inc","corporate_contracts_industries-services__advertising","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\/42211","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=42211"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42211"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42211"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42211"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}