This Advertising Sales Representation Agreement is dated as of __________, (the “Effective Date“)
By and between
________________ having its office at ________________ (“First Party“),
And
________________ having its office at ________________ (“Second Party“).
______and ______ are sometimes referred to herein separately as a “Party” and together as the “Parties“. Capitalized terms used herein shall have the meanings ascribed to them in Article I hereof.
RECITALS
WHEREAS, ______desires to provide certain advertising services to ______; and
WHEREAS, each Party desires to set forth in this Agreement the principal terms and conditions pursuant to which ______will provide certain advertising services to ______.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, for themselves and their respective successors and assigns, hereby covenant and agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. (a) As used in this Agreement, the following terms shall have the following meanings, applicable both to the singular and the plural forms of the terms described:
“Ad Serving Fee” means the amount owed to ______in consideration for the Serving Services as set forth in Section 3.01(c).
“Ads” means advertisements for display on the Sites.
“Agreement” means this Advertising Sales Representation Agreement, together with the schedules hereto, as the same may be amended or supplemented from time to time in accordance with the provisions hereof.
“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York or California are authorized or required by law to close.
“Commissions” means the amount owed to ______in consideration for the the Retail Services and the Wholesale Services as set forth in Section 3.01(a) and Section 3.01(b), respectively.
“Confidential Information” shall have the meaning set forth in Section 3.7(b) of the Master Transaction Agreement.
“Contract” means any contract, agreement, insertion order, purchase order, or other commitment with respect to the Services entered into by ______on behalf of ______ in substantially the form approved by ______.
“IAB” means the Interactive Advertising Bureau, which is an independent organization that sets standards governing the sale and display on Ads on the Internet.
“Invoice Amount” means amounts due from advertisers and sponsorship partners for Services pursuant to this Agreement.
“Master Transaction Agreement” means the Master Transaction Agreement between ___ and ___ of even date herewith.
“Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a governmental entity or any department, agency or political subdivision thereof.
“Retail Services” means the sale of Ads for display on the Sites through retail channels.
“Service Costs” means the amounts to be paid to ______by ______ for Services provided hereunder.
“Services” means the Retail Services, the Wholesale Services, the Serving Services and the Strategic Transaction Services.
“Serving Services” means the display and tracking of Ads on the Sites.
“Sites” means ______’s Web site located at www.(website).com, its subdomains, and any other Web sites agreed upon in writing by the parties.
“Sponsorships” means transactions where an advertiser sponsors some portion of or event on, the Sites and, in exchange, is entitled to some additional advertising benefit outside of standard IAB ad unit guidelines.
“Strategic Transaction” means an Ad sales transaction that involves (i) customized placement (i.e., Ads that either does not comply with IAB ad unit guidelines or that are not a standard offering on the Sites), (ii) integration with a third party’s systems, (iii) post-transaction sales, or (iv) customized development.
“Strategic Transaction Services” means an Ad sales transaction that involves a Strategic Transaction.
“Subsidiary” means, as to any Person, a corporation, limited liability company, joint venture, partnership, trust, association or other entity in which such Person beneficially owns, either directly or indirectly, more than fifty percent (50%) of (i) the total combined voting power of all classes of voting securities of such entity, (ii) the total combined equity interests or (iii) the capital or profits interest, in the case of a partnership.
- Engagement of Services. First Party will serve as Second Party representative to ———————- sell Banner Advertising for Second Party Web Site located on the World Wide Web at the ——————- Advertising” means specific third party advertisements consisting of billboard-like graphics displayed in a specific location on the City Guide and other online Second Party Services (“Second Party Services”). First Party will update Second Party on the progress and demand of the Internet advertising marketplace, while Second Party will update First Party on new opportunities with Second Party Web Site.
- Compensation. Second Party will pay First Party a commission of twenty five percent (25%) of the revenues received by First Party from Banner Advertising sold by First Party. Second Party and First Party will also meet to discuss the creation of a bonus package designed to provide First Party with increased incentive to maximize Second Party advertising revenue.
- Invoicing and Payment. First Party will be responsible for invoicing and ——————— collecting all revenues from Banner Advertising sold by First Party on behalf of Second Party.
- Second Party shall have sole discretion to set the prices for all Banner Advertising. By the tenth (10th/) day of each month. First Party will remit to Second Party a check for seventy five per cent (75%) of all revenues received by First Party for Second Party Banner Advertising that First Party sold during the previous month. In the event that First Party is unable for any reason to collect the Banner Advertising revenue within one hundred twenty days (120) days after invoice, Second Party may collect such Banner Advertising revenue directly. If Second Party collects such late paying Banner Advertising revenues directly, Second Party will remit to First Party a check for twenty five (25%) of all late paying Second Party Banner Advertising revenues that Second Party collects.
- Implementation. Within fourteen (14) days after each sale, First Party will ————– fax Second Party a copy of the insertion order as well as any pertinent schedule details not listed on the insertion order (i.e., production contact information, banner advertising placement, and production materials such as text, logos, graphics, URL links, etc.). First Party shall provide all pertinent schedule details and production materials in a format specified by Second Party. Second Party will use commercially reasonable efforts to ensure that the Banner Advertising is accessible to end users promptly after receiving complete insertion orders and production materials from First Party. Second Party reserves the right to reject or remove any Banner Advertising from Second Party Services in its sole discretion at any time.
- Expenses. First Party will be solely responsible for all expenses, ——– including but not limited to telephone, fax, and all travel and entertainment costs.
- Account Directors. Second Party and First Party will appoint account directors. As —————– of the Effective Date, the Second Party account director will be ______and the First Party account director will be ______. Either party may change its account director by providing the other written notice.
- Reporting. By the fifteenth calendar day of each month, Second Party will ——— provide First Party with a tracking report that lists total number of page views during the previous month. Each Monday afternoon, Second Party will endeavor to provide a weekly tracking report to First Party that lists daily banner impressions and click-through (by banner) for each advertising creative that ran in the prior week. Second Party will work with First Party’s programmers to export the banner tracking results to First Party electronically. All information received in connection with such reports shall be deemed to be “Confidential Information” in accordance with the terms of Section 10.2 (“Confidential Information”).
- Audits. With ten (10) days notification. Second Party shall have the right to —— inspect and audit the revenue records of First Party, which inspection and audit shall be conducted during regular business hours at the offices of First Party in such a manner as not to interfere with First Party’s normal activities. If such audit shows that any of First Party’s reports understated the actual due to Second Party by more than five percent (5%), then First Party shall pay to Second Party all reasonable costs and expenses which may be incurred by Second Party in conducting such audit and collecting such underpayment (including, without limitation, the fees of Second Party independent certified accountants, if any).
- Independent Contractor Relationship. First Party’s relationship with Second Party is ———————————– that of an independent contractor, and nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. First Party will not be entitled to any of the benefits which Second Party may make available to its employees, including, but not limited to, group health or life insurance, profit-sharing or retirement benefits. First Party is not authorized to make any representation, contract or commitment on behalf of Second Party unless specifically requested or authorized in writing to do so by a Second Party manager. First Party is solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of services and receipt of fees under this Agreement. First Party is solely responsible for, and must maintain adequate records of, expenses incurred in the course of performing services under this Agreement. No part of First Party’s compensation will be subject to withholding by Second Party for the payment of any social security, federal, state or any other employee payroll taxes. Second Party will regularly report amounts paid to First Party as required by law.
- Attorneys’ Fees and Costs for Breach. The prevailing Party in any action to enforce or interpret this Agreement is entitled to recover from the other Party its reasonable attorneys’ fees.
- Construction. This Agreement shall be construed as if the Parties jointly prepared it, and any uncertainty or ambiguity shall not be interpreted against any one Party.
- Modification. No oral agreement, statement, promise, undertaking, understanding, arrangement, act or omission of any Party, occurring subsequent to the date hereof may be deemed an amendment or modification of this Agreement unless reduced to writing and signed by the Parties hereto or their respective successors or assigns.
- Severability. The Parties agree that if, for any reason, a provision of this Agreement is held unenforceable by any court of competent jurisdiction, this Agreement shall be automatically conformed to the law, and otherwise this Agreement shall continue in full force and effect.
- Number. Whenever applicable within this Agreement, the singular shall include the plural and the plural shall include the singular.
- Headings. The headings of paragraphs herein are included solely for convenience of reference and shall not control the meaning or interpretation of any of the provisions of this Agreement.
- Counterparts. This Agreement may be executed in several counterparts and all counterparts so executed shall constitute one agreement binding on all Parties hereto, notwithstanding that all the Parties are not signatories to the original or the same counterpart. Facsimile signatures shall be accepted the same as an original signature. A photocopy of this Agreement may be used in any action brought to enforce or construe this Agreement.
- No Waiver. No failure to exercise and no delay in exercising any right, power or remedy under this Agreement shall impair any right, power or remedy which any Party may have, nor shall any such delay be construed to be a waiver of any such rights, powers or remedies or an acquiescence in any breach or default under this Agreement, nor shall any waiver of any breach or default of any Party be deemed a waiver of any default or breach subsequently arising.
Signature
First Party
Signature
Second Party
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