This Marketing Agreement is
entered into as of August 12, 2008 (this “
Agreement ”) by and among Regent Releasing, L.L.C. , a
Texas limited liability company (the “ Advertiser
”), and PlanetOut
Inc. , a Delaware corporation (the “ Media
Company ”).
A.
The Media Company and its subsidiaries operate a number of Internet
websites targeted at the gay, lesbian, bisexual and transgender
communities;
B.
The Advertiser and its affiliates operate a media company and wish
to pay the Media Company $6,000,000 to advertise films and other
products on the online and print platforms, publications and events
operated by the Media Company and its subsidiaries; and
C.
Concurrently with the execution of this Agreement, an affiliate of
the Advertiser, Regent Entertainment Media Inc., a Delaware
corporation (the “ Buyer ”), the Media Company
and the Media Company’s subsidiaries, LPI Media Inc., a
Delaware corporation (“ LPI ”), and SpecPub.,
Inc., a Delaware corporation (“ SPI ”), have
entered into that certain Put/Call Agreement (the “
Put/Call Agreement ”), pursuant to which the Buyer has
the right to acquire and LPI and SPI have the right to transfer
certain of the assets and liabilities of LPI and SPI.
The parties to
this Agreement, intending to be legally bound, agree as
follows:
SECTION 1.
Definitions. The
following terms shall have the corresponding meanings for the
purposes of this Agreement:
Ad.
“Ad” shall have the meaning specified in
Section 3.2 of the Agreement.
Advertiser. “Advertiser” shall have the meaning
specified in the Preamble to the Agreement.
Agreement.
“Agreement” shall have the meaning specified in the
Preamble to the Agreement.
Buyer. The
“Buyer” shall have the meaning specified in the third
Recital to the Agreement.
CPM.
“CPM” shall have the meaning specified in
Section 2.2 of the Agreement.
Expiration
Date. “Expiration Date” shall have the meaning
specified in Section 5.1 of the Agreement.
IAB.
“IAB” shall have the meaning specified in
Section 2.1 of the Agreement.
IO.
“IO” shall have the meaning specified in
Section 2.2 of the Agreement.
LPI.
“LPI” shall have the meaning specified in the third
Recital to the Agreement.
Marketing
Commitment Amount. “Marketing Commitment Amount”
shall have the meaning specified in Section 4.1 of the
Agreement.
Media
Company. The “Media Company” shall have the meaning
specified in the Preamble to the Agreement.
Promotional
Items. “Promotional Items” shall have the meaning
specified in Section 3.1(d) of the Agreement.
Put/Call
Agreement. “Put/Call Agreement” shall have the
meaning specified in the third Recital to the Agreement.
SPI.
“SPI” shall have the meaning specified in the third
Recital to the Agreement.
SECTION 2.
Advertising Agreement;
Insertion Orders; Representations
2.1 With
respect to online advertising, this Agreement is based on and
incorporates the Interactive Advertising Bureau’s (the
“ IAB ”) standard terms and conditions for
internet advertising for media buys one year or less (version 2.0)
(“ IAB’s Standard Terms and Conditions ”)
which are attached hereto as Schedule I . The
IAB’s standard terms and conditions, however, are amended as
set forth in this Agreement. In the event of any conflict or
inconsistency, this Agreement and its amendments supersede or
replace any conflicting or inconsistent IAB terms and conditions.
This Agreement also covers certain print advertising provided to
Advertiser as set forth on Schedule II attached
hereto.
2.2
Attached hereto as Schedule II are the
current details of the marketing approach to be implemented by the
Advertiser and the Media Company with the full details of the
campaign or program to be advertised, the property of the Media
Company on which such advertising will appear, the start and end
date of each such advertising, the size of the advertising and the
Cost Per Thousand impressions (“ CPM ”) or other
costs for such advertising. The marketing approach set forth on
Schedule II shall be
subject to amendment and supplemented as reasonably agreed by the
Advertiser and the Media Company. Any changes to the marketing
approach shall be designed to protect and/or enhance the print and
online environments for both the consumers and advertisers of the
properties of the Media Company and its subsidiaries. As amended
and supplemented, Schedule II shall be
deemed to constitute the insertion orders (“
IO’s ”) pursuant to which the marketing approach
shall be implemented.
2.3 For
the period from the date hereof through the Closing of the Put or
Call (each as defined in the Put/Call Agreement), the advertising
shall be placed broadly in association with the Media
Company’s, LPI’s and SPI’s online and print
platforms, publications and events. From and after the Closing of
the Put or Call, the marketing shall be placed in association with
the Media Company’s remaining online platforms and events
only.
2.4
Representations and Warranties . Each party to this
Agreement represents and warrants to the other party that
(i) such party has all necessary right, power and authority to
enter into this Agreement and to perform the acts required of it
hereunder, and (ii) the entry into this Agreement by such
party, and the performance by such party of its obligations and
duties hereunder, do not and will not violate any agreement of such
party or by which such party is bound. The Advertiser represents
and warrants to the Media Company that the Promotional Items, each
Ad and the material to which such Ad links (i) do not infringe
or misappropriate any intellectual property (including, without
limitation, trademarks and copyrights), confidentiality, publicity
or privacy rights of any third party in any jurisdiction,
(ii) are truthful and not defamatory, deceptive or misleading,
(iii) do not contain any material or element that is unlawful,
harmful, abusive, hateful, threatening, or obscene (iv) comply
with all applicable laws, including those regarding unfair
competition, anti-discrimination or false advertising and
(v) do not contain any virus, worm, trojan horse, time bomb or
similar contaminating or destructive feature. The Media Company may
review the Ad and also test the Advertiser’s URL links and,
in the Media
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Company’s
sole discretion, may remove any Ad or URLs at any time that fail to
comply with the above requirements. If an advertising agency is
entering into this Agreement on behalf of the Advertiser, such
advertising agency shall be jointly and severally responsible for
all obligations and amounts owing hereunder. Each such advertising
agency represents and warrants that it has full authority to act on
the Advertiser’s behalf. EXCEPT AS EXPRESSLY SET FORTH
HEREIN, EACH PARTY ACKNOWLEDGES AND AGREES THAT THE OTHER HAS NOT
MADE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
SECTION 3.
Amendments to IAB’s
Standard Terms and Conditions . IAB’s Standard Terms and Conditions set
forth in Schedule I are hereby
amended, clarified and supplemented as follows:
3.1
Definitions and Specialty Terms . For purposes of this IO,
the Media Company will be deemed to have fully delivered an
“impression” at the time the Advertiser’s Ad
loads on a user’s screen. For purposes of this IO, the Media
Company will be deemed to have fully delivered a
“click-through” when a user clicks on the
Advertiser’s Ad and arrives at the URL specified by the
Advertiser. The following terms and conditions apply to the
following specialty deliverables:
(a) Roadblocks . Unless otherwise specified, a
“Roadblock” identified in an IO entitles Advertiser to
100% of advertising inventory on the identified page or pages for
the date or dates specified. If no date or dates are specified, or
if the only dates specified are the flight dates, then the
Roadblock entitles Advertiser to 100% of advertisements on the
identified page or pages for a 24-hour period to be selected by the
parties’ mutual agreement.
(b) Sponsorships . Unless otherwise specified,
a “Sponsorship” identified in an IO entitles Advertiser
to a non-exclusive advertising placement on the page or pages and
of the size and type identified in such IO. If a Sponsorship is
designated a fixed placement, any impressions listed in the IO with
regard to such placement are necessarily estimates. If a
Sponsorship is specifically designated as “exclusive”
in the IO, Advertiser will be the only third-party advertiser in
Advertiser’s industry category permitted to purchase
additional Ads (in addition to the Sponsorship placement) on the
pages on which Advertiser has purchased such Sponsorship. The rates
applicable to such additional Ads will be as set forth in the IO.
Advertiser’s opportunity to be the sole third-party
advertiser in Advertiser’s industry category on such page(s),
if applicable, shall expire upon the designated end date of such
Sponsorship.
(c) Sweepstakes . Unless otherwise specified, a
“Sweepstakes” identified in the IO entitles Advertiser
to sponsor a Sweepstakes designed, hosted and administered by the
Media Company or its third-party service provider, with the
cooperation and assistance of Advertiser as necessary. For
clarification and unless otherwise agreed, Advertiser agrees to pay
for the design, development, and cost of any ads. The fee for such
Sweepstakes does not include Advertiser-sponsored impressions
promoting the Sweepstakes, which are provided for a separate fee,
at the rates as set forth in the IO. While Advertiser will be the
sole sponsor of the Sweepstakes in Advertiser’s industry
category, the Media Company reserves the right to recruit sponsors
in other industry categories. Unless otherwise agreed, Advertiser
will provide all prizes associated with the Sweepstakes.
(d) Product Sampling . The Media Company or its
approved third-party service provider will include promotional
items designated in the IO, provided by the Advertiser and approved
by the Media Company (“ Promotional Items ”) in
shipments to users of selected goods purchased through selected
Websites. The Advertiser’s payment to the Media Company will
be based upon numbers of Promotional Items shipped, according to
the records of the Media Company or the Media Company’s third
party order fulfillment service provider, which records shall be
deemed conclusive for all purposes
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hereunder. If
requested by Advertiser, the Media Company will return any
unshipped Promotional Items to Advertiser, at Advertiser’s
expense, upon termination or expiration of the campaign.
(e) Emails . Unless otherwise specified, an
“Email” identified in an IO entitles Advertiser to
exclusive advertising placement on a newsletter sent to the
customers of the Media Company who have opted-in to receive Email
communications from the Media Company and its subsidiaries. Unless
otherwise specified in an IO, Emails will be sent to the total
number of customers who have opted-in to receive the newsletters
throughout the nation. Aside from Advertiser’s advertising
placement, content of the Email is exclusively determined by the
Media Company.
(f) Events . Unless otherwise specified, an
“Event” identified on an IO entitles Advertiser to
non-exclusive participation at a live gathering of the Media
Company’s consumers in one location and on one date, for a
specified period of time. Advertiser’s participation will
consist of logo placement on any invitation and any displays
created exclusively for the Event. Imagery, including static photos
and video, may also be displayed at the Event, as pre-approved by
the Media Company. Advertiser may choose to create additional
experiences at an Event; such as celebrity appearances or product
give-aways. Any additional experiences must be pre-approved by the
Media Company and costs associated with producing these additional
experiences are the sole responsibility of Advertiser.
3.2
Provision of Advertising Materials . The Advertiser will
provide all advertising buttons, badges, banners, logos or text
links described in the IO (each, together with any hyperlinks,
text, musical works, sound recordings, motion pictures and other
audiovisual material, pictures, graphics, logos and any other
content, data or subject matter incorporated therein, in addition
to as defined below, an “ Ad ”) at least
5 days prior to scheduled publication date. The Media Company
shall not be required to publish any Ad that is not received in
accordance with such policy and applicable ad specifications, and
Advertiser shall be obligated to pay amounts due for such Ad,
whether or not such Ad is published. The Advertiser shall not
submit, and the Media Company shall not be obligated to accept, Ads
that are not readily identifiable as advertisements. The Media
Company may in its sole discretion label any Ad as an
“advertisement” for clarification. All contents of Ads
are subject to the Media Company’s prior approval in its sole
discretion. If an Ad is not received at least five (5) days
prior to scheduled publication date, then PlanetOut may elect to
enforce one of the following:
(a) Advertiser is still responsible for the media
purchased pursuant to the IO.
(b) Advertiser is still responsible for the media
purchased pursuant to the IO and the Media Company may run a Public
Service Announcement (PSA) as a replacement until the creative
is received; or
(c) Advertiser is still responsible for the media
purchased pursuant to the IO
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