AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 14, 1999
REGISTRATION NO. 333-78129
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
AMENDMENT NO. 1 TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________
NETTAXI, INC.
(Exact Name of Registrant as Specified in Its Charter)
NEVADA 7370 82-0486102
(State or Other Jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Incorporation or Classification Code Identification
Organization) Number) Number)
1696 DELL AVENUE
CAMPBELL, CALIFORNIA 95008
(408) 879-9880
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Executive Offices)
ROBERT A. ROSITANO, JR.
DEAN ROSITANO
NETTAXI, INC.
1696 DELL AVENUE
CAMPBELL, CALIFORNIA 95008
(408) 879-9880
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Co-Agents for Service)
____________________
COPY TO:
JAMES C. CHAPMAN, ESQ.
ALAN S. GUTTERMAN, ESQ.
ROMIN P. THOMSON, ESQ.
SILICON VALLEY LAW GROUP
50 WEST SAN FERNANDO STREET, SUITE 950
SAN JOSE, CALIFORNIA 95113
(408) 286-6100
____________________
<PAGE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
____________________
If any of the securities being registered on this Form are being offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act, check
the following box. [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, check the following box and list the
Securities Act Registration Statement number of the earlier effective
Registration Statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
Registration Statement number of the earlier Registration Statement for the same
offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under
the Securities Act, check the following box and list the Securities Act
Registration Statement number of the earlier Registration Statement for the same
offering. [ ]
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
____________________
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SECTION 8(a), MAY DETERMINE.
2
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth an itemization of various expenses, all of
which we will pay, in connection with the sale and distribution of the
securities being registered. All of the amounts shown are estimates, except the
SEC registration fee.
<TABLE>
<CAPTION>
<S> <C>
SEC Registration fee . . . . . . . . . . . . . . . . $ 10,502
Accounting Fees and Expenses . . . . . . . . . . . .
Legal fees Fees and Expenses . . . . . . . . . . . .
NASD (National Market System Filing Fee) . . . . . .
Miscellaneous. . . . . . . . . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . . $
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Nevada Private Corporation Law ("NPCL") provides that a corporation may
indemnify any person who was or is a party or is threatened to be made a party,
by reason of the fact that such person was an officer or director of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, to (x) any action or suit by or in the right
of the corporation against expenses, including amounts paid in settlement and
attorneys' fees, actually and reasonably incurred, in connection with the
defense or settlement believed to be in, or not opposed to, the best interests
of the corporation, except that indemnification may not be made for any claim,
issue or matter as to which such a person has been adjudged by a court of
competent jurisdiction to be liable to the corporation or for amounts paid in
settlement to the corporation and (y) any other action or suit or proceeding
against expenses, including attorneys' fees, judgments, fines and amounts paid
in settlement, actually and reasonably incurred, if he or she acted in good
faith and in a manner which he or she reasonably believed to be in, or not
opposed to, reasonable cause to believe his or her conduct was unlawful. To the
extent that a director, officer, employee or agent has been "successful on the
merits or otherwise" the corporation must indemnify such person. The articles
of incorporation or bylaws may provide that the expenses of officers and
directors incurred in defending any such action must be paid as incurred and in
advance of the final disposition of such action. The NPCL also permits the
corporation to purchase and maintain insurance on behalf of the corporation's
directors and officers against any liability arising out of their status as
such, whether or not the corporation would have the power to indemnify him
against such liability. These provisions may be sufficiently broad to indemnify
such persons for liabilities arising under the Securities Act.
3
<PAGE>
The Company's Articles of Incorporation include a provision eliminating the
personal liability of directors for breach of fiduciary duty except that such
provision will not eliminate or limit any liability which may not be so
eliminated or limited under applicable law.
The Company intends to enter into indemnification agreements with its
directors and officers substantially in the form attached to this Registration
Statement as Exhibit 10.35. These agreements provide, in general, that the
Company will indemnify such directors and officers for, and hold them harmless
from and against, any and all amounts paid in settlement or incurred by, or
assessed against, such directors and officers arising out of or in connection
with the service of such directors and officers as a director or officer of the
Company or its Affiliates (as defined therein) to the fullest extent permitted
by Nevada law.
The Company maintains liability insurance for its directors and officers
covering, subject to certain exceptions, any actual or alleged negligent act,
error, omission, misstatement, misleading statement, neglect or breach of duty
by such directors or officers, individually or collectively, in the discharge of
their duties in their capacity as directors or officers of the Company.
4
<PAGE>
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
Set forth in chronological order is information regarding shares of Common
Stock issued and options and warrants and other convertible securities granted
by the Company during the past three years. Also included is the consideration,
if any, received by the Company for such shares and options and information
relating to the section of the Securities Act of 1933, as amended (the
"Securities Act"), or rule of the Securities and Exchange Commission under which
exemption from registration was claimed.
All sales, unless otherwise noted, were made in reliance on Section 4(2) of
the Securities Act and/or Regulation D or Rule 701 promulgated under the
Securities Act and were made without general solicitation or advertising. The
purchasers were sophisticated investors with access to all relevant information
necessary to evaluate these investments, and who represented to the Company that
the shares were being acquired for investment.
Transactions described in Items (1) through (10) below refer to the
securities of Nettaxi Online Communities, Inc., a Delaware corporation
which was the predecessor entity of the filer of this Registration Statement,
and transactions described in Items (11) through (18) below refer to the
securities of Nettaxi, Inc., a Nevada corporation which is the filer of this
Registration Statement.
(1) In October, 1997, the Company issued each of Robert A. Rositano,
Jr. and Dean Rositano 1,288,044 shares for $51.00 in cash.
(2) In October, 1997, the Company entered into the Asset Purchase
Agreement with SSN Properties, LLC pursuant to which the Company issued the
aggregate amount of 2,475,066 shares of Common Stock to SSN Properties, LLC
valued at $0.396 per share. SSN Properties made a pro rata distribution of such
shares to its members in April, 1999.
(3) In November, 1997 the Company issued 88,395 shares of Common Stock
to two consultants of the Company in exchange for services performed for the
Company.
(4) In November, 1997, the Company conducted a private offering of its
Common Stock. Pursuant to that offering, a total of 506,378 shares of Common
Stock were issued in exchange for $200,500.
(5) In November 1997, the Company conducted a private offering of its
Series A Preferred Stock. Pursuant to that offering, a total of 145,400 shares
of Series A Preferred Stock were issued for total cash consideration of
$109,050. The Series A Preferred Stock was convertible on a one-for-two basis
with Common Stock. In September, 1998, the outstanding shares of Series A
Preferred Stock were converted into 734,438 shares of Common Stock.
(6) In February, 1998 the Company issued 66,297 shares of Common Stock
to each of Robert A. Rositano, Jr. and Dean Rositano in lieu of foregone salary
which was earned between October, 1997 and January, 1998.
(7) In September, 1998 the Company issued 2,792,763 shares of Common
Stock to SSN Properties, LLC pursuant to the Conversion Agreement providing for
an exchange of convertible notes payable and accrued interest. SSN Properties
made a pro rata distribution of such shares to its members in April, 1999.
5
<PAGE>
(8) In September, 1998, the Company issued 176,790 shares of Common
Stock to SSN Properties, LLC in debt conversion. SSN Properties made a pro rata
distribution of such shares to its members in April, 1999.
(9) In August and September, 1998, the Company issued 118,190 shares of
Common Stock to certain employees and consultants in consideration for services
rendered to the Company valued at $67,000.
(10) In September, 1998, the Company issued 2,399,298 shares of Common
Stock to certain officers, employees and consultants who exchanged their
warrants for shares of Common Stock via the issuance of promissory notes.
Warrants to purchase the aggregate amount of 631,394 of the shares of Common
Stock were issued in March, 1998 to six employees, two directors and two
consultants of the Company. The exercise price for the warrants was $0.0396.
Warrants to purchase the aggregate amount of 1,767,904 shares of Common Stock
were issued in August, 1998, to Robert A. Rositano, Jr. and Dean Rositano
pursuant to their Employment Agreements. The exercise price for the warrants
was $0.0396.
(11) In September 1998, the Company and its stockholders entered into a
Reorganization Agreement with Swan Valley Snowmobiles, Inc. ("Swan Valley").
Under the terms of the Reorganization Agreement, the stockholders of the Company
received approximately 2.53 shares of Common Stock of Swan Valley (representing
approximately 85% of the outstanding shares of Swan Valley immediately after the
Reorganization) and the Company became a wholly-owned subsidiary of Swan Valley.
Swan Valley changed its name to Nettaxi, Inc. and references to "the Company"
hereafter refer to Nettaxi, Inc. the filer of this Registration Statement.
(12) In September, 1998, pursuant to the terms of the Reorganization
Agreement, the Company conducted a private offering of its Common Stock.
Pursuant to that offering, a total of 1,250,000 shares of Common Stock were sold
for total cash consideration of $1,000,000.
(13) In September, 1998, the Company, pursuant to its 1998 Stock Option
Plan, issued options to purchase 280,000 shares of Common Stock to officers and
employees of the Company, with an exercise price of $0.88 and $0.80 per share,
respectively.
(14) In October, 1998, the Company issued 200,000 shares of Common
Stock to Baytree Capital Associates pursuant to the terms of a Letter Agreement
with Baytree Capital Associates for financial business consulting services.
(15) From January, 1999 to May, 1999, the Company pursuant to its 1998
Stock Option Plan, issued options to purchase 100,000 shares of Common Stock to
certain of its employees, with exercise prices ranging from $7.437 to $18.00 per
share.
(16) In March, 1999 the Company issued an option to purchase an
aggregate of 125,000 shares of Common Stock to Wall Street Trading Group
pursuant to the Common Stock Purchase Option to Purchase Common Shares of
Nettaxi. The exercise price for the Option is $8.00 per share.
6
<PAGE>
(17) On March 31, 1999, the Company issued convertible debentures in
the amount of $5,000,000 and warrants to purchase 150,000 shares of Common Stock
of the Company.
(18) In April, 1999 the Company issued an aggregate amount of 7,000,000
shares of Common Stock to the former shareholders of Plus Net, Inc. pursuant to
the Merger Agreement and Plan of Reorganization between the Company and Plus
Net.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(A) EXHIBITS
The following Exhibits are attached hereto and incorporated herein by
reference:
<TABLE>
<CAPTION>
Exhibit Number Description of Exhibit
- -------------- ------------------------------------------------------------------------------
<C> <S>
**2.1 Agreement and Plan of Reorganization dated September 24, 1998 by and
among Nettaxi Online Communities, Inc., the owners of all the outstanding
shares of Common Stock of Nettaxi Online Communities, Inc. and the
Company.
**2.2 Merger Agreement and Plan of Reorganization dated April 1, 1999 by and
between Plus Net, Inc. and the Company
**3.1 Articles of Incorporation of the Company
**3.2 Certificate of Amendment to the Articles of Incorporation of the Company
**3.3 By-Laws of the Company
**4.1 Specimen Common Stock Certificate of the Company
**4.2 See Exhibits 3.1, 3.2 and 3.3 for provisions of the Articles of Incorporation
and By-Laws of the Company defining the rights of holders of Common
Stock of the Company.
**4.3 Convertible Debenture dated March 31, 1999 in favor of RGC International
Investors, LDC
*5.1 Opinion of Silicon Valley Law Group with respect to the legality of
securities being registered
**10.1 Asset Purchase and Sale Agreement dated October 1, 1997 by and between
SSN Properties, LLC and the Company
7
<PAGE>
**10.2 Sub Lease dated September 3, 1997 by and between Execustaff and the
Company
+10.3 Master Software License Bundling and Distribution Agreement dated
November 13, 1997 between Apple Computer, Inc. and the Company
+10.4 Master Software License, Bundling and Distribution Agreement dated
March 14, 1997 between Fountain Technologies, Inc. and the Company
**10.5 Stock Option Agreement dated March 20, 1998 by and between Robert A.
Rositano, Jr. and the Company
**10.6 Stock Option Agreement dated March 20, 1998 by and between Dean
Rositano and the Company
+10.7 Web Advertising Services Agreement dated June 3, 1998 between Fly Cast
Communications Corporation and the Company
+10.8 Sales and Representation Contract dated July 7, 1998 between Michael
Weiner dba Unique Media Services and the Company
**10.9 Employment Agreement dated August 1, 1998 between Dean Rositano and
the Company
**10.10 Employment Agreement dated August 1, 1998 between Robert A. Rositano,
Jr. and the Company
**10.11 Stock Option Agreement dated August 1, 1998 by and between Robert A.
Rositano, Jr. and the Company
**10.12 Stock Option Agreement dated August 1, 1998 by and between Dean
Rositano and the Company
+10.13 Merchant Services Agreement dated August 3, 1998 by and between
eCharge Corporation and the Company
**10.14 Letter Agreement dated September 3, 1998 between Bay Tree Capital
Associates, LLC and the Company
+10.15 Conversion Agreement dated September 4, 1998 by and between SSN
Properties, LLC and the Company
+10.16 Internet Infospace Content (World Wide Web Site) Distribution Agreement
dated October 8, 1998 by and between InfoSpace.com, Inc., a Delaware
corporation and the Company
**10.17 1998 Stock Option Plan of the Company
8
<PAGE>
**10.18 Form of Stock Option Agreement for options issued pursuant to 1998 Stock
Option Plan of the Company
**10.19 Stock Option Agreement under the 1998 Stock Option Plan by and between
Dean Rositano and the Company
**10.20 Stock Option Agreement under the 1998 Stock Option Plan by and between
Robert A. Rositano, Jr. and the Company
+10.21 Agreement for Terminal Facility Co-Location Space dated January 18, 1999
between Alchemy Communications, Inc. and the Company
**10.22 Technology Licensing Agreement dated February 3, 1999 by and between
Go Hip, Inc. and the Company
**10.23 First Amendment to Technology Licensing Agreement dated as of April 1,
1999 by and between Go Hip, Inc. and the Company
+10.24 Letter Agreement dated January 15, 1999 between Babenet, Ltd. and the
Company
+10.25 Internet Services Suite Agreement dated February, 1999 between Wired
Digital, Inc., Lycos, Inc. and the Company
+10.26 License and Distribution Agreement dated March 30, 1999 by and between
Netopia, Inc. and the Company
+10.27 Website Linking and Promotion Agreement dated March 5 1999 between PI
Graphix, Inc. and the Company
**10.28 Settlement Agreement dated March 2, 1999 by and among Michael Gardner,
Bay Tree Capital Associates, LLP, Wall Street Trading Group, Bruce K.
Dorfman, Robert A. Rositano, Jr., Dean Rositano and the Company
**10.29 Common Stock Purchase Option to Purchase Common Shares of Nettaxi,
Inc. dated March 4, 1999 between Wall Street Trading Group and the
Company
**10.30 Securities Purchase Agreement dated March 31, 1999 by and among RGC
International Investors, LDC and the Company
**10.31 Stock Purchase Warrant dated March 31, 1999 by and among RGC
International Investors, LDC and the Company
**10.32 Registration Rights Agreement dated March 31, 1999 by and among RGC
International Investors, LDC and the Company
9
<PAGE>
**10.33 Oppenheimer Funds 401K Plan
**10.34 Standard Office Lease-Gross dated March 1999 by and between South Bay
Construction and Development Co. III & South Bay Construction and
Development Co. VII and the Company
*10.35 Form of Indemnification Agreement between the Company and each of its
Directors and Executive Officers
+10.36 Development Agreement dated as of December 16, 1998 between the Big
Network Inc. and the Company
**21.1 Subsidiaries of the Company
**23.1 Consent of BDO Seidman
*23.2 Consent of Silicon Valley Law Group (included in Exhibit 5.1)
**24.1 Powers of Attorney (included on signature pages to this Registration
Statement)
27.1 Financial Data Schedule
<FN>
* To be filed by amendment.
** Previously filed with the SEC.
+ Confidential treatment requested.
</TABLE>
(B) FINANCIAL STATEMENT SCHEDULES
Financial Statements Schedules are omitted because the information is
included in the Financial Statements or notes thereto.
ITEM 17. UNDERTAKINGS
(a) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions described under Item 14 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
10
<PAGE>
(b) The undersigned registrant hereby undertakes that:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any Prospectus required by section 10(a)(3) of the Securities
Act of 1933;
(ii) To reflect in the Prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually, or in the aggregate, represent a
fundamental change in the information set forth in the Registration Statement;
notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum Offering range may be reflected in the form of Prospectus
filed with the Commission pursuant to Rule 424(b) (230.424(b) of this Chapter)
if, in the aggregate, the changes in volume and price represent no more than a
20% change in the maximum aggregate Offering price set forth in the "Calculation
of Registration Fee" table in the effective Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement.
Provided, however, that paragraphs (b)(1)(i) and (b)(1)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities and Exchange of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the Offering.
(c) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
11
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has duly caused this Amendment No. 1 to the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Jose, State of California, on May 14, 1999.
NETTAXI, INC.
By: /s/ ROBERT A. ROSITANO, Jr.
- ------------------------------------
Robert A. Rositano, Jr.
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ ROBERT A. ROSITANO, JR Chief Executive Officer, May 14, 1999
- ---------------------------
Robert A. Rositano, Jr. Secretary and Director
(principal executive officer)
* President and Director May 14, 1999
- ---------------------------
Dean Rositano.
* Vice President Chief May 14, 1999
- ---------------------------
Glenn Goelz Financial Officer (principal
accounting officer)
* Director May 14, 1999
- ---------------------------
Roger Thornton
* Director May 14, 1999
- ---------------------------
Andrew Garroni
* Director May 14, 1999
- ---------------------------
Ronald Goldie
12
<PAGE>
* By executing his name hereto on May 14, 1999, Robert A. Rositano, Jr. is
signing this document on behalf of the persons indicated above pursuant to
powers of attorney duly executed by such persons and filed with the Securities
and Exchange Commission.
By: /s/ ROBERT A. ROSITANO, Jr.
- ------------------------------------
Robert A. Rositano, Jr.
(Attorney-in-Fact)
13
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT INDEX
The following Exhibits are attached hereto and incorporated herein by reference:
Exhibit Number Description of Exhibit
- -------------- ------------------------------------------------------------------------------
<C> <S>
**2.1 Agreement and Plan of Reorganization dated September 24, 1998 by and
among Nettaxi Online Communities, Inc., the owners of all the outstanding
shares of Common Stock of Nettaxi Online Communities, Inc. and the
Company.
**2.2 Merger Agreement and Plan of Reorganization dated April 1, 1999 by and
between Plus Net, Inc. and the Company
**3.1 Articles of Incorporation of the Company
**3.2 Certificate of Amendment to the Articles of Incorporation of the Company
**3.3 By-Laws of the Company
**4.1 Specimen Common Stock Certificate of the Company
**4.2 See Exhibits 3.1, 3.2 and 3.3 for provisions of the Articles of Incorporation
and By-Laws of the Company defining the rights of holders of Common
Stock of the Company.
**4.3 Convertible Debenture dated March 31, 1999 in favor of RGC International
Investors, LDC
*5.1 Opinion of Silicon Valley Law Group with respect to the legality of
securities being registered
**10.1 Asset Purchase and Sale Agreement dated October 1, 1997 by and between
SSN Properties, LLC and the Company
**10.2 Sub Lease dated September 3, 1997 by and between Execustaff and the
Company
+10.3 Master Software License Bundling and Distribution Agreement dated
November 13, 1997 between Apple Computer, Inc. and the Company
+10.4 Master Software License, Bundling and Distribution Agreement dated
March 14, 1997 between Fountain Technologies, Inc. and the Company
**10.5 Stock Option Agreement dated March 20, 1998 by and between Robert A.
Rositano, Jr. and the Company
14
<PAGE>
**10.6 Stock Option Agreement dated March 20, 1998 by and between Dean
Rositano and the Company
+10.7 Web Advertising Services Agreement dated June 3, 1998 between Fly Cast
Communications Corporation and the Company
+10.8 Sales and Representation Contract dated July 7, 1998 between Michael
Weiner dba Unique Media Services and the Company
**10.9 Employment Agreement dated August 1, 1998 between Dean Rositano and
the Company
**10.10 Employment Agreement dated August 1, 1998 between Robert A. Rositano,
Jr. and the Company
**10.11 Stock Option Agreement dated August 1, 1998 by and between Robert A.
Rositano, Jr. and the Company
**10.12 Stock Option Agreement dated August 1, 1998 by and between Dean
Rositano and the Company
+10.13 Merchant Services Agreement dated August 3, 1998 by and between
eCharge Corporation and the Company
**10.14 Letter Agreement dated September 3, 1998 between Bay Tree Capital
Associates, LLC and the Company
+10.15 Conversion Agreement dated September 4, 1998 by and between SSN
Properties, LLC and the Company
+10.16 Internet Infospace Content (World Wide Web Site) Distribution Agreement
dated October 8, 1998 by and between InfoSpace.com, Inc., a Delaware
corporation and the Company
**10.17 1998 Stock Option Plan of the Company
**10.18 Form of Stock Option Agreement for options issued pursuant to 1998 Stock
Option Plan of the Company
**10.19 Stock Option Agreement under the 1998 Stock Option Plan by and between
Dean Rositano and the Company
**10.20 Stock Option Agreement under the 1998 Stock Option Plan by and between
Robert A. Rositano, Jr. and the Company
15
<PAGE>
+10.21 Agreement for Terminal Facility Co-Location Space dated January 18, 1999
between Alchemy Communications, Inc. and the Company
**10.22 Technology Licensing Agreement dated February 3, 1999 by and between
Go Hip, Inc. and the Company
**10.23 First Amendment to Technology Licensing Agreement dated as of April 1,
1999 by and between Go Hip, Inc. and the Company
+10.24 Letter Agreement dated January 15, 1999 between Babenet, Ltd. and the
Company
+10.25 Internet Services Suite Agreement dated February, 1999 between Wired
Digital, Inc., Lycos, Inc. and the Company
+10.26 License and Distribution Agreement dated March 30, 1999 by and between
Netopia, Inc. and the Company
+10.27 Website Linking and Promotion Agreement dated March 5 1999 between PI
Graphix, Inc. and the Company
**10.28 Settlement Agreement dated March 2, 1999 by and among Michael Gardner,
Bay Tree Capital Associates, LLP, Wall Street Trading Group, Bruce K.
Dorfman, Robert A. Rositano, Jr., Dean Rositano and the Company
**10.29 Common Stock Purchase Option to Purchase Common Shares of Nettaxi,
Inc. dated March 4, 1999 between Wall Street Trading Group and the
Company
**10.30 Securities Purchase Agreement dated March 31, 1999 by and among RGC
International Investors, LDC and the Company
**10.31 Stock Purchase Warrant dated March 31, 1999 by and among RGC
International Investors, LDC and the Company
**10.32 Registration Rights Agreement dated March 31, 1999 by and among RGC
International Investors, LDC and the Company
**10.33 Oppenheimer Funds 401K Plan
**10.34 Standard Office Lease- Gross dated March 1999 by and between South Bay
Construction and Development Co. III & South Bay Construction and
Development Co. VII and the Company
*10.35 Form of Indemnification Agreement between the Company and each of its
Directors and Executive Officers
16
<PAGE>
+10.36 Development Agreement dated as of December 16, 1998 between the Big
Network Inc. and the Company
**21.1 Subsidiaries of the Company
**23.1 Consent of BDO Seidman
*23.2 Consent of Silicon Valley Law Group (included in Exhibit 5.1)
**24.1 Powers of Attorney (included on signature pages to this Registration
Statement)
27.1 Financial Data Schedule
<FN>
* To be filed by amendment.
** Previously filed with the SEC.
+ Confidential treatment requested.
</TABLE>
17
<PAGE>
MASTER SOFTWARE LICENSE, BUNDLING
AND DISTRIBUTION AGREEMENT
CONTRACT #1304
THIS MASTER SOFTWARE LICENSE, BUNDLING AND DISTRIBUTION AGREEMENT is entered
into as of November 13, 1997 ("Effective Date") between Apple Computer, Inc., a
California corporation having its principal place of business at 1 Infinite
Loop, Cupertino, CA 95014-2084 ("Apple Computer") and NETTAXI Online
Communications, Inc., a Delaware corporation having its principal place of
business at 2165 So. Bascom Avenue, Campbell, California 95008 ("Developer").
RECITALS
Apple Computer is in the business of manufacture, sale, licensing and
distribution of computer including the sale and distribution of third party
products in combination with Apple manufactured products.
Apple Computer desires the right, on its own behalf and on behalf of its
subsidiaries, to copy and/or distribute proprietary software products owned by
Developer to authorized Apple resellers and end users in combination with Apple
and/or third party computer products.
Developer desires to grant Apple Computer and its subsidiaries the non-exclusive
right to copy and/or distribution of Developer's proprietary software products,
and for the exhibits to this Agreement to define the terms and conditions
specific to each respective product of Developer.
NOW THEREFORE, Apple and Developer hereby agree as follows:
AGREEMENT
1. DEFINITIONS
1.1 "Agreement" means this Software License, Bundling and Distribution
Agreement, including all exhibits and attachments hereto.
1.2 "Apple means, collectively, Apple Computer and all Apple Computer
Subsidiaries.
1.3 "Apple Software" means any Apple labeled software product.
1.4 "Apple's Subcontractor" means an independent subcontractor(s) who
provides software reproduction, bundling and/or distribution services to Apple.
1.5 "Bundle" means the combination of (a) software products ("Soft Bundle")
or (b) software products and hardware products ("Hard Bundle") as specified in
Exhibit 1 which are to be assembled and/or packaged for sale by Apple as a unit
under this Agreement, which unit includes a Program Copy (or coupon evidencing
right
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to receive a copy) and any related Documentation.
1.6 "Confidential Information" means: (a) any information relating to the
parties' product plans, designs, costs, prices and names, finances, marketing
plans, business opportunities, personnel, research, development or know-how; (b)
any information that is designated by the disclosing party as confidential
writing or, if disclosed orally, reduced in writing and designated as
confidential within thirty (30) days; and (c) the terms and conditions of this
Agreement; provided, however, that "Confidential Information" shall not include
information that: (i) was generally available to the public at the time of
receipt from the disclosing party, or thereafter becomes generally available to
the public other than through a breach of this Agreement by the recipient party;
(ii) is known to the recipient party on a non-confidential basis prior to its
receipt from the disclosing party; (iii) is disclosed with the prior written
consent of the disclosing party; (iv) becomes known to the recipient party from
a source other than the disclosing party without breach of this Agreement by the
recipient party; (v) was required to be disclosed pursuant to law; or (vi) was
developed independently by personnel of the recipient party who had no
substantive knowledge of the disclosing party's Confidential Information at the
time of such independent development.
1.7 "Customer" means any person or entity who purchases a Bundle from Apple
or Apple's Subcontractor, whether as a Reseller or End User.
1.8 "Developer" means the individual or entity identified in the opening
paragraph of this Agreement, who is either the owner of the Program or who has
the right to enter into this Agreement on behalf of the owner by written
agreement with the owner.
1.9 "Distribution Area" means those countries or geographic regions of the
world in which Apple is authorized to distribute the Bundles as defined in
Exhibit 1.
1.10 "Documentation" means the documents or other information pertaining to
each Program, which items are to be distributed to Customers in combination with
said Program (whether in the form of printed materials or software residing on
the same media as the Program), as specified in the corresponding Exhibit 1.
1.11 "Documentation Master" means, if Apple is responsible for reproduction
of printed copies of any of the Documentation pursuant to Exhibit 2, the master
copy of such Documentation (in electronic or other form), including any
applicable artwork and/or film, to be delivered to Apple or Apple's
Subcontractor for use in such reproduction process.
1.12 "End User" means the purchase of a Bundle a) by a person for his/her
own use; or b) by an entity for its internal use.
1.13 "Hardware" means any Apple labeled hardware product.
1.14 "Program" means the most current commercially available version of each
of Developer's software programs which Apple is authorized to copy, bundle
and/or distribute under this Agreement, or any subsequent Amendment hereto.
1.15 "Program Copy" means a copy of a Program residing on the storage media
form (e.g., hard disk, CD Rom, floppy diskette) in which it is to be bundled and
distributed to the Customer, as specified in the corresponding Exhibit 1.
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1.16 "Program Master" means the golden master copy of each Program, to be
delivered to Apple by Developer in the storage media form described in the
corresponding Exhibit 2 for Apple's use in manufacture of the Program Copies.
1.17 "Reseller" means a party authorized by Apple to purchase the Bundle for
resale to End Users and/or to other authorized resellers.
1.18 "Subsidiary" means a corporation, partnership, joint venture, limited
liability company or other legal entity at least fifty-one percent (51%) of
whose outstanding shares, securities or other ownership rights representing the
right to vote for the election of directors or other managing authority are
owned or controlled directly or indirectly, by another company.
2. RIGHT TO COPY AND DISTRIBUTE
2.1 Rights Granted. Developer hereby grants to Apple a nonexclusive
---------------
license, as to each Program, to: (a) make or have made Program Copies from the
Program Master, in the media form specified in the corresponding Exhibit 1; (2)
make or have made copies of the Documentation from the Documentation Master (if
applicable, pursuant to Exhibit 2); (3) assemble the Program Copies and
corresponding Documentation in Bundles for distribution; (4) distribute the
Program Copies to Customers in the Distribution Area as part of a Bundle; and
(5) to, directly or indirectly, do all acts reasonably necessary for the
marketing, distribution, and sale of the Bundle. Additionally, Apple will have
the right to copy, use and distribute, at no cost, a reasonable number of
Program Copies of each Program, as part of its software compatibility testing
and/or its sales/marketing demonstration programs. Developer authorizes Apple
to grant (a) to Apple's Subcontractor any of the rights granted Apple by this
Section 2.1; and (b) to Apple's Resellers any of the same rights to market,
distribute and sell the Program(s) as part of a Bundle, including the right to
distribute to other Resellers.
2.2 No Obligation. Apple shall have no obligation to distribute the
--------------
Program, either as part of a bundle or a standalone unit, with any specific
Apple Hardware or Apple Software or to distribute any given number of Program
Copies.
2.3 Developer's Ownership. Developer retains all rights, title, and
----------------------
interest to: (i) each Program; (ii) Developer's service marks, trademarks
and/or trade names; and (iii) all copyrights, patent rights or trade secret
rights associated with each of the Programs and the Documentation.
2.4 Copyright and Trademark Rights. In connection with Apple's marketing
------------------------------
and distribution of the Bundle, Developer grants to Apple, Apple's
Subcontractors and Apple's Resellers the non-exclusive, non transferable right
during the term of Apple's rights of distribution under this Agreement to use
(1) all copyrighted materials contained in the Program(s) (including but not
limited to screen shots from the Program(s)), the Documentation, and any
packaging or other materials provided by Developer and (2) all trademarks
associated with the Program(s).
2.5 Limitations on Use. Apple shall not use or duplicate any Program for
------------------
any purpose other than as specified in this Agreement. Apple shall not
disassemble, decompile, reverse engineer, modify or otherwise change any part of
a Program.
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3. DEVELOPER'S RESPONSIBILITIES
3.1 Transfer of Master Copies. The Developer shall provide to Apple or
---------------------------
Apple's Subcontractor, at no cost, the Program Master and, if Apple is
responsible for reproduction of the Documentation, the Documentation Master,
both according to the Schedule set forth in the corresponding Exhibit 2.
3.2 Program Compatibility. The Developer shall verify the compatibility
----------------------
of the Program with the Apple system software version defined in the
corresponding Exhibit 2. Upon request, Developer's test methodology and a brief
summary of the test results shall be provided to Apple. Developer shall provide
to Apple, at no cost, a reasonable number of additional copies of the Program
for testing. Apple shall have the right to test each Program for compatibility
with the Apple Hardware, Apple Software and/or any third party product to be
bundled with the Program. Apple's acceptance of the Program for inclusion in
the Bundle ("Acceptance") shall be conditioned upon satisfactory completion of
all compatibility testing, as determined by Apple in its sole discretion.
3.3 Developer's Points of Contact. As set forth in Exhibit 2, Developer
------------------------------
has identified its primary contact, together with a list of its representatives
having responsibility for resolution of increasingly critical issues related to
this Agreement. In the event of any change in names of these points of contact,
Developer will immediately notify Apple of the replacement representative.
3.4 Delivery of Purchased Documentation. If printed copies of the
--------------------------------------
Documentation are to be purchased from Developer pursuant to the corresponding
Exhibit 2, upon receipt of an authorized purchase order from Apple or Apple's
Subcontractor, Developer will deliver the number of requested copies of the
Documentation to the address indicated. Documentation shall be delivered on or
before the shipment date set forth in the purchase order. In addition,
Developer will provide Apple, at no cost, with advance copies of the
Documentation according to the schedule set forth in the corresponding Exhibit2.
3.5 End User Support. Developer will provide End Users with the same
------------------
level of support normally provided to customers who purchase its Program through
Developer's standard primary distribution channels. This includes, but is not
limited to, providing Program upgrades, technical support and related materials.
Apple is under no obligation to provide any End User support or training for any
Program. All End User support requests received by Apple will be referred to
Developer.
3.6 Technical Support and Training. Developer will provide reasonable
---------------------------------
technical support and training to Apple or Apple's Subcontractor, if requested
by Apple. As set forth in Exhibit 2, Developer has identified its
representative(s) having primary responsibility for coordinating/resolving
technical support issues related to the Program. In the event that Apple elects
to participate in the resolution of an End User's technical problem, the
Developer shall provide a problem resolution/response plan to Apple within 2
working days of Apple's request.
3.7 Program Revisions. If Developer plans to revise a Program and
------------------
distribute such revised version to Developer's customers, at any time during the
term of this Agreement and for a period of ninety (90) days thereafter,
Developer will submit a summary of the intended functional Program revisions to
Apple at least ninety
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(90) days prior to the schedule release of the revision. Developer will make
the revised version of the Program available to Apple upon release of its golden
master from engineering, but in no event later than its production release date,
and under the same terms and conditions as the original versions licensed to
Apple.
4. FEES AND PAYMENT
4.1 Royalty Fees. Apple or Apple's Subcontractor will pay to Developer a
------------
royalty for each Program Copy. The royalty fee shall be the amount set forth in
the corresponding Exhibit 1 minus any applicable withholding required by the
taxing authority of the country in which the Bundle is distributed (the "Royalty
Fee"). Payment will be made either by Apple's Subcontractor based on units
manufactured and shipped into Apple's Distribution Centers or by Apple based on
units sold into the distribution channel. Apple's and Apple's Subcontractor's
royalty obligation will accrue on the date of sale to Apple's Customer; however,
royalty payments to Developer for any quarter will not be due until 45 days
after the end of that quarter, based on the applicable Quarterly Report pursuant
to Section 4.3. Developer may seek payment from Apple if Apple's subcontractor
fails to make payment under this Section 4.1.
4.2 Withholding Tax on Royalties. Developer acknowledges that if an
-------------------------------
Apple Subsidiary is required by any taxing authority in any country in which the
Bundle is distributed to pay a withholding tax on royalties paid for the
Program, the Developer will be subject to and liable for such withholding tax.
The Developer acknowledges that the Apple Subsidiary will act as withholding
agent and remit the applicable withholding tax to the applicable taxing
authority on behalf of the Developer, notwithstanding that Developer may receive
Royalty Fees directly from Apple. In such instance, the payment of the Royalty
Fee by Apple to Developer will be made by Apple as agent of the Apple
Subsidiary.
4.3 Royalty Reporting. As to each Program covered by this Agreement,
------------------
Apple or Apple's Subcontractor shall maintain complete and accurate records of
the following: (i) the number of Bundles which are either manufactured and
shipped to distribution or sold into the Channel; (ii) the number of Program
Copies which are Reconfigured pursuant to Section 4.5(a); (iii) the number of
Customer Returns pursuant to Section 4.5(b); and (iv) the amount of any
applicable withholding required by the taxing authority in the countries in
which the Bundle is distributed pursuant to Section 4.2. Within forty-five (45)
days after the close of each calendar quarter, Apple and/or Apple's
Subcontractor shall submit a report ("Quarterly Report") to the Developer
listing the above information, by each of these four categories, for the
preceding quarter.
4.4 Royalty Payments. Apple or Apple's Subcontractor shall include with
-----------------
each Quarterly Report a royalty payment in accordance with Section 4.1 and 4.5.
4.5 Royalty Credits. Apple and Apple's Subcontractor will be entitled to
---------------
receive credits against its royalty payment obligations based on reconfiguration
of Bundles and Reseller and End User returns as follows:
(a) Product Reconfiguration. Apple may, at any time and in its sole
------------------------
discretion, elect to reconfigure its inventory items by removal of the Program
Copies from existing Bundles ("Reconfiguration"). In such event, Apple or
Apple's Subcontractor shall report in its
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Quarterly Report the number of Reconfigurations during the prior quarter. No
other notice of Reconfigurations will be required to be given to Developer.
(b) Returns. Apple may at any time, in its discretion, accept the
-------
return of (opened or unopened) Bundles from Resellers and End Users ("Returns").
In such event, Apple or Apple's Subcontractor shall report on its Quarterly
Report the number of Returns during the prior quarter. No other notice of
Returns will be required to be given to Developer.
(c) Net Royalty Credits. Apple and Apple's Subcontractor will be
---------------------
entitled to receive a credit on its quarterly payment obligation equal to the
number of Reconfigurations and Customer Returns, up to a total of one hundred
(100) units in the prior quarter times the applicable Royalty Fee. If, in any
quarter, Apple does not owe the Developer a sum equal to or greater than the
total credits due as a result of Reconfigurations and/or Returns, Developer
shall pay to Apple the net credit amount within forty-five (45) days from the
date of the Quarterly Report.
(d) Expiration/Termination. Upon expiration or termination of this
----------------------
Agreement, Apple and Apple's Subcontractor will have the right to submit reports
on, and obtain royalty credits for, up to one hundred (100) units of
Reconfigurations and Returns occurring within ninety (90) days after said
expiration or termination. Developer shall pay all credits to Apple or Apple's
Subcontractor within forty-five (45) days from the date of such reports.
4.6 Right to Audit. The Developer shall have the right at its expense and
----------------
on thirty (30) days written notice, to have an independent certified public
accountant audit the records of Apple or Apple's Subcontractor to verify the
information provided in the Quarterly Reports. Records subject to audit under
this section shall extend no more than three (3) years prior to the request
date. If, as a result of such audit, an underpayment is verified Apple or
Apple's Subcontractor will rectify payment of inconsistencies or mistakes within
thirty (30) days, and, if greater than ten percent (10%) underpayment for any
reporting period is found, also reimburse Developer for the cost of the audit.
The Developer may exercise its right to audit no more than once per year unless
an underpayment of over ten percent (10%) has been discovered in the prior
audit. In such cases, the Developer shall have the right to audit once every
three months until the results of the last audit show less than a ten percent
(10%) underpayment. Audit scheduling shall be by mutual agreement between Apple
or Apple's Subcontractor and the Developer, and all audits must be completed
within five working days. Upon completion of the audit the independent
certified public accountant shall provide a copy of the report to Apple or
Apple's Subcontractor. Developer acknowledges and agrees that all such records
of Apple or Apple's Subcontractor shall be considered Confidential Information
and shall be subject to the restrictions set forth in Section 8 of this
Agreement.
4.7 Documentation Fee. If Apple or Apple's Subcontractor will purchase
------------------
hard copy Documentation from Developer pursuant to the applicable Exhibit 2,
Developer will be entitled to the fee stated therein for each hard copy of the
Documentation
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delivered by Developer pursuant to this Agreement ("Documentation Fee").
Documentation Fees will be due within forty-five (45) days of invoice.
Developer will not be entitled to any Documentation-related fees if, instead,
Apple or Apple subcontractor is responsible for the copying or hard copy
reproduction of the Documentation pursuant to the applicable Exhibit 2.
4.8 Documentation Returns. Unless otherwise noted, for a period of
----------------------
ninety (90) days after the expiration or other termination of this Agreement,
Apple or Apple's Subcontractor may return Documentation in Apple's or Apple's
Subcontractor's inventory that has been purchased from Developer. Developer
shall, within thirty (30) days refund or credit Apple or Apple's Subcontractor
an amount equal to the purchase price for such Documentation (per the
corresponding Exhibit 2) times the number of copies of such Documentation
returned.
5. REPRESENTATIONS AND WARRANTIES
5.1 Ownership. Developers represents and warrants: (i) that it is the
---------
owner of, or has obtained a license from the owner of, all right, title and
interest, including copyright, if any, in and to all preexisting images, icons,
characters, graphics, sounds, music, photographs, recordings, video, film,
animation, cartoons, illustrations, accompanying text, captions, scripts, or
related materials in each of the Program(s) and Documentation, or that the
preexisting images, icons, characters, graphics, sounds, music, photographs,
recordings, video, film, animation, cartoons, illustrations, accompanying text,
captions, scripts, or related materials in each of the Program(s) and
Documentation are within the public domain and not subject to the protections of
copyright law; (ii) that it has obtained or will obtain prior to delivery under
this Agreement, all licenses and releases required to enable Apple to exercise
the license granted in this Agreement, including without limitation, the release
of each person or organization whose name, voice, likeness, portrayal,
impersonation or performance is included in any Program or Documentation; and
(iii) that it has not previously granted and will not grant any rights in any
Program to any third party inconsistent with the rights granted to Apple herein.
5.2 Program Warranty to Apple. Developer warrants that each of the
----------------------------
Programs will perform substantially in accordance with the Documentation for one
year after delivery of the Program Master.
5.3 Program Warranty to Customer Developer shall provide the sole
-------------------------------
warranty to the Customer pertaining to the performance of each Program, which
warranty shall provide, at a minimum, that the Program is capable of
substantially performing the functions described in the Documentation. In
addition, if Apple or Apple's Subcontractor is to purchase Program Copies from
Developer rather than reproducing them from the Program Master, then Developer
shall provide the sole warranty to the Customer pertaining to the media upon
which the Program resides. Developer will incorporate this warranty or
warranties into the Program Master and/or the Documentation Master delivered to
Apple or Apple's Subcontractor (or, if Apple or Apple's Subcontractor purchases
the Documentation from Developer rather than reproducing it from the
Documentation Master, into the Documentation). In no event shall Apple be
liable to the Developer for any failure by a Customer to comply with the terms
and conditions of any end-user license agreement for the Program.
5.4 No Apple Program Warranty. Apple shall not provide any warranty
----------------------------
whatsoever
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to Customer with respect to the Program, including, without limitation any
warranty related to Program content or functionality, or any warranty against
viruses or bugs contained in the Program. In no event will Apple be responsible
to Customer for any damage caused by any Program. Apple may provide a limited
warranty on the media on which the Program Copy resides when it is Apple's or
Apple's Subcontractor responsibility to reproduce the Program Copy onto media
from the Program Master.
5.5 Replacement Copies of the Program. In the event that Apple or an
-------------------------------------
Apple authorized service provider elects to provide Customer with a replacement
for a defective or damaged Program Copy, no additional fee will be due Developer
for the replacement copy or the related Documentation.
6. INDEMNIFICATION
6.1 Proprietary Rights Indemnity. Developer agrees to defend, indemnify
-----------------------------
and hold harmless Apple and Apple's affiliates, directors, officers, employees,
agents and contractors from any and all losses, damages, liabilities, costs,
expenses (including reasonable attorney's fees), judgments or settlement amounts
arising out of or in connection with any claim that the marketing, sale or use
of a Program infringes any patent, copyright, trademark, trade secret, privacy
right, right of publicity or other proprietary right of a third party.
6.2 Duty to Correct. If any Program becomes or is likely to become the
-----------------
subject of a claim or action covered by Section 6.1 Developer will, at its
expense, either: (i) procure for Apple the past right to make, use and sell and
the future right to continue to make, use and sell the Program or (ii) replace
or modify the Program to make it non-infringing, provided that the same function
is performed by the replacement or modified Program to Apple's satisfaction. If
Developer reasonably believes that the past and future rights to continue to
make, use and sell cannot be procured and the Program cannot be replaced or
modified at reasonable expense, Developer may discontinue the Program by notice
to Apple, whereupon Apple will cease further marketing and distribution of that
Program and the Agreement will be terminated partially as to that Program.
6.3 General Indemnity. Developer agrees to defend, indemnify and hold
------------------
harmless Apple, and Apple's affiliates, directors, officers, employees, agents
and contractors, from and against any and all losses, damages, liabilities,
costs, expenses (including costs and reasonable fees of attorneys and other
professionals), judgments or settlement amounts arising out of or in connection
with a claim that any of the Program(s) caused injury or damage to persons or
property, or a claim that any Program failed to perform as represented or was
defective.
7. LIMITATION OF LIABILITY
EXCEPT AS SPECIFICALLY PROVIDED HEREIN, IN NO EVENT SHALL EITHER PARTY BE
LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR
RELATING TO BREACH OR FAILURE TO PERFORM UNDER THIS AGREEMENT, EVEN IF THAT
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Apple's total
liability (i.e., the total liability of Apple Computer and all Apple
subsidiaries) for all damages, losses and causes of action, whether in contract,
tort (including negligence) or otherwise, shall in no event exceed the
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amount paid by Apple (i.e., Apple Computer and all Apple subsidiaries) to
Developer pursuant to this Agreement.
8. CONFIDENTIALITY
8.1 Disclosure: Standard of Care. The parties acknowledge that, in the
------------------------------
course of performance of their obligations under this Agreement, each party may
disclose Confidential Information to the other. Each party will protect the
other's Confidential Information from unauthorized dissemination and use with
the same degree of care that each such party uses to protect and safeguard its
own like information, but not less than the degree of care that would be
exercised by a prudent person given the sensitivity and strategic value of such
Confidential Information. Confidential Information shall be disclosed only to
the employees of the recipient who have a "need to know" and who have executed
an internal nondisclosure agreement at least as restrictive as the terms of this
Agreement. Developer shall not disclose any Confidential Information to any
third party without first obtaining Apple's written consent to such disclosure.
8.2 No Warranties, Reproductions or Liability. In furnishing any
---------------------------------------------
Confidential Information hereunder, Apple makes no warranty, guarantee or
representation, either express or implied (a) as to the adequacy, accuracy,
sufficiency or freedom from defect of such Confidential Information, or (b) that
the use or reproduction of any Confidential Information received hereunder shall
be free from any patent, trade secret or copyright infringement.
9. TERM AND TERMINATION
9.1 Term. This Agreement shall commence on the Effective Date, shall
----
continue in full force and effect for a period of REDACTED, and shall be
automatically renewed thereafter for successive REDACTED periods unless
notice of intent not to renew is received by either party at least REDACTED
days prior to the commencement of any subsequent term.
9.2 Termination Without Cause. Apple shall have the right to terminate
---------------------------
this Agreement at will, with or without cause, upon thirty (30) days written
notice.
9.3 Termination For Cause. Either party will have the right to terminate
---------------------
this Agreement immediately upon written notice at any time if:
(a) The other party is in material breach of any term, condition or
covenant of this Agreement other than those contained in Section 8.1 and fails
to cure that breach within thirty (30) days after written notice of such breach;
(b) The other party is in material breach of any term, condition or
covenant of this Agreement contained in Section 8.1; or
(c) The other party: (i) becomes insolvent; (ii) fails to pay its
debts or perform its obligations in the ordinary course or business as they
mature; or (iii) makes an assignment for the benefit of creditors.
9.4 Archiving/Destruction of Program Master Copies. Upon expiration or
------------------------------------------------
termination of this Agreement, Apple or, if applicable, Apple's Subcontractor,
shall archive or destroy each Program Master and, if applicable, each
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Documentation Master received from Developer.
9.5 Right to Distribute After Termination. Upon expiration or
-----------------------------------------
termination other than for cause of the Agreement and subject to payment
--
obligations in Section 4, Apple and Apple's Subcontractor shall continue to have
the right to (a) distribute Program Copies of the Program(s) until the end of
the product life cycle of all Bundles current at the time of termination or
expiration; and (b) distribute all Bundles in inventory until such bundles are
exhausted.
10. GENERAL TERMS
10.1 Nonexclusivity. Nothing in this Agreement shall prevent either
--------------
party from entering into a similar agreement with any other party. This
Agreement shall not be construed to restrict either party from engaging in any
activities with respect to the other party's competitors' products or services.
10.2 Relationship of the Parties. In all matters relating to this
------------------------------
Agreement, Apple is an independent contractor. Neither party will represent
that it has any authority to assume or create any obligation, express or
implied, on behalf of the other party. Nothing stated in this Agreement shall
be construed as constituting Apple and Developer as partners or joint venturers,
or as creating the relationship of employer and employee, principal and agent,
master and servant, or licensor and licensee between Apple and Developer.
10.3 No Assignment. This Agreement is not assignable by either party
--------------
without the prior written consent of the other party. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties, their
successors, and permitted assigns.
10.4 Notice. All notices sent to Apple shall be sent to the following
------
address:
Apple Computer, Inc.
One Infinite Loop
M/S 35-SC
Cupertino, CA 95014
ATTN: Susan Priore
Software Business Management
And copied to the following address:
Apple Computer, Inc.
900 E. Hamilton Ave.
M/S 73LG
Campbell, CA 95009
ATTN: LAW DEPARTMENT
10.5 Governing Law/Venue. This Agreement shall be governed by and
--------------------
construed in accordance with the laws of the State of California, except that
body of law known as Conflicts of Law. All actions or proceedings arising
directly or indirectly between the parties, other than those for injunctive
relief, shall be litigated in courts located within the County of Santa Clara,
California. Developer consents to the jurisdiction thereof and agrees not to
disturb such choice of forum. If Developer is not a resident of California,
Developer waives the personal service of any and all process upon it, and agrees
that all such service
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or process may be made by certified or registered mail, return receipt
requested, addressed to Developer.
10.6 Severability. In the event that any of the provisions of this
------------
Agreement shall be held by a court or other tribunal of competent jurisdiction
to be invalid or unenforceable, the remaining portions of this Agreement shall
remain in full force and effect and shall be construed so as to best effectuate
the intention of the parties in executing it.
10.7 No Waiver Failure by either party to enforce any provision of this
----------
Agreement shall not be deemed a waiver of the right to thereafter enforce that
or any other provision of this Agreement.
10.8 Survival. Any obligations which either expressly or by their nature
--------
are to continue after the termination or expiration of this Agreement shall
survive and remain in effect.
10.9 Modification. Any modifications of this Agreement must be in
------------
writing and signed by both parties hereto.
10.10 Force Majeure. Neither party shall be liable for any failure or
--------------
delay in the performance of an obligation hereunder on account of strikes,
riots, fires, explosions, acts of God, war, governmental action, or any other
cause which is beyond the reasonable control of such party.
10.11 Entire Agreement. This Agreement constitutes the entire agreement
-----------------
between the parties with respect to the subject matter hereof, and any and all
written or oral Agreements heretofore existing between the parties are expressly
canceled. Developer acknowledges that it is not entering this Agreement on the
basis of any representations not expressly contained herein.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
NETTAXI ONLINE APPLE COMPUTER, INC.
COMMUNICATIONS, INC.
BY: BY:
NAME: NAME:
TITLE: TITLE:
DATE: DATE:
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EXHIBIT 1
PRODUCT DESCRIPTION, PRODUCT PRICING AND DISTRIBUTION
Program Name/Version Price Per Copy
- --------------------- ----------------
Internet the City V1.0 REDACTED
For Macintosh (2 CD's)
Documentation
- -------------
Registration Card -0-
Software License Agreement
User Manual
Language Versions:
- -------------------
U.S. English
Customers:
- ----------
All Apple Customers
Distribution Area:
- -------------------
REDACTED
Media Type(s): ___ Floppy X CD ___ Zip ______ Other
---
Other Terms:
- -------------
REDACTED
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EXHIBIT 2
DEVELOPER DELIVERABLES
Delivery
Program Name/Version Deliverables Schedule
- --------------------- ------------ --------
Internet the City V1.0 Compatibility Testing Complete 11/13/97
Program Copies for Testing 11/14/97
Program Master 11/14/97
Documentation Master 11/14/97
If applicable
Hard Copy Documentation (#_____) N/A
If applicable
THE PROGRAM MUST BE COMPATIBLE WITH THE FOLLOWING:
APPLE'S SYSTEM SOFTWARE VERSION 8.0 AND 8.1
Developer Contacts
- -------------------
Primary Contact: Bob Rositano, 408-879-9880, [email protected]
---------------
Escalation Contact(s):
Developer's Technical Representative
- --------------------------------------
Primary Technical Support Representative:
Brian Stroh, 888-879-9880, [email protected]
13
<PAGE>
SMITH & ASSOCIATES
Attorneys at Law
Eighteenth Floor
1901 Avenue of the Stars
Los Angeles, California 90067
Telephone (310) 277-1250
Facsimile (310) 286-1816
Apple Computer
Susan Prior
Re: "Internet the City" CD-ROM
Date: 11/11/97
Dear Susan:
We understand the current situation concerning Apple's current contract with
Simply Interactive, Inc. and are conveying to you in writing what has transpired
over the course of the last 60 days.
Simply Interactive, Inc. (the Company) was acquired as of (August 6, 1997)
pursuant to default provisions entered into between Simply Interactive, Inc. and
SSN properties (a California Corporation) all assets, product, contracts, and
intellectual property rights then became the assets of SSN properties.
During the course of this transaction SSN entered into an agreement to then
sell, assign, grant and convey all property/contract rights to NETTAXI Online
Communities, Inc. (a Delaware Corporation).
The conveyance and transfer of these assets includes "Internet the City" CD-ROM
software, and any excising contracts relating to the software that were
currently established and held by Simply Interactive, Inc. "re: Apple Computer
Contract."
As of November 1, SSN properties has transferred and conveyed all property,
software, and contract rights to NETTAXI Online Communities, Inc. From this day
forward NETTAXI at its sole discretion may amend, transfer, or establish new
contracts/relationships with any and all vendors relating to Simply Interactive,
Inc. or the "Internet the City" CD-ROM software.
NETTAXI is in good standing and is a Delaware Corporation. Current officers of
the company are:
Robert A. Rositano Jr. Chairman/CEO Company Address:
Dean Rositano President/COO 2165 S. Bascom Ave.
Campbell, CA 95008
888 879 9880
Customer Service Contact: Brian Stroh 408 879 9880
Should you require any further information or documentation please advise the
undersigned and it will be forthcoming.
Very truly yours,
/S/ John Holt Smith
-----------------
John Holt Smith
<PAGE>
S I M P L Y I N T E R A C T I V E.
MASTER SOFTWARE LICENSE, BUNDLING
AND DISTRIBUTION AGREEMENT
CONTRACT # 21997
THIS MASTER SOFTWARE LICENSE, BUNDLING AND DISTPJBUTION AGREEMENT is entered
into as of March 14,1997 ("Effective Date") between Simply Interactive, Inc.
("SII"), a California corporation having its principal place of business at 650
Saratoga Avenue, San Jose, CA 95129 ("DEVELOPER") and FOUNTAIN TECHNOLOGIES,
INC, ("FOUNTAIN"), having its principal place of business at 3 Riverview Drive,
Somerset, NJ 0887) C'REPSELLER").
RECITALS
RESELLER is in the business of manufacture, sale, licensing and distributing of
computer software products, including the sale and distribution of third party
products.
RESELLER desires the right, on its own behalf and on behalf of subsidiaries, to
reproduce and/or distribute proprietary software products owned by DEVELOPER
DEVELOPER desires to grant RESELLER and its subsidiaries the non-exclusive right
to reproduce and/or distribute its proprietary software products, and for the
exhibits to this Agreement to define the terms and conditions specific to each
respective product of DEVELOPER.
NOW THEREFORE, SII and FOUNTAIN hereby agree as follows:
AGREEMENT
1. DEFINITIONS
1.1 "Agreement"means this Software License, Bundling and Distribution
-----------
Agreement, including all exhibits and attachments hereto.
1.2 "SII" means, collectively, Simply Interactive and all Simply
-----
Interactive Subsidiaries.
1.3 "Hardware" means any RESELLER labeled hardware product.
----------
1.4 "SII's Subcontractor" means an independent subcontractor(s) who
----------------------
provides software reproduction, bundling and/or distribution services to S11,
1.5 "Bundle" means the combination of all hardware and software
--------
products which are to be assembled and/or packaged for sale by RESELLER as a
unit under, this Agreement which
1
<PAGE>
unit includes a Program Copy (or coupon evidencing right to receive a copy) of
each Program and any related Documentation.
1.6 "Confidential Information" means: (a) any information relating to
--------------------------
SII's product plans, designs, costs, prices and names, finances, marketing
plans, business opportunities, personnel, research, development or know-how; (b)
any information that is designated by the disclosing party as confidential in
writing or, if disclosed orally, reduced in writing and designated as
confidential within thirty (30) days; and (c) the terms and conditions of this
Agreement; provided, however that "Confidential Information" shall not include
information that: (i) was generally available to the public at the time of
receipt from the disclosing party, or thereafter becomes generally available to
the public other than through a breach of this Agreement by the recipient party;
(ii) is known to the recipient party on a non-confidential basis prior to its
receipt from the disclosing party; (iii) is disclosed with the prior written
consent of the disclosing party; (iv) becomes known to the recipient party from
a source other than the disclosing party without breach of this Agreement by the
recipient party; (v) was required to be disclosed pursuant to law; or (vi) was
developed independently by personnel of the recipient party who had no
substantive knowledge of the disclosing party's Confidential Information at the
time of such independent development.
1.7 "Customer" means any person or entity who purchases a Bundle from
----------
Reseller or Reseller's Subcontractor.
1.8 "Developer" means the individual or entity identified in the
-----------
opening paragraph of this Agreement, who is either the owner of the Program or
who has the right to enter into this Agreement on behalf of the owner by written
agreement with the owner.
1.9 "End User" means any person or entity who purchases a Bundle for
-----------
his or her own use or, if an entity, for its internal use, rather than for
purpose of resale.
1. 10 "Distribution Area" means those countries or geographic regions of
--------------------
the world in which Reseller is authorized to distribute the Bundles as defined
in Exhibit 1.
1.11 "Documentation" means the documents or other information
---------------
pertaining to each Program, which items are to be distributed to Customers in
combination with said Program (whether in the form of printed materials or
software residing on the same media as the Program), as specified in the
corresponding Exhibit 1.
1 12 "Documentation Master" means Reseller is responsible for
----------------------
reproduction of printed copies of any of the Documentation pursuant to Exhibit
2, the master copy of such Documentation (in electronic or other form),
including any applicable artwork and/or film, will be delivered to Reseller or
Reseller's Subcontractor for use in such reproduction process.
2
<PAGE>
1. 13 "Program Master" means the golden master copy of each Program,
----------------
to be delivered to Reseller by S11 in the storage media form described in the
corresponding Exhibit 2 for Resellers use in manufacture of the Program Copies.
1. 14 "Program" means the most current commercially available version
---------
of each of SIPS software programs which Reseller is authorized to copy, bundle
and/or distribute under this Agreement, or any subsequent Amendment hereto.
1. 15 "Program Copy" means a copy of a Program residing on the storage
--------------
media form (e.g.-, hard disk, CD Rom, floppy diskette) in which it is to be
bundled and distributed to the Customer, as specified in the corresponding
Exhibit 1.
1. 16 "Reseller" means a party authorized by SII to purchase the Bundle
---------
for resale to end users and/or to other authorized Resellers.
1.17 "Subsidiary" means a corporation, partnership, joint venture,
------------
limited liability company or other legal entity at least fifty-one percent (51%)
of whose outstanding shares, securities or other ownership rights representing
the right to vote for the election of directors or other managing authority are
owned or controlled, directly or indirectly, by another company.
2. RIGHT TO COPY AND DISTRIBUTE
2.1 Rights Granted. SII hereby grants to Reseller a nonexclusive
---------------
license as to each Program, to: (a) make or have made Program Copies from the
Program Master, in the media form specified in the corresponding Exhibit 1; (b)
make or have made copies of the Documentation from the Documentation Master, (if
applicable) pursuant to Exhibit 2; (c) assemble the Program Copies and
corresponding Documentation in Bundles for distribution; (d) distribute the
Program Copies to Customers in the Distribution Area as part of a Bundle; and
(e) to, directly or indirectly, do all acts reasonably necessary for the
marketing, distribution, and sale of the Bundle. S11 authorizes Reseller to
grant: (a) Reseller's Subcontractor any of the rights granted Reseller by this
Section 2.1 ; and (b) Reseller's Subcontractor any of the same rights to market,
distribute and sell the Program(s) as part of a Bundle, including the right to
distribute and sell the Program(s) as part of a Bundle, including the right to
distribute to other Resellers.
2.2 Developer's Ownership. SII retains all rights, title, and interest
----------------------
to: (i) each Program; (ii) SII's service marks, trademarks and/or trade names;
and (iii) all copyrights, patent rights or trade secret rights associated with
each of the Programs and the Documentation.
2.3 Copyright and Trademark Rights. In connection with Resellers
---------------------------------
marketing and distribution of the Bundle, SII grants to Reseller, and to
Resellers Subcontractors, the non-exclusive, non transferable right during the
term of Resellers Rights of Distribution under this Agreement to use (a) all
copyrighted materials contained in the Programs(s) (including but not limited to
screen shots from the Program(s)), the Documentation, and any packaging or other
materials provided by SII and (b) all trademarks associated with the Program(s).
3
<PAGE>
2.4 Limitations on Use. Reseller shall not use or duplicate any Program
-------------------
for any purpose other than as specified in this Agreement. Reseller shall not
disassemble, decompile, reverse engineer, modify or otherwise change any part
of a Program.
3. DEVELOPER'S RESPONSIBILITY
3.1 Transfer of Master Copies, SII shall provide to Reseller or
-----------------------------
Reseller's Subcontractor, at no cost, the Program Master and the Documentation
Master, both according to the Schedule set for-the in the corresponding Exhibit
2.
3.2 Program Compatibility. SII shall verify the compatibility of the
-----------------------
Program with the Resellers system software revision defined in the corresponding
Exhibit 2. Upon request, SII's test methodology and a brief summary of the test
results shall be provided to Reseller. SII shall provide to Reseller, at no
cost, a reasonable number of additional copies of the Program for testing.
Reseller shall have the right to test each Program for compatibility with
Resellers Hardware, Resellers Software and/or any third party product to be
bundled with the Program.
3.3 SII's Points of Contact. As set forth in Exhibit 2, SII has
-------------------------
identified its primary contact, together with a list of its representatives
having responsibility for resolution of increasingly critical issues related to
this Agreement. In the event of any change in names of the" points of contact,
SII will immediately notify Reseller of the replacement representative.
4. FEES AND PAYMENTS
4.1 Royalty Fees. Reseller or Reseller's Subcontractor will pay to SII
-------------
the Royalty Fee in the amount set forth in the corresponding Exhibit I ("the
Royalty Fee") for each Program Copy. Payment will be made by Reseller based on
units sold into the channel. Resellers Royalty obligation will accrue on the
date of sale into the channel. However, Royalty Payments to SII for any quarter
will not be due until thirty (30) days after the end of that quarter, based on
the applicable Quarterly Report pursuant to Section 4.2.
4.2 Royalty Reporting. As to each Program covered by this Agreement,
-------------------
Reseller shall maintain complete and accurate records of the following: (i) the
number of Bundles containing the Program Copies which are either, manufactured
and shipped to distribution or sold into the Channel, (ii) the number of
Program Copies which are reconfigured pursuant to Section 4-4(a); and (iii) the
number of Customer Returns pursuant to Section 4.4(b) At the end of each
calendar quarter, Reseller shall submit a report ("Monthly Report") to SII
listing the above information, by each of these three (3) categories, for the
preceding month.
4
<PAGE>
4.3 Royalty Payments. Reseller shall included with each Royalty
------------------
Payment, a quarterly report summarizing the three (3) previous calendar months
in accordance with Section 4.1, 4.2 and 4.4.
4.4 Expiration/Termination. Upon expiration or termination of this
-----------------------
Agreement, Reseller will have the right to submit reports on, and obtain royalty
credits for, up to one hundred (100) units of Reconfigurations and Returns
occurring within sixty (60) days after said expiration or termination.
4.5 Right to Audit. SII shall have the right, at its expense and on
----------------
thirty (30) days written notice, to have an independent certified public
accountant audit the records of Reseller to verify the information provided in
the Monthly and Quarterly Reports. Records subject to audit under this section
shall extend no more than one (1) year prior to the request date. If, as a
result of such audit, an underpayment is verified, Reseller will rectify payment
of inconsistencies or mistakes within thirty (30) days, and, if greater than
five percent (5%) underpayment for any reporting period is found, also reimburse
SII for the cost of the audit. SII may exercise its right to audit no more than
once per year unless an underpayment of over five percent (5%) has been
discovered in the prior audit. In such cases, the SII shall have the right to
audit once every three months until the results of the last audit show less than
a five percent (5%) underpayment. Audit scheduling shall be by mutual agreement
between SU and the Reseller, and all audits must be completed within five
working days. Upon completion of the audit, the independent certified public
accountant shall provide a copy of the report to SII and the Reseller. SII
acknowledges and agrees that all such records of Reseller shall be considered
Confidential Information and shall be subject to the restrictions set forth in
Section 7 of this Agreement. The CPA shall execute and observe the terms of this
Agreement.
5. REPRESENTATIONS AND WARRANTIES
5.1 Ownership. SII represents and warrants: (i) that it is the owner
----------
of, or has obtained a license from the owner of, all right, title and interest,
including copyright, if any, in and to all preexisting images, icons,
characters, graphics, sounds, music, photographs, recordings, video, film,
animation, cartoons, illustrations, accompanying text, captions, scripts, or
related materials in each of the Program(s); (ii) that it has obtained or will
obtain prior to delivery under this Agreement, all licenses and releases
required to enable Reseller to exercise the license granted in this Agreement,
including without limitation, the release of each person or organization whose
name, voice, likeness, portrayal, impersonation or performance is included in
any Program ' and (iii) that it has not previously granted and will not grant
any rights in any Program to any third party inconsistent with the rights
granted to Reseller herein.
5.2 Program Warranty SII warrants that each of the Programs will
-----------------
perform substantially in accordance with the Documentation for one year after
delivery of the Program Master.
5
<PAGE>
5.3 Program Warranty to Customer. SII shall provide the sole warranty
-----------------------------
to the Customer pertaining to the performance of each Program, which warranty
shall provide, at a minimum, that the Program is capable of substantially
performing the functions described in the end user Documentation.
5.4 Replacement Copies of the Program. In the event that Reseller or
----------------------------------
an authorized service provider elects to provide Customer with a replacement for
a defective or damaged Program Copy from a Bundle, no additional fee will be due
SII for the replacement copy of the related Documentation.
6. INDEMNIFICATION
6.1 Proprietary Rights Indemnity. SII agrees to defend, indemnify and
-----------------------------
hold harmless Reseller and Reseller's affiliates, directors, officers,
employees, agents and contractors from any and all losses, damages, liabilities,
costs, expenses (including reasonable attorney's fees), judgments or settlement
amounts arising out of or in connection with any claim that the' marketing, sale
or use of a Program infringes any patent, copyright, trademark, trade secret,
privacy right, right of publicity or other proprietary right of a third party.
6.2 General Indemnity. SII agrees to defend, indemnify and hold
-------------------
harmless Reseller, and Reseller's affiliates, directors, officers, employees,
agents and contractors, from and against any and all losses, damages,
liabilities, costs, expenses (including costs and reasonable fees of attorneys
and other professionals), judgments or settlement amounts arising out of or in
connection with a claim that any of the Program(s) caused injury or damage to
persons or property, or a claim that any Program failed to perform as
represented or was defective.
7. CONFIDENTIALITY
7.1 Disclosure; Standard of Care. The parties acknowledge that, in the
------------------------------
course of performance of their obligations under this Agreement, each party may
disclose Confidential Information to the other. Each party will protect the
other's Confidential Information from unauthorized dissemination and use with
the same degree of care that each such party uses to protect and safeguard its
own like information, but not less than the degree of care that would be
exercised by a prudent person given the sensitive and strategic value of such
Confidential Information, Confidential Information shall be disclosed only to
the employees of the recipient who have a "need to know" and who have executed
an internal nondisclosure agreement at least as restrictive as the terms of this
Agreement. Reseller shall not disclose any Confidential Information to any third
party without first obtaining SII's written consent to such disclosures.
7.2 No Warranties, Representations or Liability. In furnishing any
------------------------------------------------
Confidential Information hereunder, SII makes no warranty, guarantee or
representation, either express or implied (a) as to the adequacy, accuracy,
sufficiency or freedom from defect of such Confidential
6
<PAGE>
Information. or (b) that the use or reproduction of any Confidential Information
received hereunder shall be free from any patent, trade secret or copyright
infringement.
8. TERM AND TERMINATION
8.1 Term. This Agreement shall commence on the Effective Date, shall
-----
continue in full force and effect for a period of REDACTED, and shall be
automatically renewed thereafter for successive REDACTED periods unless
notice of intent not to renew is received by either party at least ninety (90)
days prior to the commencement of any subsequent term.
8.2 Termination Without Cause. SII shall have the right to terminate
----------------------------
this Agreement at will, with or without cause, upon thirty (30) days written
notice.
8.3 Termination For Cause. Either party will have the right to terminate
------------------------
this Agreement immediately upon written notice at any time if:
(a) The other party is in material breach of any term, condition
covenant of this Agreement other than those contained in Section 7 and fails to
cure that breach within thirty ('30) days after written notice of such breach;
(b) The other party is in material breach of any term, condition
or covenant of this Agreement contained in Section 7; or
(c) The other party; (i) becomes insolvent; (ii) fails to pay its
debts or perform its obligations in the ordinary course or business as they
mature; or (iii) makes an assignment for the benefit of creditors.
8.4 Archiving/Destruction of Program Master Copies. Upon expiration or
-----------------------------------------------
termination of this Agreement, Reseller or if applicable, Reseller's
Subcontractor, shall archive or destroy each Program Master and, if applicable,
each Documentation Master received from SII.
9. GENERAL TERMS
9.1 Nonexclusivity. Nothing in this Agreement shall prevent either
---------------
party from entering into a similar agreement with any other party. This
Agreement shall not be construed to restrict either party from engaging in any
activities with respect to the other party's competitors' products or services.
9.2 Relationship of the Parties. In all matters relating to this
------------------------------
Agreement, SII is an independent contractor. Neither party will represent that
it has any authority to assume or create any obligations, express or implied, on
behalf of the other party. Nothing stated in this Agreement shall be construed
as constituting Reseller and SII as partners or joint ventures, or as creating
the relationship of employer and employee, principal and agent, master and
servant, or licenser and licensee between Reseller and SII.
7
<PAGE>
9.3 No Assignment. This Agreement is not assignable by either party
--------------
without the prior written consent of the other party. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties, their
successors, and permitted assigns.
9.4 Notice. All notices sent to SII shall be sent to the following
------
addresses:
Simply Interactive, Inc. Fountain Technologies, Inc.
650 Saratoga Avenue 3 Riverview Drive
San Jose, CA 95129 Somerset, NJ 08873
ATTN: LEN FARACE ATTN: JERRY SILVERMAN
CONTROLLER
and copies to the following addresses:
Simply Interactive, Inc.
650 Saratoga Avenue
San Jose, CA 95129
ATTN: GLENN GOELZ
9.5 Governing Law/Venue. This Agreement shall be governed by and
---------------------
construed in accordance with the Laws of the State of California, except that
body of law known as Conflicts of Law. All actions or proceedings arising
directly or indirectly between the parties, other than those for injunctive
relief, shall be litigated in courts located within the County of Santa Clara,
California. Reseller consents to the jurisdiction thereof and agrees not to
disturb such choice of forum. If Reseller is not a resident of California,
Reseller waives the personal service of any and all process upon it, and agrees
that all such service or process may be made by certified or registered mail,
return receipt requested, addressed to Reseller.
9.6 Severability. In the event that any of the provisions of this
------------
Agreement shall be held by a court or other tribunal of competent jurisdiction
to be invalid or unenforceable, the remaining provision of this Agreement shall
remain in full force and effe2t and shall be construed so as to best effectuate
the intention of the parties in executing it.
9.7 No Waiver. Failure by either party to enforce any provision of
----------
this Agreement shall not be deemed a waiver of the right to thereafter enforce
that or any other provision of this Agreement.
9.8 Survival.Any obligations which either expressly or by their nature
---------
are to continue after the termination or expiration of this Agreement shall
survive and remain in effect
8
<PAGE>
9.9 Modification. Any modifications of this Agreement must be in
-------------
writing and signed by both parties hereto.
9.10 Force Majeure. Neither party shall be liable for any failure or
--------------
delay in the performance of an obligation hereunder on account of strikes,
riots, fires, explosions, acts of God, war, governmental action, or any other
cause which is beyond the reasonable control of such party.
9.11 Entire Agreement. This Agreement constitutes the entire agreement
-----------------
between the parties with respect to the subject matter hereof, and any and all
written or oral Agreements heretofore existing between the parties are expressly
canceled. SII acknowledges that it is not entering this Agreement on the basis
of any representations not expressly contained herein.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
SIMPLY INTERACTIVE FOUNTAIN TECHNOLOGIES, INC.
BY: Robert A. Rositano Jr. BY: Steven B Marker
NAME: Robert A. Rositano Jr. NAME: Steven B Marker
TITLE: EVD /S/ Steven B Marker
----------------------
DATE: 3/14/97 DATE: 4/17/97
9
<PAGE>
EXHIBIT I
PRODUCT DESCRIPTION, PRODUCT PRICING AND DISTRIBUTION
Program NameNersion: Price Per Copy
--------------------- ----------------
Internet the City - V 2 REDACTED
1 CD for PC/Win95
Documentation:
--------------
Registration Card
End User License
User Manual (in electronic form)
Language Versions:
-------------------
English
Customers:
----------
All FOUNTAIN Customers
Distribution Area:
-------------------
REDACTED
10
<PAGE>
EXHIBIT 2
DEVELOPER DELIVERABLES
Program Name/Version Deliverables Delivery Schedule
- --------------------- ------------ ------------------
Internet the City - V 2 Compatibility* Testing Complete Upon Signature
of Contract by both
Program Copies for Testing Parties.
Program Master (I GM)
Documentation Master
CD Silk Screens
Hard Copy Documentation
Samples
Developer Contacts
- -------------------
Primary Contact: Len Farace (408) 260-6600
Escalation Contact: Glenn Goelz (408) 260-6589
Reseller Contacts
- ------------------
Primary Contact: Fountain Technologies
Stephen Smith (908) 764-5680
Fountain Technologies
Debbie Sinowell (908) 563-4800 x 1311
50 Randolph Road
Somerset, NJ 08873
11
<PAGE>
Dear Neil:
We understand the current situation concerning Fountain Technologies current
contract with Simply Interactive, Inc. and are conveying to you in writing what
has transpired.
Simply Interactive, Inc. (the Company) was acquired as of (August 6, 1997)
pursuant to default provisions entered into between Simply Interactive, Inc. and
SSN properties (a California Corporation) all assets, product, contracts, and
intellectual property rights then became the assets of SSN properties.
During the course of this transaction SSN entered into an agreement to then
sell, assign, grant and convey all property / contract rights to NETTATI Online
Communities, Inc. (a Delaware Corporation.) UNDER THE TERMS SET FORTH IN THE
ASSET PURCHASE AGREEMENT NETTAXI WILL ALSO ASSUME ALL OBLIGATIONS PRIOR AND
FUTURE PERTAINING TO ALL EXISTING CONTRACTUAL AGREEMENTS(OUTLINED IN THE MASTER
SOFTWARE LICENSE AND DISTRIBUTION CONTRACT.)
THE CONVEYANCE AND TRANSFER OF THESE ASSETS INCLUDES "INTERNET THE CITY" CD-ROM
SOFTWARE, AND ANY EXCISING CONTRACTS RELATING TO THE SOFTWARE THAT WERE
CURRENTLY ESTABLISHED AND HELD BY SIMPLY INTERACTIVE, INC. "re: FOUNTAIN
TECHNOLOGIES CONTRACT" AND ALL PRIOR OR FUTURE OBLIGATIONS OUTLINED IN THE
MASTER SOFTWARE LICENSE AND DISTRIBUTION CONTRACT.
As of November 1, SSN properties has transferred and conveyed all property,
software, and contract rights to NETTAXI Online Communities, Inc. From this day
forward NETTAXI at its sole discretion may amend, transfer, or establish new
contracts/ relationships with any and all vendors relating to Simply
Interactive, Inc. or the "Internet the City" CD-ROM software. All monies due,
with respect to software bundling agreements are to be made directly to NETTAXI
Online Communities, Inc.
Sincerely
/S/ Robert A. Rositano Jr. Chairman
-------------------------------------
Robert A. Rositano Jr. Chairman / CEO Company Address:
2165 S. Bascom Ave.
Campbell, CA. 95008
Customer Service Contact: Brian Stroh 888 8799880
408 8799880
Should you require any further information or documentation, please advise the
undersigned and it will be forthcoming.
<PAGE>
ADMINISTRATIVE FLYCAST
- ------------------------------------------------------------------------
FLYCAST(TM) COMMUNICATIONS
CORPORATION
WEB ADVERTISING SERVICES AGREEMENT
For Sellers
V2.0-Sellers
Company Name ("Seller") Nettaxi Online Communities
- ------------------------------ ------------------------------
Primary Site(s) URL(s) www.nettaxi.com
- ------------------------------ ------------------------------
Contact Person(s) Name Robert or Dean Rositano
- ------------------------------ ------------------------------
Phone 408-879-9880
- ------------------------------ ------------------------------
Email [email protected] dean@nettaxi
- ------------------------------ ------------------------------
Flycast Sales Representative Shan Franklin
- ------------------------------ ------------------------------
Flycast Customer Support
Representative
- ------------------------------ ------------------------------
This agreement, dated June 3, 1998, describes the entire terms and conditions
for the sale of web advertising impressions on the Flycast Open Network(TM)
between Flycast Communications Corporation ("Flycast") and Nettaxi Online
Communities (the "Seller").
<PAGE>
Section 1.0 Definitions
1.1. AdAgent(TM).
The client software provided by Flycast for the purpose of purchasing
Impressions on the Flycast Open Network.
1.2. Ad Spaces.
The web page section(s) on Seller's web site registered with Flycast that
generate Impressions.
1.3. Buyers.
Customers who buy Impressions on the Flycast Open Network.
1.4. Buyer Terms and Conditions.
The Terms and conditions that apply to purchases of Impressions on the Flycast
Open Network. Copies are available from Flycast.
1.5. Default Advertisements.
Advertisements promoting Seller's web site (or Seller's goods or services) that
are displayed in the event there is no qualified Buyer for Impressions on
Seller's Ad Spaces.
1.6. Flycast.
Flycast Communications Corporation, a California corporation.
1.7. Flycast Ad Management System.
The tools and services provided by Flycast to manage web advertising campaigns,
including AdAgent, Ad Reporter, Site Registry, and Site Reporter.
1.8. Flycast Blind Buy Sale.
A transaction on the Flycast Open Network in which the Impression is sold as
part of a pool of Impressions from multiple sites, and the Buyer is unable to
specify web sites or Ad Spaces.
1.9. Flycast Open Network.
The network of web sites on which Buyers can purchase Impressions.
1.10. Flycast Spot Sale.
A transaction on the Flycast Open Network where the Impression is sold pursuant
to a real-time bidding process to the highest bidder that bids above the
Seller's minimum bid price.
1.11. Flycast Upfront Sale.
A transaction on the Flycast Open Network where a fixed number of Impressions
are sold to a specific Buyer (including Flycast) for a fixed, predetermined
price. A Flycast Upfront Sale cannot be canceled by the Seller or by the Buyer.
1.12. Impressions.
Web advertising impressions sold or made available for sale over the Flycast
Open Network.
1.13. Sellers.
Web sites that register Ad Spaces for sale on the Flycast Open Network.
1.14. Seller Status Information.
The Seller's Impression sale parameters with respect to each Ad space, including
the number of Impressions available to be sold on the Flycast Open Network, the
minimum price for the sale of the Impressions, etc.
1.15. Site Registry.
The HTML form(s) on Flycast's web site used by Sellers to register their Ad
Spaces with the Flycast Open Network, and to set and adjust Seller Status
Information.
Section 2.0. Selling Impressions
Section 2.1. General
Seller agrees to make Impressions available for sale on the Flycast Open Network
in the amount, price and Ad Space locations reflected in the Site Registry.
Seller agrees that by participating in the Flycast Open Network, it has made an
offer to sell Impressions at or above the minimum designated price. Flycast
does not represent or warrant that Seller will sell any Impressions through the
Flycast Open Network. Seller agrees that any Impressions otherwise unsold on
the Flycast Open Network will be offered for sale as part of a Flycast Blind Buy
Sale.
Section 2.2. Site Registration and Information
Seller agrees to complete the Site Registry information accurately and
completely, including setting "rate card,* minimum bid,* and Bind Buy" prices
for all of the Ad Spaces available for sale. Seller further agrees to update
Seller Status Information on a monthly basis.
Section 2.3. Fulfillment
Seller understands that Buyers use information about available Impressions on
Seller's site to plan their web media buys. Accordingly, Seller agrees to
provide all the Impressions reflected in the Site Registry for sale over the
Flycast Open Network. In addition, Seller agrees that if it sells Impressions
pursuant to a Flycast Upfront Sale, it will deliver all of the Impressions with
respect to such sale, and that it will provide "make-good" impressions as soon
as practicable in the event of an underdelivery.
Section 2.4. Payment to Seller
Flycast will pay Seller the following amount for Impressions made available for
sale through the Flycast Open Network:
REDACTED of revenues generated from the sale of Impressions on the Seller's
Ad Spaces.
Section 2.5. Payment Terms
Flycast will remit a monthly payment to seller sixty (60) days after the end of
the month in which Impressions are sold through the Flycast Open Network. For
example, Seller will be paid by March 30 for ads placed during the preceding
month of January. A Flycast payment report summarizing the Seller's activity
will accompany payment for the month. Flycast will accrue and hold monthly
payments due to Seller until the aggregate amount due exceeds $200 (or such
lesser amount due Seller in the event Seller terminates its relationship with
Flycast). If Seller is also a buyer, Flycast has the option to offset a payment
by the amount of any balance due Flycast from Seller's purchases of Impressions
on the Flycast Open Network.
Section 2.6. Discrepancies
Seller has thirty (30) days from the receipt of payment to report any
discrepancy or to question the payment. Flycast and Seller will use their best
efforts to resolve any discrepancy or question quickly and fairly. In case of a
discrepancy between any report generated by Flycast's SiteReporter and Flycast's
final billing information, the filling information will control.
Section 2.7. Ad Blocking
Flycast provides Seller an automated procedure for blocking selected advertisers
or advertisements from appearing on their Ad Spaces. Seller is responsible for
utilizing Flycast's ad blocking system in accordance with the procedures set
forth on Flycast's Web site. Seller acknowledges that Flycast's ad blocking
system provides adequate protection against the appearance of unwanted or
inappropriate advertisements or advertisers on Seller's Ad Spaces. SELLER
AGREES THAT NEITHER FLYCAST OR ANY BUYER SHALL BE LIABLE FOR THE CONTENT OF ANY
ADVERTISEMENTS DELIVERED BY FLYCAST ON SELLER'S AD SPACES.
Section 2.8. Impression Pricing
Seller agrees to cooperate with Flycast in pricing Impressions to enable Flycast
to offer Impressions on several sites with content similar to Seller at a single
price or consistent range of prices.
Section 2.9. Minimum Impressions; Term
Seller agrees to make a minimum of REDACTED Impressions available for sale per
month on the Flycast Open Network for at least three (3) months from the date
hereof. This Agreement will automatically renew at the end of the initial term
and will remain in effect unless terminated by either party with 30 day's
notice. Either party may, at its sole option, terminate this Agreement in its
entirety in the event that (i) the other party breaches any of its material
obligations, representations or warranties under this Agreement and fails to
cure such breach within thirty (30) days of receiving notice thereof, (ii) the
other party is acquired by a third party that would reasonably be determined to
be involved in substantial business activities that are directly competitive
with the business of the terminating party, or (iii) the other party institutes
insolvency, receivership or bankruptcy proceeding or any other proceedings for
the settlement of debt, which are not dismissed or resolved in such other
party's favor within sixty (60) days thereafter.
Section 2.10. Reporting
Seller is entitled to use Site Reporter, Flycast's online reporting application.
Flycast may limit Seller's use of Site Reporter pursuant to a reasonable policy
applied objectively to sites participating in the Flycast Open Network.
Section 2.11. Promotional Impressions
Seller agrees to provide REDACTED of its unsold Impressions (across
all of the sites sold through the Flycast Open Network) with respect to the Ad
Spaces covered by this contract available to Flycast fee of charge for use in
promoting the Seller and the Flycast Open Network. In addition, Seller agrees
to provide Flycast with reasonable amounts of additional promotion inventory
from time to time in connection with specific programs or promotions.
Section 2.12. Deleted
Section 2.13. Rights Upon Termination
On termination of this Agreement, all of Seller's rights under the AdAgent
License Agreement (attached hereto as Exhibit A). If this Agreement is
terminated for any reason, neither party will be liable to the other because of
such termination for damages for the loss of prospective profits, anticipated
sales, good will, or for expenditures, investments or commitments made in
connection with this Agreement. The termination of this Agreement shall not
relieve either party from its liability to pay any fees that have accrued to the
other party prior to the date of termination. The parties' rights and
obligations under Section 4.2-4 shall survive expiration or termination of this
Agreement.
Section 3.0. Advertising Management Services
Section 3.1. Default Advertising
Subject to the terms and conditions of the AdAgent License Agreement (attached
hereto as Exhibit A). Seller can use Flycast's Ad Management System to manage
Default Advertising. Seller is bound by the AdAgent License Agreement (attached
hereto as Exhibit A). Seller rights under this Section 3.1 are limited to
REDACTED of Seller's inventory made available for sale through the Flycast
Open network, or REDACTED impressions per month, whichever is less.
Section 3.2. Outsourced Ad Management
Seller can use Flycast's Ad Management System to manage web advertising
campaigns originated by Seller on behalf of third-party advertisers appearing on
the Ad Spaces covered by this contract in accordance with the following terms
(which terms override Section 2.4):
- - Section 3.2.1. Commission. Flycast is entitled to a commission equal to
REDACTED Impressions delivered by Seller utilizing the Flycast Ad
Management System to manage ad campaigns on the Ad Locations covered by this
contract.
- - Section 3.2.2. Billing and Collection. Flycast will invoice Seller for
the commission described in Section 3.2.1, and retains the right to offset any
payment due Seller by the amount of the commission. Seller bears sole
responsibility for billing and collecting payment from advertisers for
advertisements delivered pursuant to this Section 3.2.2.
Section 3.3. Purchasing Impressions
Subject to the terms and conditions of the AdAgent License Agreement (attached
hereto as Exhibit A). Seller can use the Flycast Ad Management System to
purchase Impression on the Flycast Open Network. Seller will be subject to the
Buyer Terms and Conditions with respect to the purchase of Impressions.
Section 4.0. Standard Terms and Conditions
Section 4.1. Programming
Seller will effect all necessary HTML changes with respect to the Ad Spaces as
described in Flycast Site Registry so as to enable Flycast to deliver
Impressions to Buyers in accordance with this Agreement.
Section 4.2. Quality Assurance
Seller will maintain its web site and Ad Spaces in accordance with the highest
industry standards. Seller acknowledges that Flycast has no responsibility to
review the content of its web site(s) or Ad Spaces. Without limiting the
foregoing, Seller represents and warrants that:
- - Section 4.2.1. Content Restrictions. Seller's web site(s) and Ad Spaces
shall not contain, or contain links to, content promoting the use of alcohol,
tobacco or illegal substances; nudity, sex, pornography, or adult-oriented
content; expletive or inappropriate language; content promoting illegal
activity, racism, hate, "spam," mail fraud, pyramid schemes, or investment
opportunities or advice not permitted under law; content that is libelous,
defamatory, contrary to public policy, or otherwise unlawful, or any other
content deemed inappropriate by Flycast in its sole discretion.
- - Section 4.2.2. Ad Space Location; Limitation. Seller agrees to place
Flycast Ad Spaces in a conspicuous location on pages on its web site(s), either
at the top of the web page, or on the top one-third of an expanded view of the
page on a 640x480 monitor. In addition, Seller agrees that it shall not display
more than one advertisement (whether or not provided by Flycast) on any single
page on which a Flycast Ad Space appears.
- - Section 4.2.3. Valid Impressions. Seller shall not to run "robots" or
"spiders" against its web site(s) or use any means to artificially increase the
Impressions available with respect to any Ad Spaces.
- - Section 4.2.4. Refresh rates. Seller may utilize "meca refresh banner
rotations" only for pages that have chat, video broadcast, audio broadcast, or
active gaming content. The refresh rates for these rotations must exceed five
(5) minutes.
- - Section 4.2.5. Cooperation. Seller will cooperate with any reasonable
Flycast efforts or initiatives relating to auditing sites on the Flycast Open
Network, obtaining enhanced demographic information about visitors to Seller's
site(s), etc.
Seller understands and agrees that a violation of this Section 4.2 may result in
the suspension or termination of active advertising campaigns running on
Seller's Ad Spaces, removal of Seller's web site(s) from the Flycast Open
Network, or any other action deemed necessary in Flycast's sole discretion.
Section 4.3. Proprietary Rights
Seller agrees that it shall not have, nor will it claim, any right, title or
interest in any advertising content delivered by Flycast (other than Seller's
own advertising content). Seller understands that, other than the licenses
granted in the AdAgent License Agreement attached hereto, Flycast grants Seller
no license to Flycast advertising content, the name "Flycast" or any derivative
thereof, or any other trademarks, logos, copyrights, patents, trade secrets, or
other intellectual property rights which are owned or controlled by Flycast and
made available to Seller in any manner.
Section 4.4. Public Relations
Flycast retains the right to refer to Seller as a customer in its web site,
press releases and marketing collateral.
Section 4.5. Representation and Warranties
Each party represents and warrants to the other party that such party has the
full corporate right, power and authority to enter into this Agreement and to
perform the acts required of it hereunder; and the execution of this Agreement
and the performance by such party of its obligations and duties hereunder, do
not and will not violate any agreement to which such party is a party or by
which it is otherwise bound; and when executed and delivered by such party, this
Agreement will constitute the legal, valid and binding obligation of such party,
enforceable against such party in accordance with its terms. Such party
acknowledges that the other party makes no representations, warranties or
agreements (written or oral) related to the subject matter except as expressly
provided for in this Agreement.
Section 4.6. Limitation of Liability
The parties agree that: (i) Flycast exercises no control and has no
responsibility whatsoever over the content or quality of any advertising
materials or any AdSpaces, (ii) use of Flycast's services is at Seller's own
risk, and (iii) this is not a contract for the sale of goods and, therefore, is
not subject to the Uniform commercial Code. EXCEPT AS EXPRESSLY PROVIDED
HEREIN, THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND FLYCAST
DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, FOR THE
ADVERTISING SERVICES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLED WARRANTIES
ARRISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. Flycast shall not be
liable for any advertisers whose content appear on the Flycast Open Network, nor
the contents of any advertisement, nor shall Flycast be liable for any loss,
cost, damage, or expense (including attorney's fees) incurred by Seller or any
advertiser in connection with an advertiser's or Seller's participation in the
Flycast Open Network. Flycast makes no guarantees with respect to the services
rendered under this Agreement, and neither Flycast nor any of its officers,
directors, agents, Flycast Open Network members or sponsors shall have any
liability as a result of Flycast's performance of this Agreement, including,
without limitation, Internet disruption, interrupted service, errors or delays
in providing the service, levels of use or impressions, loss of data, failure to
provide requested subject categories, failure to meet Seller or advertiser's
requirements, or other injury, damage or disruption to advertiser or
advertiser's web site. Without limiting the foregoing, Flycast's entire
liability under, for breach of, arising under, or related to this Agreement or
the services to be provided hereunder (whether in tort, contract or any other
theory), and Seller's solo remedy is for Flycast, if possible, to provide the
services agreed hereunder or refund any amounts prepaid by Seller related to the
services giving rise to such liability, provided such refund shall not exceed
the aggregate charges for services rendered for the prior six months under this
Agreement that gave rise to such liability. In no event shall Flycast be liable
for indirect, exemplary, special, incidental or consequential damages, or costs,
including but not limited to, any lost profits or revenues, loss of use or
goodwill, or any third party claims, even if such party has been advised of the
possibility of such damages.
Section 4.7. Nondisclosure and Proprietary Information
Seller shall not disclose any of the terms and conditions of the Agreement to
any third party without the express written consent of Flycast. Neither party
shall disclose to any third party the Confidential Information of the other
party and shall not use any such Confidential Information for any purpose other
than the purpose for which it was originally disclosed to the receiving party.
"Confidential Information means any information of a party disclosed to the
other party, which is identified as, or should be reasonably understood to be,
confidential to the disclosing party, including, but not limited to the results
of Seller's sale of Impressions on the Flycast Open Network, know-how, trade
secrets, technical processes and formulas, software, customer lists, unpublished
financial information, business plans, projections, and marketing data.
"Confidential Information" shall not include information that (i) is known to
the receiving party at the time it receives Confidential Information; (ii) has
become publicly known through no wrongful act of the receiving party; (iii) has
been rightfully received by the receiving party from a third party authorized to
make such communication without restriction; (iv) has been approved for release
by written authorization of the disclosing party; or (v) is required by law to
be disclosed.
Section 4.8. Indemnification
Seller, at its own expense, shall indemnify, defend and hold Flycast and its
officers, directors, employees, agents, distributors and licensees harmless from
and against any judgment, losses, deficiencies, damages, liabilities, costs and
expenses (including reasonable attorney's fees and expenses) incurred in
connection with or arising from any claim, suit, action or proceeding
(collectively, a "Claim") to the extend the basis of such Claim relates to a
breach by Seller under this Agreement or in connection with claims arising out
of publication of any content or information published by Seller hereunder
(including, without limitation, any claim of trademark or copyright
infringement, libel, defamation or breach of confidentiality) or any product or
service related to such content or information or any breach of a third party
contract.
Section 4.9. Miscellaneous
a. Independent Contractors. The parties to this Agreement are independent
contractors. Neither party is an agent or partner of the other party. Neither
party shall have any right, power or authority to enter into any agreement for
or on behalf of, or incur any obligation or liability of, or to otherwise bind,
the other party. This Agreement shall not be interpreted or construed to create
an association, agency, joint venture or partnership between the parties or to
impose any liability attributable to such a relationship upon either party.
b. Entire Agreement. This Agreement and the AdAgent License Agreement
attached hereto as Exhibit A sets forth the entire Agreement between the parties
and supersedes prior proposals, agreements, and representations between the
parties, whether written or oral, regarding the subject matter contained herein.
This Agreement may be changed only my mutual agreement of the parties in
writing. This Agreement may be changed only by mutual agreement of the parties
in writing. This Agreement may be executed in any number of counterparts, each
of which shall be an original and all of which shall constitute together but one
and the same document.
c. Assignment. Seller may not assign or otherwise transfer, whether
voluntarily or by operator of law, any rights or obligations under this
Agreement without the prior written consent of Flycast.
d. Governing Law/Notice. This Agreement shall be construed and interpreted
according to the laws of the State of California without reference to conflicts
of law provisions. The parties hereby consent to the exclusive jurisdiction of
the courts of San Francisco County, California. All written notices between the
parties shall be deemed to have been given if personally delivered, sent by
courier or certified, registered or express mail, transmitted by electronic mail
via the Internet (with copy sent by registered or certified airmail) to the
address set forth above (or as otherwise directed in writing). Unless otherwise
provided herein, all notices shall be deemed to have been duly given on: (a) the
date of receipt (or if delivery is refused, the date of such refusal) if
delivered personally, by electronic mail or by courier; or (b) three (3) days
after the date of posting if transmitted by mail.
e. Waiver/Severability. The waiver by either party of a breach or right
under this Agreement will not constitute a waiver or any other or subsequent
breach or right. If any provision of the Agreement is found to be invalid or
unenforceable by a court of competent jurisdiction, such provision shall be
covered from the remainder of this Agreement, which will remain in full force
and effect.
f. Force Majeure. Flycast shall not be in default or otherwise liable for
any delay in or failure of its performance under this Agreement where such delay
or failure of its performance under this Agreement arises by reason of any Act
of God, or any government or any governmental body, acts of war, the elements,
strikes or labor disputes, or other cause beyond the control of Flycast.
Flycast Communications Corporation
__________________________________
By:_______________________________
Title:____________________________
Flycast Communications Corporation
Seller
__________________________________
By:_______________________________
Title:____________________________
(Company Name):__________________
<PAGE>
Exhibit A
AdAgent License Agreement
ONCE YOU DOWNLOAD FLYCASTS SOFTWARE, YOU AND THE COMPANY OR ENTITY THAT YOU
REPRESENT ("YOU") WILL BE BOUND BY THE FOLLOWING LICENSE AGREEMENT
("AGREEMENT").
1. GRANT. Subject to the terms of this Agreement, Flycast Communications
Corporation ("Flycast") hereby grants You a limited, personal nontransferable,
nonsublicensable, royalty-free, nonexclusive license to use the AdAgent software
product that You are about to download in object code form, along with the
documentation that accompanies it ("Software") for managing, displaying, and
placing advertising on the world wide Web. The Software consists of various
components, which are identified by appropriate filenames in the download. You
may copy, distribute, install, and use AdAgent for internal use only. You may
only install and use one copy of the AdAgent and other components of the
Software. You may also copy the Software for archival purposes, provided any
copy must contain all of the original Software's proprietary notices.
2. RESTRICTIONS. You may not, directly or indirectly: modify, translate,
reverse, engineer, decompile, disassemble (except to the extend applicable laws
specifically prohibit such restriction), create derivative works based on, or
otherwise attempt to discover the source code or underlying ideas or algorithms
of the Software; or copy and distribute (except for the purposes set forth
above) rent, lease, or otherwise transfer rights to the Software; use the
Software for timesharing or service bureau purposes, or for performing
comparisons or other "benchmarking" activities, either alone or in connection
with any other software (and you will not publish the results of such
activities); or remove any proprietary notices or labels on the Software. As
between the parties, title, ownership rights, and intellectual property rights
in and to the Software, and any copies or portions thereof, shall remain in
Flycast and its suppliers or licensors. The Software is protected by the
copyright laws of the United States and international copyright treaties.
3. SUPPORT AND UPGRADES. This Agreement does not obligate Flycast to
provide any support or upgrades, patches, enhancements, and fixes (collectively
"Upgrades") for the Software. Notwithstanding the foregoing, any Upgrades that
You may receive become part of the Software and the terms of this Agreement
apply to them.
4. CONTENT. Title, ownership rights, and intellectual property rights in
and to any advertisements, information, text, pictures, images, characters,
sounds, personalities, code (source and object), data, and other materials
("Content") provided by third parties, or accessed through, managed with,
processed with, or otherwise used in connection with the Software is the
property of the applicable owner and may be protected by applicable copyright or
other law. This agreement give You no rights, title, or interest to Content
(including without limitation Content that You post or create suing the
Software). Flycast exercises no screening, editorial, or other control over
Content, and Content may include material that could be deemed distasteful,
misleading, inaccurate, offensive, pornographic or otherwise objectionable. You
hereby agree to indemnify and hold harmless Flycast from any and all damages,
liability, costs, and expenses (including attorney's fees) arising from claims
related to your use of the Content, including, without limitation, infringement,
misappropriation, privacy, security, right of publicity, false advertising,
fraud, consumer protection, and claims that Content is obscene, pornographic,
indecent, or otherwise objectionable.
5. WARRANTY AND DISCLOSURE. FLYCAST PROVIDES THE SOFTWARE AND ANY SERVICES
THAT YOU RECEIVE "AS IS" AND WITHOUT WARRANTY OF ANY KIND, AND FLYCAST HEREBY
DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE,
ACCURACY, RELIABILITY, AND NON-INFRINGEMENT. THIS DISCLAIMER OF WARRANTY
CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
6. LIMITATION OF LIABILITY. You assume the entire risk as to the quality
and performance of the Software. Flycast assumes no liability for the cost of
any service or repair if the Software is defective. Further, You assume the
responsibility of, and any costs or liability associated with, making a
connection (by any means) to the Internet, or other online service, or network
and You understand that some features of the Software will not operate without
such a connection. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT,
CONTRACT, STRICT LIABILITY, OR OTHERWISE, SHALL FLYCAST OR ITS LICENSORS,
SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT,
INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER
INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK
STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, DAMAGES
RESULTING FROM DISABLING OF THE SOFTWARE, OR ANY AND ALL OTHER COMMERCIAL
DAMAGES OR LOSSES. IN NO EVENT WILL FLYCAST BE LIABLE FOR ANY DAMAGES IN EXCESS
OF THE LICENSE FEES PAID IN CONNECTION WITH THE SOFTWARE, EVEN IF FLYCAST SHALL
HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY
OTHER PARTY.
7. TERMINATION. This Agreement will become effective upon the effective
date of the web Advertising Services Agreement between You and Flycast and will
last until terminated under this Section. You may terminate this Agreement and
the license granted herein at any time by destroying or removing from all hard
drives, networks, and other storage media all copies of the Software, and paying
all amounts due to Flycast under the web Advertising Services Agreement.
Flycast may terminate this Agreement and the license granted herein immediately
if You breach any provision of this Agreement. This Agreement will
automatically terminate, without notice from Flycast upon the termination of the
web Advertising Services Agreement between You and Flycast. Upon termination of
the Agreement You agree to destroy or removed from such storage media all copies
of the Software, Sections 2 and 4 through 11 shall survive termination of this
Agreement.
8. EXPORT CONTROLS. You shall comply with all export laws and restrictions
and regulations of the Department of Commerce, the United States Department of
Treasure Office of Foreign Assets Control ("OFAC"), or other United States or
foreign agency or authority, and agree not to export, or allow the export or
re-export of the Software in violation of any such restrictions, laws or
regulations (including, without limitation, export or re-export to destinations
prohibited either in Country Groups Q, S, W, Y or Z country specified in the
then current Supplement No. 1 to Section 770 of the U.S. Export Administration
Regulations (or any successor supplement or regulations), or the OFAC
regulations found at 31 C.F.R. 500 et seq.) By downloading or using the
Software, You are agreeing to the foregoing and You are representing and
warranting that You are not located in, under the control of, or a national or
resident of any restricted country or on any such list.
9. U.S. GOVERNMENT RESTRICTED RIGHTS. Use, duplication or disclosure of the
Software by the Government is subject to restrictions set forth in subparagraph
(c)(1)(ii) of The Rights in Technical Data and Computer Software clause at DFAR
252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer
Software--Restricted Rights at FAR 52.227-19, as applicable, and all other
Federal laws and regulations that protect Flycast's rights in privately
developed computer software.
10. MISCELLANEOUS. This Agreement represents the complete agreement
concerning this license between the parties and supersedes all prior agreements
and representations between them. It may be amended only by a writing executed
by both parties. If any provision of this Agreement is held to be unenforceable
for any reason, such provision shall be reformed only to the extent necessary to
make it enforceable. This Agreement shall be governed by and construed under
California law, without reference to conflict of law provisions.
11. CONFIDENTIALITY. The Software and other technical, business, and
financial information, including, without limitation, all pricing information,
that You receive from Flycast is the confidential information of Flycast
("Confidential Information"). You agree not to disclose or use Confidential
Information for any purpose except the purposes permitted in this Agreement.
Confidential Information shall remain confidential until you can document that
such Confidential Information is generally available to the public. You
acknowledge that a breach of the obligations of this Section will cause
irreparable harm to Flycast, and you hereby consent to Flycast being entitles to
equitable relief (in addition to any other remedies) to enforce the terms of
this section.
BUYERS SELLERS MEMBERS FLYCAST CONTRACT
<PAGE>
Sales and Representation Contract
It is hereby agreed Nettaxi Online Communities, Inc. (hereinafter client) will
use the services of Michael Weiner dba Unique Media Service's (hereinafter
Unique) as its advertising representative for the client internet site, known as
Nettaxi Online Communities, Inc, located at the internet address of
http://vww.nettaxi.com and any and all succeeding pages of internet address, and
whose actual address is 2165 South Bascom Avenue, Campbell, California 95008.
Reasonable rates for said advertising will be set by client through consultation
with Unique, and a formal Tate card will be published by client for Unique's use
and understanding. Any rate deviation from said rate card for advertisers will
be discussed and agreed upon by both client and Unique, and Unique shall not
confirm a sale to an advertiser until client has agreed with Unique, orally or
in writing, to accept such a confirmation for an advertiser. Any trade for
product of any kind, including but not limited to merchandise, time, space,
shall be at the agreement of client and Unique.
Client maintain the right to limit the types of advertising (i.e.: no
cigarettes), and shall notify Unique of such limitations and requirements in
advance with thirty days written notice and/or the limitation, shall be made a
part of this contract.
Client agrees to furnish Unique with all research and data, including audience
research available to it, and further agrees to conduct an audience research
survey at least once per year.
In consideration of client's agreement to enter into this contract, Unique
agrees to generate advertising funds through sales calls to advertising
agencies, manufacturers, publishers, other internet sites and any and all other
resources available to it with a fair and reasonable effort Unique shall inform
client of negotiations with potential advertisers in progress at client's
request.
Unique agrees to assist client in promotions, including on site promotions, and
cross promotions with various other sites and media.
Unique and client agree to maintain an open book policy in regard to
advertising, whereby either may inspect the others books with proper notice to
obtain any further assurances of contract being carried out per agreement
Unique shall be responsible for the collection of funds for advertising
contracts sold by Unique, and the proper distribution thereof. Unique shall
retain no liability for the advertisers' payment, but shall make every effort to
assure payment through proper credit checks and other sources available,
Client agrees to allow recognized advertising agencies a REDACTED agency
commission. Client and Unique agree to the following fees for services rendered
by Unique to be paid to Unique:
Fees for Unique Media Services services:
REDACTED of all net dollars of advertising sold and collected by Unique for
client. REDACTED of my trades for products, time, space, services, etc.
Net dollars shall be defined as advertising dollars after agency commission has
been deducted.
The term of this contract is for one year from the date of the execution of this
contract, and may be canceled by giving ninety days' prior written and signed
notification after the first ninety days of contract being in effect, by either
party, during which time all time; and conditions will remain in full force.
Unique shall have the right to extend the term for an additional year with the
mutual consent of client. Client shall notify Unique of non-renewal of contract,
in writing, thirty days prior to the expiration of this contract or it will be
understood by both parties that the contract has been mutually renewed. Should
no such instrument be delivered, then it shall be considered mutually agreed
without further notice.
<PAGE>
All advertising clients and advertising leads generated by Unique shall be
considered Property of Unique for a total of five years from any date of
cancellation of contract with Unique, and all commissions agreed upon to be paid
Unique shall carry forth throughout said period.
Should Unique incorporate, Client agrees that this contract may be assigned m
whole to such corporation
This contract constitutes the entire agreement of the parties, and may be
changed, altered or amended only by instrument in writing, executed by all
parties.
This contract shall be governed by the laws of the State of South Carolina, said
state being the forum for this contract.
Agreed to this 7th day of July 1998 by Michael Spencer Weiner, President of
Unique Media Services, 151 Pleasant View Road, Blythewood, South Carolina 29016
and Dean Rositano
--------------
President (Title) of Nettaxi Online Communities,.Inc., 2165 South Bascom
- ---------
Avenue, Campbell. California 95008.
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Signed for Unique Media Services by /S/ Michael Weiner
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Michael Weiner
Title: President
Signed for Client by /s/ Dean Rositano
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Name: Dean Rositano
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Title President
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ECHARGE(TM) CORPORATION
MERCHANT SERVICES AGREEMENT
Proprietary and Confidential
This Agreement is entered into as of this ____th day of __________, 199__ (the
"Effective Date") by and between eCHARGE(TM) Corporation (hereinafter referred
to as "eCHARGE(TM)"), a Washington based corporation with a place of business at
Suite 745, 500 Union Street, Seattle, WA, 98101, and Suite 401, 1770 West 7th
Street, Vancouver, BC, V614Y6, and
Merchant Name: Nettaxi Online Communities, Inc.
Street Address: 2165 S. Bascom Ave., Campbell, CA 95008
Mailing/Billing Address: _______________________________________
Federal Tax ID Number (Social Security Number)___________________
Contact: _____________________________________________
Telephone: ____________________ Fax:__________________________
Program Name: ________________ Program Start Date:___________
eCHARGE(TM) and Merchant hereby agree that the following terms and conditions
apply to the services specified herein and in any Exhibit(s) or Amendments(s)
attached hereto, or as may be mutually agreed upon in writing at some future
date. This Agreement shall not be effective until executed by the Merchant and
accepted by eCHARGE(TM) at its principal place of business. This Agreement will
be binding upon the successors, assignees and legal representatives of the
parties. The terms of this Agreement and the Program it authorizes are subject
to all applicable state, local and federal laws, and the rules of the CARRIER.
1. SERVICES
eCHARGE(TM) agrees to provide to Merchant those services specified on the
attached Exhibit BB (the "Services"). The parties acknowledge that Merchant
intends to use the Services in connection with its information offerings, web
pages and programs (the Program"(s)).
2. PRICING
eCHARGE(TM) shall perform the Services for the prices described on attached
Exhibit A. eCHARGE(TM) reserves the right to pass on any price increases from
the CARRIER, including but not limited to line fees, transport charges, and
billing and collection fees. In addition, upon thirty (30) days notice, the
prices set forth on Exhibit A may be adjusted by eCHARGE(TM) to the then
standard of eCHARGE(TM) rates.
3. TERM
The term of this Agreement shall be for a period of ____ months ("Primary Term")
from the Effective Date. Following completion of the Primary Term, this
Agreement will be extended automatically indefinitely until written notice of
termination is received by either party at least thirty (30) days in advance of
the effective date of termination. The term of this Agreement shall be a
minimum of ninety (90) days after the starting date of program. Subject to
completion of the ninety (90) day minimum period, this Agreement or any Program
Scheduled hereto, may be terminated according to the terms set out in Section 6
(Termination).
THIS AGREEMENT SHALL NOT BE EFFECTIVE UNTIL EXECUTED BY THE CUSTOMER AND
ACCEPTED BY AN AUTHORIZED REPRESENTATIVE OF eCHARGE(TM) .
eCHARGE(TM) Corporation
By:______________________________________________
Authorized Signature
MERCHANT
_________________________________________________
By:______________________________________________
Name (Print):____________________________________
(Title) ____________________________________
<PAGE>
1. DEFINITIONS
A. Definitions: For purposes of thus document, "eCHARGE(TM)" shall be
deemed to include eCHARGE(TM) Corporation, its subsidiaries, and their
affiliates and the directors, officers, employees, agents, representative,
subcontractors and suppliers of all of them, and "damages" shall be doomed to
refer collectively to all injury, loss or expenses incurred.
In addition to the terms defined in the Agreement(s), the following terms will
have the meanings set forth below:
The words "eCHARGE(TM)", "we", "our", and "as" mean eCHARGE(TM)" Corporation and
the words "you" and "your" mean the Merchant and its employees and Agents, if
any.
Billing Month-Each billing cycle, consisting of approximately 30 days and ending
on the last Friday of each month, used by eCHARGE(TM) to bill its Subscribers
for the Service.
2. AGREEMENT
A. Billing Services: eCHARGE(TM) will secure bill processing, bill
rendering, inquiry, collection and remittance services ("Billing Services") for
all numbers from the CARRIER of choice. This Agreement is expressly contingent
upon the ability of the CARRIER to secure necessary Billing Services from Local
Exchange CARRIER, ("LECs"), eCHARGE(TM) has no control over the CARRIER's
ability or willingness to provide call detail information.
B. Intellectual Property:
i. General. All right, title and interest in and to any original works of
authorship, inventories, discoveries, patents, ideas, concepts or any
improvements relating to the Program(s) or Services which are created by or
conceived, first reduced to practice, made or developed by eCHARGE(TM) prior to
the Effective Date or in anticipation of, in the course of or as a result of
design and development work pursuant to this Agreement, including without
limitations any source code (collectively, the "Intellectual Property"), shall
be solely owned by eCHARGE(TM). Source code. In any application in which
eCHARGE(TM) develops the programming, unless otherwise agreed in writing,
eCHARGE(TM) is the sole owner of the Source code.
ii. Trademarks. Neither party shall publish or use or change the other
party's names, logos, trademarks or service marks (collectively, "Marks") in any
manner inconsistent with the functional use of the eCHARGE(TM) application
without mutual prior written consent. Merchant agrees to prominently display
the eCHARGE(TM) "ICON" and other materials provided while this Agreement is in
effect or until notified by eCHARGE(TM) it cease its display or use.
iii. Restriction on Use and Disclosure. All documentation regarding
Intellectual Property, technical information, software, confidential business
information or other materials, in written form and clearly marked as
"proprietary" or "Confidential" ("Proprietary Information"), furnished by either
party in connection with this Agreement and all copies of such Proprietary
Information shall remain the property of the disclosing party and shall be held
in confidence and safeguarded by the receiving party.
C. Telephone Numbers: Merchant shall not have ownership of the telephone
number(s) assigned in connection with the Program(s).
D. Tariffed Services: Merchant's use of the Services is subject to any and
all tariff provisions related to said Services, to the extend that the Services
are tariffed. Charges under this Agreement will not be abated or refunded in
the event of outages or degradation in tariffed services, and charges for
tariffed services will not be abated or refunded in the event of delay or
failure of performance of this Agreement.
E. Merchant Obligations: Payment of any amounts billed for CARRIER charges,
service bureau fees, Billing Services, taxes, etc. Which are in excess of the
monthly CARRIER remittance for a dedicated 900 or other number, shall be paid by
the Merchant no later than the 20th day after the invoice date. In the event
payment is not received by the 20th day after the invoice date, then eCHARGE(TM)
may, in its discretion and without notice, require the placement of a deposit to
secure future payment, disconnect the Service, or undertake any action necessary
to secure payment in full. Late payments will be charged a $15 late fee, and
shall accrue interest at the rate of 1.5% per month (18% per annum) or the
maximum amount allowed by law. Merchant will be liable to eCHARGE(TM) for any
collection or attorney feels that are incurred in the event action is taken by
eCHARGE(TM) to collect any past due balance.
F. "900" or other Number Services: Under all applications, eCHARGE(TM)
accepts remittance payment directly from the network provider (the "CARRIER").
The following provisions apply on all applications:
i. The CARRIER will bill the Merchant's customers ("Callers") for the
charges associated with the Program(s).
ii. The CARRIER will make payments to eCHARGE(TM) . These payments are
established in an agreement between the CARRIER and eCHARGE(TM) and are, in
essence, the charges collected from Callers less the Carrier's charges for
network service including taxes, any adjustments resulting from Caller inquiry,
the billing fee of the CARRIER, including taxes and any applicable billing
surcharges, and any other charges ("Net Carrier Payments").
iii. The CARRIER reserves the rights to remove from a Caller's bill any
amounts associated with the Services that a Caller disputes or refuses to pay.
Where amounts have been removed the Caller's bill, Merchant will remain
obligated to eCHARGE(TM) and will be billed eCHARGE(TM)'s service bureau fees
for the respective call, as well any billing, transport or other related charges
for network services and services features that eCHARGE(TM) may incur.
iv. eCHARGE(TM) may establish a reserve fund subsequent billing adjustments
through a "Merchant Reserve Program" (MRP) from _________ to Merchant.
eCHARGE(TM) may require Merchant to deposit funds for this purpose as security.
In the event there is less than six months history of Merchant billings, the
Holdback MRP will generally be fifteen percent (15%) of the gross premiums
charged to callers. If Merchant breaches this agreement, eCHARGE(TM) reserves
the right to offset against the MRP Holdback any damages sustained by
eCHARGE(TM) as a result of the Merchant's breach, provided, however, that such
an offset shall not limit eCHARGE(TM)'s other remedies for breach of this
Agreement by Merchant. eCHARGE(TM) will not be liable to Merchant for any losses
or damages resulting from any charge back or collection of any charge back or
other amounts due under this agreement.
v. Merchant agrees to grant eCHARGE(TM) a security interest in all
receivables, and any other Merchant property maintained or in eCHARGE(TM)
possession as security for the performance of Merchant obligations and our right
of charge back under this Agreement.
vi. The Net CARRIER Payments shall further be adjusted by eCHARGE(TM) by the
service charges set forth herein and by the MRP Holdback(s). Remittance of the
new payment after service charges and MRP Holdback(s) will be made by
eCHARGE(TM) to Merchant within fifteen (15) days after receipt by eCHARGE(TM) of
payment from CARRIER.
vii. The CARRIER may implement a chargeback and refund system wherein
chargebacks of payments made to eCHARGE(TM) and Merchant will occur if the
Caller(s) do not pay, either by denying all knowledge of the call or for other
reasons. All chargebacks will be for the account and responsibility of the
Merchant. Such chargebacks will be satisfied out of current revenue amounts
and, if necessary, the MRP Holdback account will be charged. In the event that
these totals do not satisfy the chargeback liability, Merchant agrees to pay all
CARRIER documented chargebacks until liability is satisfied. This obligation
survives termination of the Agreement. eCHARGE(TM) will provide to Merchant any
refund reports which are received from the CARRIER.
viii. eCHARGE(TM) reserves the right to modify the amount of the MRP Holdback in
its sole discretion. In addition eCHARGE(TM), may establish additional
reserves. Upon termination of this Agreement, eCHARGE(TM) will refund any
funds remaining in the reserve account after fourteen months from the
termination date.
ix. In the event of any dispute regarding the number of calls received in
any billing period, the CARRIER shall control.
G. Credit Checks: eCHARGE(TM) may, at its option, perform a credit check on
all new or existing Merchants.
3. OBLIGATIONS OF MERCHANT
A. Merchant Costs: Merchant is responsible for all costs and management
related to the production, updating and promotion of all information used in its
Program(s), and for expenses incurred to obtain order.
B. Disclosure: Merchant shall fully disclose the following in a clear and
understandable manner in all internet, print, broadcast or telephone advertising
and any announcements promoting Merchant's Program(s): (i) the charges for the
Program(s) offering, (ii) any geographic time of day, or other limitations upon
the availability of the Program(s) (iii) that Merchant is solely responsible for
the content of all messages, products or services delivered and all
representations made during contact with Callers; and (vi) any other information
required by CARRIERs or regulators.
C. Endorsement: Merchant shall not indicate in its Program(s) or in any
advertising or announcements promoting its Program(s) that the CARRIER or
eCHARGE(TM) endorses the Program(s), or Merchant's products or services offered
through the Program(s), in any way.
D. Content Notification: Merchant will provide eCHARGE(TM) the web address
and a complete and accurate written description of is Program describing the
products and/or services comprising each Program and an outline of the
advertising of the Program, prior to the commencement of each Program and will
provide a new written description of the Program in the event of any changes in
such Program or Advertising. Merchant understands that eCHARGE(TM) will not
provide services for any Program that eCHARGE(TM), in its sole discretion,
determines is objectionable or is advertised in an objectionable manner.
Merchant acknowledges that it shall be solely responsible for (i) its
Program(s); (ii) the Program content;; (iii) all representations made during the
Program; (iv) the content and nature of all promotions and advertising; and (v)
the quality of products and/or services covered by the Program(s).
E. Legal Compliance: Merchant warrants that its Program(s) will at all
times comply in full with any and all requirements of federal, state and local
laws, including but not limited to any gaming statutes or the solicitation of
charitable or political contributions that apply to the Program(s).
F. Price Changes: In order for Merchant to charge the charge to Callers for
a Program, Merchant must notify eCHARGE(TM) at least thirty (30) days, or the
number of days notice required by the CARRIER if greater, in advance of the
change.
G. Traffic Increases: Merchant is required to provide forty-eight (48)
hours notice to eCHARGE(TM) before stimulating any Program inn a manner which
might be expected to result insignificant traffic surges.
H. Caller Tax Responsibility: eCHARGE(TM) is not responsible for the
determination, application, collection or remittance of any taxes due or which
may become due with respect to fees charged to Callers for the Services.
I. Honor all transactions: (i) Merchant agrees to honor all transactions
presented in connection with sales or service transactions via eCHARGE(TM)
without discrimination, subject to the procedures set forth in this Agreement.
(ii) Merchant agrees to honor these transactions unconditionally and not to
discriminate against a transaction in favor of a transaction completed with
cash, check, credit card or other form of payment.
J. Fraudulent transactions: Merchant agrees not to create a transaction
that Merchant knows or should have known to be fraudulent.
K. Performance: The access, merchandise or services described for sale by
the Merchant must actually be delivered or performed immediately or in fully
disclosed time frame otherwise specified to all users.
L. Cash advances: Merchant agrees not to engage in any transactions
involving cash advances or extensions of credit for any purpose, unless
specifically authorized in writing by eCHARGE(TM) to do so.
M. Uncollectible replacement: Merchant agrees not to encourage a
transaction to replace uncollected funds from another payment method, such as to
cover a returned check.
N. Privacy: Merchant agrees not to require personal information about the
customer, such as the home or work address, telephone or driver's license number
or Social Security number, as a condition of sale.
O. Customer Contact: Merchant agrees that eCHARGE(TM) may contract or
directly communicate with any customer concerning any sale or transaction
submitted to or through eCHARGE(TM).
4. RETURNS AND EXCHANGES
A. Merchant agrees to establish and maintain a fair and uniform policy for
the exchange and return of products or services sold.
B. Merchant agrees to give only non-cash credit, upon caller request for
return, and not to refund cash unless otherwise provided for by the CARRIER.
C. All disputes involving the goods or services purchased via eCHARGE(TM)
will be settled between the Merchant, the CARRIER and the caller. Merchant
agrees to indemnify and hold eCHARGE(TM) harmless from any claim or liability
relating to any such dispute.
D. Merchant agrees to provide eCHARGE(TM), upon demand, with any
information, evidence, assignments or other assistance eCHARGE(TM) may need to
help resolve any customer billing disputes regarding the nature, quality or
performance of the goods or services, or in connection with any return or
rejections of such goods and services.
5. WARRANTY, LIMITATION OF LIABILITY AND INDEMNIFICATION
A. No Warranty: eCHARGE(TM) MAKES NO WARRANTY, EXPRESSED OR IMPLIED, WITH
RESPECT TO CALL VOLUMES OR TO THE QUALITY, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR SUITABILITY OF CALLERS FOR CUSTOMER'S APPLICATION,
PRODUCTS OR SERVICES.
B. Limitation of Liability: eCHARGE(TM)'S ENTIRE LIABILITY RESULTING FROM
eCHARGE(TM)'S FAILURE TO PERFORM ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT
SHALL BE CUSTOMER'S ACTUAL, DIRECT DAMAGES AS MIGHT BE PROVABLE IN A COURT OF
LAW, BUT NOT TO EXCEED THE AMOUNT PAID TO eCHARGE(TM) BY CUSTOMER FOR SERVICES
PURSUANT TO THIS AGREEMENT. IN NO EVENT SHALL eCHARGE(TM) BE LIABLE FOR
INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE OR SPECIAL, EXEMPLLARY OR PUNITIVE
DAMAGES OR FOR LOST PROFITS, SAVINGS OR REVENUES OF ANY KIND, WHETHER OR NOT
eCHARGE(TM) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE
LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 5 SHALL APPLY (i) REGARDLESS
OF THE FORM OF CLAIM OR ACTION, AND (ii) WHETHER ORN OT DAMAGES WERE
FORESEEABLE. IN NO EVENT SHALL eCHARGE(TM) BE LIABLE FOR: (i) ANY BILLING,
COLLECTION, TECHNICAL, OR OTHER MISTAKES, ERRORS, OR OMISSIONS OF CARRIER; OR
(ii) CLAIMS, DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY OTHER PARTY.
C. Indemnification/Hold Harmless: Merchant shall indemnify and hold
harmless eCHARGE(TM) , its agents, employees, officers and directors from and
against any and all fines, penalties, losses, damages, injuries, claims,
(including attorney's fees) or other liabilities arising out of or in connection
with this Agreement or the performance of this Agreement and caused by the acts
of omission, negligent or otherwise, of Merchant or a subcontractor employee or
an agent of Merchant indicating but not limited to claims of third parties
resulting from or in connection with the Merchant's products, services, messages
or Program(s). Caller contracts, promotions and advertising disseminated,
broadcast, furnished or supplied by Merchant or any employee or customer or any
one of them or any claims for trademark or patent infringement or any claim for
libel or slander or any failure of the Program(s) t comply with applicable law.
Non-payment of remittance: eCHARGE(TM) will not be liable for payment of any
remittance or portion thereof which result from: (i) transactions that are
ineligible, fraudulent or illegal, or that violate the rules of the CARRIER,
(ii) transactions the consumer claims to have been performed without their
consent, (iii) transactions in which the Consumer disputes any liability because
the merchandise or services were not received or were returned, rejected, or
defection, or because you have failed to perform any obligation in connection
which such merchandise or services.
6. TERMINATION
A. By eCHARGE(TM): eCHARGE(TM)" may terminate this Agreement seize any
incoming funds and disconnect Merchant's Program immediately if: (i) Merchant
fails to pay any charge when due; (ii) Merchant significantly changes the scope
or focus of the program/application without the prior written consent of
eCHARGE(TM) and the CARRIER (where required); (iii) breaches any part of this
Agreement and such condition continues un-remedied for ten (10) days after
receipt of written notice; (iv) your insolvency, bankruptcy, receivership, or
dissolution; (v) your actual or attempted assignment of the Agreement or any of
you duties under this Agreement to another party, except as specified in section
7(B) of this Agreement; (vi) your making gross misrepresentations to actual or
prospective customer that have not been remedied within 30 days; (vii) your
death or incapacity if you are a natural person; or (viii) if the Merchant
terminates service due to (1)adverse affect of Merchant's Program on CARRIER's
tariffed services, public image or goodwill, (2) a LEC's failure to provide
necessary Billing Services at reasonable rates, or (3) receipt of complaints
regarding Merchant messages, representations, promotions, advertising, products
or services or if claims are made arising from them.
B. Effect of Termination: Upon termination by eCHARGE(TM), Merchant shall
be liable for any applicable charges, including termination charges. In
addition, eCHARGE(TM) may terminate this Agreement without cause with at least
thirty (30) days prior written notice to Merchant specifying the exact date and
time of such termination. Notwithstanding any Notice of Termination under
Agreement, this Agreement shall remain effective with respect to any transaction
occurring prior to such termination for a period of one year.
C. BY Merchant: If eCHARGE(TM) fails to perform or observe any material
term or condition of this agreement and such failure continues un-remedied for
thirty (30) days after receipt of written notice, Merchant may cancel this
Agreement without liability for cancellation or termination charges.
D. Failure to Activate 900 or other Number Service(s): This Agreement will
automatically terminate if Merchant does not activate the service within sixty
(60) days of original 900 or other number(s) assignment unless mutually extended
in writing by both parties hereto.
7. MISCELLANEOUS
A. Force Majeure: Neither party nor their respective affiliates,
subsidiaries, or subcontractors shall have liability for delays or damages due
to: fire, explosion, lightning, pest damage, power surges or failures, strikes
or labor disputes, water, acts of God, the elements, war, civil disturbances,
acts of civil or military authorities or the public enemy, inability to obtain
parts or supplies or network access, transportation (acillities, fuel or energy
shortages, acts or omissions of any common CARRIER or its Agent (including the
local exchange companies), or other causes beyond a party's control whether or
not similar to the foregoing.
B. Neither party may assign this Agreement without the prior written consent
of the other party, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, eCHARGE(TM) may assign this Agreement, without
consent to: (i) a subsidiary, affiliate, or parent company; (ii) any firm,
corporation or entity which eCHARGE(TM) controls, is controlled by, or under
common control with; (iii) any partnership in which eCHARGE(TM) has a majority
interest; or (iv) to any entity which succeeds to all or substantially all of
eCHARGE(TM) assets whether by merger, sale or otherwise.
C. Merchant Investigations: Merchant acknowledges and agrees that it is
entering into the Agreement based upon its own independent decision and
investigation.
D. Severability: If any portion of the Agreement is found to be invalid or
unenforceable, the parties agree that the remaining portions shall remain in
effect. The parties further agree that in the event such invalid or
unenforceable portion is an essential part if this Agreement, they will
immediately begin negotiations for a replacement.
E. Modification and Waiver: This Agreement shall not be modified, altered,
changed or amended in any respect, except where initialed by both parties.
F. Notices: Any notice required by this Agreement will be effective and
deemed delivered three (3) business days after posting with the United States
Postal Service when mailed by certified mail, return receipt requested, properly
addressed and with the correct postage, one (1) business day after pick-up by
the courier service when sent by overnight courier, properly addressed and
prepaid on one (1) business day after the date of the sender's electronic
confirmation or receipt when sent by facsimile transmission. Notices will be
sent to the address or FAX numbers set forth in this Agreement, unless either
party notifies the other in writing of an address or FAX number change.
G. Limitation of Actions: Any legal action brought by Merchant against
eCHARGE(TM) with respect to this Agreement must being within two years after the
cause of action arises.
H. Governing Law/Versus Interpretation: This Agreement shall be governed by
and construed in accordance with the laws of the State of Washington. Any
litigation relative to this Agreement shall be litigated in the appropriate
legal forum in Seattle, Washington, or the U.S. District Court for the District
of Washington.
EXHIBIT B
DESCRIPTION OF SERVICES
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eCHARGE(TM) will provide to merchant the following services:
1) Contracted billing and collection via the CARRIER as specified in the
Merchant Services Agreement
2) Transaction processing through the eCHARGE(TM) Secure Billing System
3) eCHARGE(TM)/Merchant web page interface
4) Known Uncollectible/Recharge Blocking
5) Transaction documentation
6) Customer support services
<PAGE>
ECHARGE(TM) CORPORATION
MERCHANT SERVICES AGREEMENT
Proprietary and Confidential
EXHIBIT A
PRICES
For Services provided for in this agreement:
1) Merchant agrees to pay eCHARGE(TM) the following amounts upon execution
of this agreement:
(a) Registration Fee REDACTED
(b) Security Deposit: $_____________
(c) Programming: $_____________
(d) Interface: $_____________
2) Merchant agrees to pay eCHARGE(TM) the following amounts monthly:
(a) Fixed Monthly Service Fee REDACTED
This fee is refundable if the total transaction volume exceeds REDACTED per
month.
3) Merchant agrees to pay eCHARGE(TM) the following amounts on a per
transaction basis:
1-499 transactions REDACTED per Transaction
500-999 transactions REDACTED per Transaction
1000+ transactions REDACTED per Transaction
4) Merchant acknowledges and understands that additional fees will be levied
by eCHARGE(TM) to their customers according to the following schedule:
For transactions REDACTED or REDACTED REDACTED per transactions
For transactions from REDACTED to REDACTED REDACTED per transaction
For transactions from REDACTED to REDACTED REDACTED per transaction
Attached to and made part of that certain Merchant Services Agreement dated:
__________ _________ ____________
Month Day Year
______________________________________ ____________________________________
Approved by Merchant Approved by eCHARGE(TM)
<PAGE>
ECHARGE(TM) CORPORATION
AGENT SERVICES AGREEMENT
Proprietary and Confidential
This Agent Agreement (this "Agreement"), dated as of 07-29-98, is between
eCHARGE(TM) Corporation, a Washington corporation (eCHARGE) and
Net Taxi, 2165 S. Bascom Avenue, Campbell, CA 95009 ("Agent").
Whereas, eCHARGE(TM) is a financial transaction company specializing in
Internet billing and collections and the Agent wishes to act as an agent for
eCHARGE(TM) in the sale of the eCHARGE(TM) system to third parties,
Now, therefore, the parties agree to the following:
1. APPOINTMENT. eCHARGE(TM) hereby appoints the Agent as its
non-exclusive agent to incorporate eCHARGE(TM) Billing System within Agents
commerce products on the terms and conditions contained herein.
1.1 Agent will develop a modified version of its commerce products or
technologies that will integrate the eCHARGE(TM) Billing System. The
development will result in a version of the product that can be offered as
optional functionality for Merchants or end-users who can install the
eCHARGE(TM) Billing option in an intuitive and/or prompted manner.
1.2 Upon completion of the development of the modified product, Agent will
produce a demonstration, either scripted and live, or self-running, that
illustrates the functionality and interoperation of the product incorporating
the eCHARGE(TM) System.
1.3 Agent shall designate a contact who is knowledgeable about the
functionality and interoperation of its products with the eCHARGE(TM) Billing
System and who is accessible to respond to inquiries.
2. ORDERS.
2.1 Agent will submit orders from potential eCHARGE(TM) Merchant customers
to eCHARGE(TM) at its address or fax number set forth on the signature page
hereof, on completed order forms provided by eCHARGE(TM), eCHARGE(TM) may change
order submission procedures and forms at any time upon reasonable written
notice.
2.2 All orders are subject to the final approval of eCHARGE(TM) and its
telephone carrier(s), and either eCHARGE(TM) or any carrier may reject any
order in its sole discretion.
2.3 Agent acknowledges that eCHARGE(TM) shall be under no obligation to
provide any services to any customer (including without limitation Agent, in the
event that Agent wishes to become a customer of eCHARGE(TM)) until such customer
has executed eCHARGE(TM)'s standard forms of Master Agreement and Merchant
Services Agreement, or some variation thereof which is satisfactory to
eCHARGE(TM).
3. COMMISSIONS.
3.1 Subject to Section 3.3, during the term of this Agreement and for a
period of one year after the expiration or termination hereof, eCHARGE(TM) will
pay Agent commissions on the accounts of eCHARGE(TM) customers introduced to
eCHARGE(TM) by Agent in accordance with the Agent Fee Schedule set forth in
Exhibit A. Such fees may be revised annually by eCHARGE(TM) upon written notice
to the Agent, provided that in no event may they be reduced more than 10%
without Agent's prior written consent.
3.2 Commissions shall be paid on the fifteenth day of each month for all
transactions occurring during the previous calendar month. In the event that
any amount payable to Agent is not paid within 30 days of is due date, then
interest at the rate of 10% per annum (or such lesser amount as constitutes the
maximum rate allowed by law) will accrue on the unpaid amount until it is paid.
3.3 eCHARGE(TM) may cease to pay commissions to Agent in the event that
Agent violates its covenant set forth in section 4.
4. NON-COMPETITION. During the term of, or during the one year period after
the expiration or termination of, this Agreement, Agent shall not contact any of
the eCHARGE(TM) customers procured pursuant hereto for the purpose of inducing
them to switch to another provider of Internet billing services.
5. TRADE NAMES AND MARKS. eCHARGE(TM) grants Agent a limited license to use
its name and federally registered marks only in connection with obtaining orders
under this Agreement. This limited license will terminate upon the earlier of
(a) the expiration or termination of this Agreement and (b) eCHARGE(TM)'s giving
Agent written notice to stop using its trade names and service marks.
6. TERMS AND TERMINATION.
6.1 The Term of this Agreement shall be for a period of one year from the
date hereof. Thereafter, it will continue on a month-to-month basis until it is
terminated by either party upon at least thirty days prior written notice to the
other party or by eCHARGE(TM) in accordance with Section 6.2 below.
6.2 eCHARGE(TM) may terminate this Agreement upon written notice to Agent in
the event that Agent violates the covenant set forth in Section 4.
7. INDEPENDENT CONTRACTOR. The Agent is an independent contractor
hereunder. This Agreement does not create any partnership or agency
relationship between the parties, and neither party will have the right, nor
will it attempt, to bind, act for, or otherwise make representations on behalf
of the other party, unless expressly agreed to in a writing signed by the
parties.
8. eCHARGE(TM) will allocate a Marketing Flex Fund in the amount of REDACTED
to Agent upon the signing of the Agent Agreement. The fund can be used for
mutually agreed upon payments or credits in the following manner:
- - Buy down of Transaction charges for Merchants
- - Purchase of Banner Advertising on and/or of the placement of the
eCHARGE(TM) logo on the front page of Agent web site for a period of at least
six months or purchase Co-op Advertising in Trade Magazines.
- - Payment for a third party software Integration technical team to
accelerate the implementation of the eCHARGE(TM) billing option.
- - Joint promotional programs such as Trade Shows, Seminars, International
Marketing programs or other items as jointly agreed upon between Agent and
eCHARGE(TM) .
- - This agreement must be signed and returned to eCHARGE(TM) before July 28,
1998 to take advantage of the Marketing Flex Fund.
- - Upon execution of this Agreement, eCHARGE(TM) agrees to allocate REDACTED
to advertising on the nettaxi.com website. Payments of the REDACTED will be as
follows:
a. first installment of REDACTED upon signing will be paid to Nettaxi.
b. balance of REDACTED paid out over next four months, as monthly
installments of REDACTED each.
9. MISCELLANEOUS
9.1 eCHARGE(TM) reserves the right to review and approve all marketing
programs designed to promote eCHARGE(TM) or the Agent's relationship with
eCHARGE(TM) .
9.2 Agent agrees to prominently display the eCHARGE(TM) logo on its site,
and to provide eCHARGE(TM) with a banner ad on their home page.
9.3 No failure of any party to exercise any right or remedy hereunder shall
constitute a waiver of such or any other right or remedy on any subsequent
occasion.
9.4 This Agreement inures to the benefit of and binds the parties and their
successors and assigns.
9.5 This Agreement may be amended only by an instrument in writing signed by
both parties.
9.6 If any provision hereof is determined to be invalid or unenforceable,
such provision shall be deemed to be severably from the remainder of this
Agreement and shall not cause the invalidity or unenforceability of the
remainder of this Agreement.
9.7 This Agreement contains the entire understanding between the parties
concerning the subject matter hereof.
10. NOTICES. All notices delivered pursuant to the provisions hereof shall
be deemed delivered when (a) actually delivered by hand, (b) ten days after
being sent postage prepaid by United States first class mail, postage prepaid,
(c) or two days after being sent via a nationally recognized courier service, or
(d) one day after being sent by facsimile, to the recipient's address or
facsimile number set forth on the signature page hereof, or to such other
address or facsimile number of which the recipient last shall have notified the
other party in writing.
IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to sign this Agreement as of the date first above written.
eCHARGE(TM) Corporation AGENT
______________________________ _________________________________
Authorized Signature Authorized Signature
______________________________ _________________________________
Title Title
______________________________ _________________________________
Date Date
<PAGE>
EXHIBIT A - AGENT FEE SCHEDULE
MERCHANT FEES (PAID BY MERCHANT)
- ------------------------------------
PRICING SCHEDULE
AGENT AGENT ECHARGE
CHARGES RECEIVES RECEIVES
1) REGISTRATION FEE REDACTED REDACTED REDACTED
2) MONTHLY RECURRING (IF
UNDER $500 PER CYCLE) REDACTED REDACTED REDACTED
3) BILLING FEE (PERCENT OF
GROSS TRANSACTIONS)
REDACTED TRANSACTIONS PER MONTH REDACTED
REDACTED REDACTED
REDACTED REDACTED
CONSUMER FEES (PAID BY CONSUMER)
- ------------------------------------
TRANSACTION VALUE PRICING SCHEDULE
SECURE TRANSACTION FEES AGENT ECHARGE
(0-10000 TRANSACTIONS) FEE RECEIVES RECEIVES
REDACTED REDACTED REDACTED REDACTED
REDACTED REDACTED REDACTED REDACTED
REDACTED REDACTED REDACTED REDACTED
SECURE TRANSACTION FEES
(10001-20000 TRANSACTIONS)
REDACTED REDACTED REDACTED REDACTED
REDACTED REDACTED REDACTED REDACTED
REDACTED REDACTED REDACTED REDACTED
SECURE TRANSACTION FEES
(20001+ TRANSACTIONS)
REDACTED REDACTED REDACTED REDACTED
REDACTED REDACTED REDACTED REDACTED
REDACTED REDACTED REDACTED REDACTED
CONVERSION AGREEMENT
--------------------
This Agreement is made and entered Into by and between NETTAXI ONLINE
COMMUNITIES INC, a Delaware corporation ("NeTTaxi"), and SSN Properties, LLC, a
California limited liability company (SSN'), with respect to that certain Asset
Purchase Agreement dated as of October 1. 1997, by and between the parties
hereto and that certain Convertible Secured Promissory Note of the same date and
in the form of Exhibit D to the Asset Purchase Agreement.
RECITALS:
WHEREAS, under the terms of the Asset Purchase Agreement and under the
Convertible Secured Promissory Note, SSN has the right to convert up to fifty
percent (50%) of the amount of the Convertible Secured Promissory Note into
common stock of NeTTaxi at $1.00 per share, and
WHEREAS, NeTTaxi is additionally indebted to SSN in the amount of $70,000 net of
the legal fees payable REDACTED; and
WHEREAS, the parties hereto desire to dispose of and conclude any and all
outstanding matters and issues I between them respecting the Asset Purchase
Agreement and the Convertible Secured Promissory Note;
NOW, THEREFORE, in consideration of the premises and mutual representations,
covenants and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which Is hereby acknowledged, the
parties hereto agree as follows:
Section 1. CONVERSION OF THE CONVERTIBLE SECURED PROMISSORY NOTE. The
principal of the Convertible , Secured Promissory Note, $1,020,000, and accrued
. interest, through 307 days to September 4, 1998 of $85,792 is hereby agreed to
be; converted into 1,105,792 shares of the common stock of NeTTaxi.
Section 2. PAYMENT OF $70,000. Additionally, SSN agrees to accept in
full payment for the outstanding account. receivable in the amount of $70,000 an
additional 70,000 shares of the common stock of NeTTaxi, for an aggregate amount
of 1,175,792.
Section 3. RELEASE OF ALL CLAIMS AND SECURITY INTERESTS. In
consideration of the conversion and payment set forth in Sections I and 2
hereinabove, SSN hereby accepts such payments In stock in lieu of cash and
hereby releases and discharges NeTTaxi from any and all claims, causes of action
or other obligations respecting said Convertible Secured Promissory Note and
account'. receivable.
Section 4. INDEMNIFICATION. SSN agrees to indemnify and hold harmless
NeTTaxi and its respective employees, directors, officers, agents or affiliates
from and against any losses, claims, damages, liabilities, joint and several,
including all legal and other expenses reasonably incurred in connection with
any and all obligations or claims for payment or causes of action against
NeTTaxi arising out of the assets or the transaction represented by the Asset
Purchase Agreement to the extent of the indemnification contained in the Asset
Purchase Agreement
Section 5. SEVERABILITY. If any provision of this Agreement shall be
held or made invalid by a statute, rile, regulation, decision of a tribunal or
otherwise, the remainder of this Agreement shall not be affected thereby and. to
this extent, the provisions of this Agreement shall be deemed to be severable,
Section 6. AUTHORIZATION / ADDITIONAL AGREEMENTS. SSN and NeTTaxi represent
and warrant that each has all requisite power and authority, and all necessary
authorizations, to enter into and carry out the terms and provisions of this
Agreement. SSN hereby undertakes and
<PAGE>
agrees to execute and deliver any additional agreements required to carry out
the terms of this Agreement
SECTION 7. SUCCESSORS. This Agreement and all rights, liabilities and
obligations hereunder shall be binding upon and inure to the benefit of each
party's successors but may not be assigned without the prior written approval of
the other party. Any such approval shall not be unreasonably withheld.
Section 8. HEADINGS. The descriptive headings of the sections of this
Agreement are inserted for convenience only, do not constitute a part of this
Agreement and shall not affect in any way the meaning or interpretation of this
Agreement.
Section 9. NOTICES. Any notice or other communication to be given to NeTTaxi
hereunder may be given by delivering the same in writing to 2165 South Bascom
Avenue, Campbell, California 95008, and any notice or other communication to be
given to SSN may be given by delivering the same to SSN Properties, LC, 14836
Three Oaks Court, Saratoga, California 95070, or in each case, such other
address of which a party shall have received notice. Any notice or other
communication hereunder shall be deemed given three days after deposit in the
mail if mailed by certified mail, return receipt requested, or on the day after
deposit with an overnight courier service for next day delivery, or on the date
personally delivered.
EXECUTE this 4th day of September, 1998.
NETTAXI ONLINE COMMUNITES, INC. SSN PROPERTIES, LLC
By: /s/ Robert A. Rositano, Jr. By: /s/ Robert A. Rositano, Sr.
------------------------------- ----------------------------
Robert A. Rositano, Jr. Robert A. Rositano, Sr.
Chairman and Chief Executive Officer Manager
2
<PAGE>
[INFO SPACE.COM]
INTERNET INFOSPACE CONTENT (WORLD WIDE WEB SITE) DISTRIBUTION AGREEMENT
-----------------------------------------------------------------------
THIS AGREEMENT, dated as of October 8, 1998, is made by and between
InfaSpace.com, Inc., a Delaware corporation, ("Company"), with offices at 15375
NE 901 Street, Redmond, WA 98052, and Net Taxi On-line Communities, a Delaware
--------
corporation ("Company"), with offices at 2165 S. Bascom Avenue, Campbell, CA
95008.
This Agreement is entered into with reference to the following facts:
A. InfoSpace maintains on certain locations of its Web Sites (as
defined below) and makes available to Internet users certain content, resources,
archives, indices, catalogs and collections of information (collectively, such
materials are identified in Exhibit A and referred to herein as the "Content").
B. InfoSpace wishes to grant certain rights and licenses to Company
with respect to access to the Content and certain other matters, and Company
wishes to grant certain rights and licenses to InfoSpace with respect to the
Company Web Sites (as defined below) and certain other matters, as set forth in
this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties agree as follows:
AGREEMENT
SECTION 1. DEFINITIONS.
As used herein, the following terms have the following defined meanings:
"ADVERTISING REVENUE" means the net received (i.e., gross revenues less
any taxes) by a party (the "Selling Parry") for delivering Impressions of Banner
Advertisements served on Results Pages,
"BANNER ADVERTISEMENT" means a rotating banner advertisement of 600 x
400 pixels located at the top and/or bottom of a Web Page.
"CO-BRANDED PAGES" means, collectively, Query Pages and Results Pages.
"COMPANY MARKS" means those Trademarks of Company set forth on Exhibit
B hereto and such other Trademarks (if any) as Company may from time to time
notify InfoSpace in writing to be "Company Marks" within the meaning of this
Agreement.
"COMPANY WEB SITES" means, collectively, all Web Sites maintained by or
an behalf of Company and its affiliates,
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<PAGE>
"GRAPHICAL USER INTERFACE" means a graphical user interface, to be
designed by Company and InfoSpace and implemented by INFOSPACE pursuant to the
terms of this Agreement, that contains or implements branding, graphics,
navigation, content or other characteristics or features such that a user
reasonably would conclude that such interface is part of the Company Web Sites.
"IMPRESSION" means a user's viewing of any discrete screen containing
any Banner ,advertisement an a Results Page.
"INFOSPACE MARKS" means those Trademarks of InfoSpace (if any) set
forth on Exhibit B hereto and such other Trademarks a3 InfoSpace may from time
to TIME notify Company in writing to be "Company Marks" within the meaning of
this Agreement.
"INFOSPACE WEB SITUATION" means, collectively: (a) the Web Site the
primary home page of which is located at ERROR! BOOKMARK NOT DEFINED.; and (b)
other Web Sites maintained by InfoSpace and its affiliates.
"INTELLECTUAL PROPERTY RIGHTS" means any patent, copyright, rights in
Trademarks, trade secret rights, moral rights and other intellectual property or
proprietary rights arising under the laws of any jurisdiction.
"PERSON" means any natural person, corporation, partnership, limited
liability company or other entity.
"QUERY PAGE" means any page hosted on the Company Web Sites which
incorporates the Graphical User Interface and on which users may input queries
and starches relating to the Content.
"RESULTS PAGE" means any page hosted on the InfoSpace Web Sites which
incorporates the Graphical User Interface and displays Content in response. to
queries and searches made on a Query Page.
"TRADEMARKS" means any trademarks, service marks, trade dress, trade
names, corporate names, proprietary logos or indicia and other source or
business identifiers.
"WEB SITE" means any point of presence maintained an the Internet or on
any other public data network, With respect to any Website maintained on the
World Wide Web, such Website includes all HTML pages (or similar unit of
information presented in any relevant data protocol) that either (a) are
identified b "the same second-level domain (such as infospace.com) or by the
same equivalent level identifier in any relevant address scheme, or (b) contain
branding, graphics, navigation or other characteristics such that a user
reasonably would conclude that the pages are pan of in integrated information or
service offering.
2. CERTAIN RIGHTS GRANTED.
2.1 INFOSPACE GRANT. Subject to the term and conditions of this
Agreement, InfoSpace hereby grants to Company the following rights;
(a) the right to include on the Company Web Sites hypertext links
(whether in graphical, text or other format) which enable "point and click"
access to locations of the InfoSpace Web Sites specified by InfoSpace (and
subject to change by InfoSpace from time to time);
(b) the right to permit users to link to Results Pages via Query Pages
hosted on the Company Web Sites; and
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<PAGE>
(c) the right to serve Banner Advertisements directly an the Co-branded
Pages as provided in Section 4.
2.2 Company Grant. Subject to the terms and conditions of this
Agreement, Company hereby grants InfoSpace the following rights:
(a) the right to include on the InfoSpace Web Sites hypertext links
(whether in graphical, text or other format) which enable "point and click"
access to locations of the Company Web Sites specified by Company (and subject
to change by Company from time to time);
(b) the right to serve Banner Advertisements directly an the Co-branded
Pages as provided in Section 4; and
(c) the right to track the number of Impressions of Banner
Advertisements served by Company to Results Pages.
2.3 LIMITATIONS. Company and its affiliates shall have no right to
reproduce or sub-license, TC-sell or otherwise distribute all or any portion of
the Content to any Person via the Internet (including the World Wide Web) or any
successor public or private data network. In addition, neither party shall have
any right to: (a) edit or modify any Banner Advertisements served a Co-branded
Page (but without limiting such party's right to edit or modify any Banner
Advertisements pursuant to Section 4. 1); or (b) remove, obscure or alter any
notices of Intellectual Property Rights appearing in or an any materials
(including Banner Advertisements) provided by the other party.
2.4 COMPANY MARKS LICENSE. Subject to Section 2.6, Company hereby
grants InfoSpace the right to use, reproduce, publish, perform and display the
Company Marks: (a) on the InfoSpace Web Sites in connection with the posting of
hyperlinks to the Company Web Sites; (b) in and in connection with the
development, use, reproduction, modification, adaptation, publication, display
and performance of the Graphical User Interface and Results Pages; and (c) in
promotional and marketing materials, content directories and indexes, and
electronic printed advertising, publicity, press releases, newsletters and
mailings about InfoSpace.
2.5 INFOSPACE MARKS LICENSE. Subject to Section 2.6, InfoSpace
hereby grants the right to use, reproduce, publish, perform and display the
InfoSpace Marks: (a) on the Company Web Sites in connection with the posting of
hyperlinks to the InfoSpace Web Sites; (b) in and in connection with the
development use, reproduction in promotional and marketing materials, content
directories and indexes, and electronic and printed advertising, publicity,
press releases, newsletters and mailings about Company.
2.6 APPROVAL OF TRADEMARK USAGE. InfoSpace shall not use or exploit in
any manner any of the -Company Marks, and Company shall not use or exploit in
any manner any of the InfoSpace Marks, except in such manner and media as the
other party may consent to in writing, which consent shall not be unreasonably
withheld or delayed. Either party may revoke or modify any such consent upon
written notice to the other party.
2.7 NONEXCLUSIVELY. Except as expressly provided in Section 4, 1,
each party acknowledges and agrees that the rights granted to the other party in
this Section 2 are non-exclusive, and that, without limiting the generality of
the foregoing, nothing in this Agreement shall be deemed or construed to
prohibit either party from participating in similar business arrangements as
THOSE described herein including soliciting third parry advertisements or other
materials, serving advertisements or other materials to third parties' Web
Sites, or hosting or permitting third parties to place advertisements on such
party's Web Site, whether or not in each such case, such advertisements are
competitive with the products, services or advertisements of the other party.
3
<PAGE>
3. CERTAIN OBLIGATIONS OF THE PARTIES.
3.1 GRAPHICAL USER INTERFACE AND CO-BRANDED PAGES. Company and
InfoSpace will cooperate to design the user-perceptible elements of the
Graphical User Interface, with the goals of. (a) conforming the display output
of the "look and feel" associated with the applicable Company Web Sites; and (b)
maximizing the commercial effectiveness thereof. Following agreement by the
parties upon the design specifications thereof, InfoSpace will use commercially
reasonable efforts to develop the Graphical User Interface and to implement the
same on Co-brand Pages. InfoSpace shall have no liability or obligation for
failure to develop or implement the Graphical User Interface or any Co-branded
Pages as contemplated by this Section 3. 1, or for any nonconformity with the
design specifications agreed upon by the parties, provided InfoSpace has used
commerciallyreasonable efforts to develop and implement the same as provided in
----------
this Section 3. 1.
3.2 COMPANY OBLIGATIONS. Company shall integrate links to pages of
the InfoSpace Web Sites determined by InfoSpace (and subject to change by
InfoSpace from time to time) on the primary home page for each of the Company
Web Sites. In addition, the InfoSpace logo and at least one other link pointing
to pages of the InfoSpace Web Sites specified by InfoSpace (and subject to
change by InfoSpace from time to time) will be present an all Co-branded Pages.
Each link contemplated by this Section 3.2 shall be: (a) prominent in relation
to links to other Web Sites on the applicable page (and in any event at least as
prominent as any link to any third party Web Site); and (b) above-the-fold
(i.e., immediately visible to any user accessing the applicable page without the
necessity of scrolling downward or horizontally).
3.3 ACCESSIBILITY OF WEB SITES. Each party will use commercially
reasonable efforts to ensure accessibility of its Web Sites (including, in the
case of InfoSpace, the accessibility of the Content).
3.4 IMPRESSION INFORMATION. InfoSpace shall track, and within
fifteen (15) days after the end of each calendar quarter, provide to the Company
remotely and in electronic form, the number of Impressions served by Company on
Results Pages.
3.5 Publicity. The parties may work together to issue publicity and
general marketing communications concerning their relationship and other
mutually agreed-upon matters, provided, however, that neither party shall have
any obligation to do so. In addition, neither party shall issue such publicity
and general marketing communications concerning their relationship without the
prior written consent of the other party (not to be unreasonably withheld).
Neither party shall disclose the terms of this Agreement to any third party
other than its outside counsel, auditors, and financial advisors, except as
required by law.
4. ADVERTISING AND REVENUE SHARE.
4.1 PLACEMENT OF BANNER ADVERTISEMENTS. Each party shall have the
right to serve Banner Advertisements on the Co_6nded Pages. The appearance of
the Banner Advertisements will be as reasonably determined by the party serving
such Banner Advertisements; provided, that InfoSpace may reject any Banner
Advertisement to be served by Company on any Results Page, and Company may
reject any Banner Advertisement to be served by InfoSpace an any Query Page, if
such Banner Advertisement would materially adversely affect the download time or
performance of such page. (Each party further agrees that it shall not serve to
any Co-branded Page any Banner Advertisement which contains any link to any Web
Site maintained by or on behalf of, or which is otherwise intended to promote
the products or services of, any Person which could reasonably be deemed to be a
material competitor of such party.)
4.2 REMUNERATION. The parties agree to share in the Advertising
Revenues as act forth on Exhibit C. Advertising Revenue share payments will be
reconciled and paid within thirty (30) days following the calendar quarter in
which the applicable Advertising Revenues are received. The Selling Party will
provide with each such payment a report setting forth Advertising Revenues
received by it for such quarter and the percentage thereof payable to the other
party.
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<PAGE>
4.3 RECORDS AND AUDIT; LATE PAYMENTS. During the Term, each party
shall maintain accurate records of Banner Advertisements served to the Results
Pages, Impressions thereof, and Advertising Revenues received and calculations
of the fees payable to the other party pursuant to Section 4.2. either party, at
its expense, and upon ten (10) days' advance notice to the other party, shall
have the right once during the Term to examine or audit such records in order to
verify the figures reported in any quarterly report and the amounts owned to
such party under this Agreement Any such audit shall be conducted, to the extent
possible, in a mariner that does not interfere with the ordinary business
operations of the audited party. In the event that any audit shall reveal an
underpayment of more than ten percent (10%) of the amounts due to the auditing
party for any quarter, the other party will reimburse such party for the
reasonable cost of such audit.
5. WARRANTIES, INDEMNIFICATION AND LIMITATION OF DIRECT LIABILITY
5.1 WARRANTIES
Each party to THIS Agreement represents and warrants to the other party
that
a) it has the full corporate right, power and authority to enter into
this Agreement and to perform the acts required of it hereunder;
b) its execution of THIS Agreement by such party and performance of its
obligations hereunder,
do not and will not violate any agreement to which it is a party or by
which it is bound;
c) when executed and delivered, this Agreement will constitute the
legal, valid and binding obligation of such party, enforceable against it in
accordance with its terms; and
d) its Web Sites and the content contained therein, and Banner
Advertisements served by it to the Co-branded Pages, will not contain any
material that is obscene, libelous or defamatory, or infringing of any third
party Intellectual Property Rights.
5.2 INDEMNIFICATION. Each party (the "Indemnifying Party") will
defend, indemnify and hold harmless the other parry (the "IndemnifiedParty"),
------------
and the respective directors, officers, employees and agent of the Indemnified
Party, from and against any and all claims, costs, losses, damages, judgments
and expenses (including reasonable attorneys' fees) arising our of or in
connection with any third-party claim alleging any breach of such parties
representations of warranties or covenants set forth in this Agreement. The
Indemnified Party shall promptly notify the Indemnifying Party of any such claim
of which it becomes aware and shall: (a) at the Indemnifying Party's expense,
provide reasonable cooperation to Such other in connection with the defense or
settlement of any such claim; and (b) at the Indemnified Party's expense, be
entitled to participate in the defense of any such claim. The Indemnifying party
shall not acquiesce to any judgment or enter into any settlement that adversely
affects the Indemnified Party's rigbts, or interests without prior written
consent of the Indemnified Party.
5.3 LIMITATION OF LIABILITY; DISCLAIMER.
(a) Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO
THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY
DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES), ARISING FROM ANY PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED
TO, LOSS OF REVENUE OR ANTICIPATED PROMS OR LOST BUSINESS.
(b) No Additional Warranties. EXCEPT AS SET FORTH IN THIS AGREEMENT,
NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED (INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND
5
<PAGE>
IMPLIED WARRANTIES APUSING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.),
AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS A-NY CLAIM IN TORT (INCLUDING
NEGLIGENCE), IN EACH CASE, REGARn1NG THEIR WEB SITES, ANY PRODUCTS OR SERVICES
DESCRI33ED THEREON, ANY BANNER ADVERTISEMENTS, OR ANY OTHER ITEMS OR SERVICES
PROVIDED UNDER THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
COMPANY ACKNOWLEDGES THAT THE INFOSPACE WEB SITES AND THE CONTENT (INCLUDING ANY
SERVERS OR OTHER HARDWARE, SOFTWARE AND ANY OTHER ITEMS USED OR PROVIDED BY
INFOSPACE OR ANY THIRD PARTIES IN CONNECTION WITH HOSTING THE INFOSPACE WM SITES
OR THE CONTENT OR PERFORMANCE OF ANY SERVICES HEREUNDER) ARE PROVIDED 'AS IS "
AND THAT INFOSPACE MAKES NO WARRANTY THAT IT WILL CONTINUE TO OPERATE ITS WEB
SITES TN THEIR CURRENT FORM, THAT ITS WEB SITES WILL BE ACCESSIBLE WITHOUT
INTERRUPTION, THAT THE SUES WILL MEET THE REQUIREMENTS OR EXPECTATIONS OF THE
OTHER PARTY, OR THAT THE CONTENT OR ANY OTHER ANY MATERIALS ON ITS WEB SITES OR
THE SERVERS AND SOFTWARE THAT MAKES ITS WEB SITES AVAILABLE ARE FREE FROM
ERRORS, DEFECTS, DESIGN FLAWS OR OMISSIONS.
6. TERM AND TERMINATION.
6.1 TERM. The Term shall commence an the date of this Agreement
and, unless earlier terminated or extended as provided below, shall end upon the
one year anniversary of this Agreement,
6.2 TERMINATION. Either party may terminate the Term upon not less
than thirty (30) days prior written notice to the other party of any material
breach hereof by such other party, provided that such other parry has not cured
such material breach within such thirty (30) day Period.
6.3 EFFECT OF TERMINATION. Upon termination or expiration of the
Term for any reason, all rights and obligations of the parties under this
Agreement shall be extinguished, except that: (a) all accrued payment
obligations hereunder shall survive such termination or expiration; and (b) the
rights and obligations of the parties under Sections 4.2,4.3, 5, 6,7 and 8 shall
survive such termination or expiration.
7. INTELLECTUAL PROPERTY
7.1 COMPANY. As between the parties, Company retains all right,
title and interest in and to the Company Web Sites (including, without
limitation, any and all content data, URLs, domain names, technology, software,
code, user interfaces, "look and feel", Trademarks and other items posted
thereon or used in connection or associated therewith; but excluding any Content
or other items supplied by InfoSpace) and the Company Marks along with all
intellectual Property Rights associated with any of the foregoing. All goodwill
arising out of InfoSpace's use of any of the Company Marks shall inure solely to
the benefit of Company,
7.2 INFOSPACE As between the parties, InfoSpace retains all right,
title and interest in and to the Content and the InfoSpace Web Sites (including,
without limitation, any and all content, data, URLs, domain names, technology,
software, code, user interfaces, "look and feel", Trademarks and other items
posted thereon or used in connection or associated therewith; but excluding any
items supplied by Company) and the InfoSpace Marks, along with an Intellectual
Property Rights associated with any of the foregoing. All goodwill arising out
of Company's use of any of the InfoSpace Marks shall inure solely to the benefit
of InfoSpace.
7.3 COPYRIGHT NOTICES. All Co-branded Pages will include the
following acknowledgment, along with the InfoSpace logo.
"Powered by InfoSpace" or "Powered by InfoSpace.com"
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<PAGE>
InfoSpace and Company acknowledge that the Co-branded Pages may also
contain copyright and patent notices of copyrighted or copyrightable works,
including those of InfoSpace Content providers.
7.4 OTHER TRADEMARKS. InfoSpace shall not register or attempt to
register any of the Company Marks or any Trademarks which Company reasonably
deems to be confusingly similar to any of the Company Marks. Company shall not
register or attempt to register any of the InfoSpace Marks or any Trademarks
which InfoSpace reasonably deems to be confusingly similar to any of the Company
Marks.
7.5 FURTHER ASSURANCES. Each party shall take, at the other parry's
expense, such action (including, without limitation, execution of affidavits or
other documents) as the other party may reasonably request to effect, perfect or
confirm such other party's ownership interests and other rights as set forth
above in this Section 7.
8. GENERAL PROVISIONS
8.1 CONFIDENTIALITY. Each parry (the "Receiving Party") undertakes
to retain in confidence the terms of this Agreement and all other non-public
information and know-how of the other parry disclosed or acquired by the
Receiving Party pursuant to or in connection with this Agreement which is either
designated as proprietary and/or confidential or by the nature of the
circumstances surrounding disclosure, ought in good faith to be treated as
proprietary and/or confidential ("Confidential Information"); provided that each
party may disclose the terms and conditions of this Agreement to its immediate
legal and Financial consultants in the ordinary course of its business. Each
party agrees to use commercially reasonable efforts to protect Confidential
Information of the other party, and in any event, to take precautions at least
as great as those taken to protect its own confidential information of a similar
nature. Company acknowledges that the terms of this Agreement are Confidential
Information of InfoSpace. The foregoing restrictions shall not apply to any
information that: (a) was known by the Receiving Party prior to disclosure
thereof by the other party; (b) was in or entered the public domain through no
fault of the Receiving Party; (c) is disclosed to the Receiving Parry by a third
party legally entitled to make such disclosure without violation of any
obligation of confidentiality; (d) is required to be disclosed by applicable
laws or regulations (but in such even; only to the extent required to be
disclosed); or (e) is independently developed by the Receiving Parry without
reference to any Confidential Information of the other party, Upon request of
the other parry, or in any event upon any termination or expiration of the Term,
each party shall return to the other all materials, in any medium, which
contain, embody, reflect or reference all or any part of any Confidential
Information of the other party. Each party acknowledges that breach of this
provision by it would result in irreparable harm to the other party, for which
money damages would be an insufficient remedy, and therefore that the other
party shall be entitled to seek injunctive relief to enforce the provisions of
this Section 8.1.
8.2 INDEPENDENT CONTRACTORS. Company and InfoSpace are independent
contractors under this Agreement, and nothing herein shall be construed to
create a partnership, joint venture, franchise or agency relationship between
Company and InfoSpace. Neither party has any authority to enter into Agreements
of any kind on behalf of the other party.
8.3 ASSIGNMENT. Neither parry may assign this Agreement or any of
its rights or delegate any of its duties under this Agreement without the prior
written consent of the other party, not to be unreasonably withheld, except that
either party may, without the other party's consent, assign this Agreement or
any of its rights or delegate any of its duties under this Agreement: (a) to any
affiliate of such party; or (b) to any purchaser of all or substantially all of
such party's assets or to any successor by way of merger, consolidation or
similar transaction. Subject to the foregoing, this Agreement will be binding
upon, enforceable by, and inure to the benefit of the parties and their
respective successors and assigns.
8.4 CHOICE OF LAW; FORUM SELECTION. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of
Washington without reference to its choice of law rules.
7
<PAGE>
Company hereby irrevocably consents to exclusive personal jurisdiction and venue
in the state and federal courts located in King County, Washington With respect
to any actions, claims or proceedings arising out of or in connection with this
Agreement, and agrees not to commence or prosecute any such action, claim or
proceeding other than in the aforementioned courts.
8.5 NONWAIVER. No waiver of any breach of any provision of this
Agreement shall constitute a waiver of any prior, concurrent or subsequent
breach of the same or any other provisions hereof, and no waiver shall be
effective unless made in writing and signed by an authorized representative of
the waiving party.
8.6 FORCE MAJEURE. Neither party shall be deemed to be in default
of or to have breached any provision of this Agreement as a result of any delay,
failure in performance or interruption of service, resulting directly or
indirectly from acts of God, acts of civil or military authorities, civil
disturbances, wars, strikes or other labor disputes, fires, transportation
contingencies, interruptions in telecommunications or Internet services or
network provider services, failure of equipment and/or software, other
catastrophes or any other occurrences which are beyond such party's reasonable
control.
8.7 NOTICES. Any notice or other communication required or
permitted to be given hereunder shall be given in writing and delivered in
person, mailed via confirmed facsimile or e-mail, or delivered by recognized
courier service, properly addressed and stamped with the required postage, to
the person signing this Agreement on behalf of the applicable party at its
address specified in the opening paragraph of the agreement and shall be deemed
effective upon receipt. Either party may from time to time change the person to
receive notices or its address by giving the other party notice of the change in
accordance with this section.
8.8 INTEGRATION. This Agreement contains the entire understanding
of the parties hereto with respect to the transactions and matters contemplated
hereby, supersedes all previous agreements or negotiations between InfoSpace and
Company concerning the subject matter hereof, and cannot be amended except by a
writing signed by both parties.
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the date set forth above.
Net Taxi On-Line Community InfoSpace.com, Inc.
("Company") ("InfoSpace")
By (signature) /S/ Dave Schlenz By (signature) /S/ Naveen
- --------------------------------- ---------------------------
Jain
- ----
Name DAVE SCHLENZ Name NAVEEN JAIN
- ---- ------------- ------------------
Title Manger of Sales Title President and CEO
- ------------------------ --------------------------
Date: 11/5/98 Date: 11/5/98
- -------------- --------------
8
<PAGE>
EXHIBIT A
CONTENT
The Content consists of, but is not limited to, the following indexes,
directories and other items and services (as the same may by updated, revised or
modified by InfoSpace in its sole discretion from time to time):
1. Yellow Pages
2. White Pages
3. Classifieds
4. City Guides
5. Investing
6. News
7. Space Scores
8. Community
9. Government
10. E-Shopping
11. International Listings
12. other items and services that may from time to time bc added to the
InfoSpace Web Sites by InfoSpace (in its sole discretion)
Note: The actual name of these services may change,
9
<PAGE>
EXHIBIT B
TRADEMARKS
Company Marks
- --------------
InfoSpace Marks
- ----------------
InfoSpace
InfoSpace.com
[INFOSPACE.COM LOGO] Powered By InfoSpace
Powered by InfoSpace.com
The Ultimate Directory
10
<PAGE>
EXHIBIT C
ADVERTISING REVENUE SPARE AND ADDTIONAL CONDITIONS
BANNER ADVERTISEMENT REVENUE SHARE
1. If Company site demonstrates at least REDACTED site page views per month,
then during the initial month of the agreement InfoSpace will serve REDACTED of
the ads displayed on Client site where InfoSpace content appears. This will
serve as the benchmark for the average number of ads displayed during any 30-day
period (to be re-evaluated quarterly, or as needed). Thereafter, InfoSpace and
Company will agree on a REDACTED inventory split with each party retaining all
Revenue from its ad sales,
2. Company will pay a total of REDACTED to InfoSpace.com, REDACTED of which
will be paid at signing. The remainder will be paid in equal increments over the
next three months.
This offer is valid for 30 days from date of this agreement.
11
<PAGE>
AGREEMENT FOR TERMINAL FACILITY
COLLOCATION SPACE
THIS AGREEMENT made this IS"' day of January, 1999, (the "Effective Date")
by and between, ALCHEMY COMMUNICATIONS, INC., a California corporation,
(hereinafter called "Alchemy") and PLUS NET, INC., a California corporation
(hereinafter called "Customer").
RECITALS
WHEREAS, Alchemy owns or controls a leasehold interest in certain office
and storage Collocation Space within a commercial building in the State of
California (generally described herein as the "Premises") which may be suitable
for the placement and operation of telecommunications equipment; and
WHEREAS, Customer desires access to the Premises for the purpose of placing
therein certain telecommunications equipment and cabling (hereinafter, the
"Equipment") the individual location for such Equipment to be referred to herein
as the "Terminal Facility"; and
WHEREAS, Alchemy may be willing to grant Customer the right to occupy or
use portions of the Terminal Facility (hereinafter, the "Collocation Space")
upon the ten-ns and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
Alchemy and Customer (collectively the "Parties") hereby agree as follows:
1. LICENSE TO OCCUPY, PERMISSIBLE USE AND RELOCATION PROVISIONS:
A. This document shall comprise a complete and binding agreement
between Customer and Alchemy only upon execution by Alchemy and Customer of a
Collocation Schedule pertaining to the Terminal Facility in which Alchemy has a
leasehold interest. The Collocation Schedule, and any amendments thereto, when
dated and subscribed by Customer and Alchemy shall incorporate the terms and
conditions of this Agreement. In the event of any conflict or inconsistency
between this Agreement and the terms set forth in the Collocation Schedule,
terms of the Collocation Schedule shall in all cases prevail.
B. The Collocation Schedule shall have attached thereto the following
Exhibits: General Description of Work Tasks and Special Terms and Conditions
identified as "Exhibit I"; and Dispatch Labor Charges; identified as "Exhibit
2."
C. Customer shall utilize the Collocation Space only for
interconnection of the Equipment to the network services of Alchemy.
D. In connection with the Collocation Space made available hereunder,
Alchemy shall perform services which support the overall operation of the
Terminal Facility (e.g., janitorial services, environmental systems maintenance,
and power plant maintenance) at no additional charge to Customer. However,
Customer shall be required to maintain the Collocation Space in an orderly
manner and shall be responsible for the removal of trash, packing cartons, etc.
from the Collocation Space. Further, Customer shall maintain the Collocation
Space in a safe condition, including but not limited to the preclusion of
storing combustible materials in the Collocation Space.
E. Unless otherwise provided in the Collocation Schedule, each visit by
Customer to the Collocation Space will be deemed to utilize escort services
furnished by Alchemy from the time Customer's Employee(s) sign(s) in upon
entering the Terminal Facility to the time Customer's employee(s) sign(s) out
upon leaving the Terminal Facility. Charges for escort - 1
<PAGE>
services are consistent with the dispatch labor charges (the "Dispatch Labor
Charges") depicted in Exhibit 2 to the Collocation Schedule.
F. Customer acknowledges that it has been granted only a license to
occupy the Collocation Space and that it has not been granted any real property
interests in the Collocation Space.
2. ADDITIONAL SERVICES:
(1). System Administration: Alchemy shall provide complete system
-----------------------
administration for Customer. For a monthly fee stated in the Collocation
Schedule.
(11). Electronic Commerce Services: Alchemy shall provide Customer
-----------------------------
with electronic commerce ("e- commerce") services, including credit card
processing and applicable record keeping at $0.25 per transaction.
(iii). Programming Services: Alchemy will provide programming
----------------------
services, including digitizing of text, graphics and sound. An additional fee of
one hundred ($100) dollars per hour is attached to this service.
3. TERM OF AGREEMENT, TERMINATION AND RENEWAL:
A. Customer's license to occupy the Collocation Space shall begin on
the "Requested Service Date," as set forth in paragraph 3 of the Collocation
Schedule. The minimum term of the Customer's license to occupy the Collocation
Space shall be the period set forth in the Collocation Schedule (the "Minimum
Term".)
B. Following the expiration of the Tenn for the Collocation Space,
Customer's license shall continue in effect on a month-to-month basis upon the
same terms and conditions specified herein, unless terminated by Alchemy upon
thirty (30) day's prior written notice.
C. Upon termination or expiration of the Term for the Collocation
Space, Customer agrees to remove the Equipment and other property that has been
installed by Customer or Customer's agent. In the event such Equipment or
property has not been removed within thirty (30) days of the effective
termination or expiration date, the Equipment shall be deemed abandoned and
Customer shall lose all rights and title thereto.
D. In the event the Terminal Facility becomes the subject of a taking
by eminent domain by any authority having such power, Alchemy shall have the
right to terminate this Agreement. Alchemy shall attempt to give Customer
reasonable advance notice of the removal schedule. Customer shall have no claim
against Alchemy for any relocation expenses, any part of any award that may be
made for such taking or the value of any unexpired term or renewed periods that
result from a termination by Alchemy under this provision, or any loss of
business from full or partial interruption or interference due to any
termination. However, nothing contained in this Agreement shall prohibit
Customer from seeking any relief or remedy against the condemning authority in
the event of an eminent domain proceeding or condemnation that affects the
Collocation Space.
4. PRICES AND PAYMENT TERMS:
A. Customer shall pay Alchemy monthly recurring fees (the "Recurring
Fees"), which shall include charges for use and occupancy of the Collocation
Space (the "Occupancy Fees"), connectivity (or cross- connect fees, if
applicable), power charges, if applicable and system administration. In addition
to any Recurring Fees, Customer shall be charged non-recurring fees for
build-out of the Collocation Space (the "Build-Out Charges"), including, where
applicable, cross-connect installation fees and/or Dispatch Labor Charges, where
applicable, which shall be set forth in the relevant Collocation Schedule and
the Exhibits thereto. If Customer requests that
2
<PAGE>
Alchemy provide services not delineated herein or in the Collocation Schedule at
any time during the Term, Customer agrees to pay Alchemy's price for such
services in effect at the time such service was rendered.
B. Prices do not include taxes, except as specifically stated herein.
Customer agrees to pay or reimburse Alchemy for any applicable taxes that are
levied based on the transactions hereunder, exclusive of taxes on income and
real estate taxes on the Ten-ninal Facility. Any such charges shall be invoiced
and payable within the payment terms of this Agreement. Alchemy agrees to
provide Customer with reasonable documentation to support invoiced amounts
applied to taxes within thirty (30) calendar days of receipt of a Customer's
written request.
C. The Occupancy Fee and/or Power Charges shall be increased to
reflect any increases incurred by and required under the lease relevant to the
Premises in which the Collocation Space is located. Customer shall pay to
Alchemy its pro rata share of any such increases based on the number of square
feet of the Collocation Space compared to the number of square feet leased by
Alchemy under the applicable lease. Alchemy shall notify Customer of any such
increase as soon as practicable.
D. All Recurring Fees shall be invoiced thirty (30) days prior to the
beginning of each month commencing thirty (30) days prior to the first day of
the Term as identified in the Collocation Schedule and thereafter, on the first
day of each calendar month. Charges for partial months shall be prorated
accordingly. All Recurring Fees shall be payable net thirty (30) days from date
of invoice and prior to the beginning of the invoiced period. Customer shall be
subject to late charges if payment is not received within the payment ten-n
period. The late payment charges will be calculated based on 1.5% per month of
the unpaid amount.
E. Charges delineated in the Collocation Schedule for build-out of the
Collocation Space shall be invoiced and paid by Customer when invoiced. Alchemy
may require payment of up to fifty percent (50%) of the "Build Out Fees" prior
to commencing construction.
F. Customer agrees to reimburse Alchemy for all reasonable repair or
restoration costs associated with damage or destruction caused by Customer's
personnel, Customer's agent(s) or Customer's suppliers/contractors or Customer's
visitors during the Term or as a consequence of Customer's removal of the
Equipment or property installed in the Collocation Space.
5. ADDITIONAL TERMS GOVERNING USE OF COLLOCATION SPACE AND INSTALLATION OF
EQUIPMENT:
A. Before beginning any delivery, installation, replacement or removal
work, Customer must obtain Alchemy's wnitten approval of Customer's choice of
suppliers and contractors which approval shall not be unreasonably withheld or
delayed. Alchemy may request additional information before granting approval and
may require scheduling changes and substitution of suppliers and contractors as
conditions of its approval. Approval by Alchemy is not an endorsement of
Customer's supplier or contractor, and Customer will remain solely responsible
for the selection of the supplier or contractor and all payments for
construction work.
B. Customer shall not make any construction changes or material
alterations to the interior or exterior portions of the Collocation Space,
including any cabling or power supplies for the Equipment, without obtaining
Alchemy's written approval for Customer to have the work performed or have
Alchemy perform the work. Alchemy reserves the right to perform and manage any
construction or material alterations within the Terminal Facility and
Collocation Space areas at rates to be negotiated between the Parties hereto.
C. Customer's use of the Collocation Space, installation of Equipment
and access to the Terminal Facility shall at all times be subject to Customer's
adherence to the generally accepted industry standards, security rules and rules
of conduct established by Alchemy for the Terminal Facility. Customer agrees not
to erect any signs or devices to the exterior portion of the -3-
3
<PAGE>
Collocation Space without submitting the request to Alchemy and obtaining
Alchemy's written approval.
D. Customer may not provide, or make available to any third party,
collocation space within the Collocation Space without Alchemy's prior written
consent. If Customer should provide, or make available to any third party,
collocation space within the Collocation Space without obtaining the written
consent of Alchemy, Customer shall be in breach of this Agreement and Alchemy
may pursue any legal or equitable remedy, including but not limited to 9 the
immediate termination of this Agreement.
E. Alchemy shall not arbitrarily or discriminatorily require Customer
to relocate the Equipment; however, upon sixty (60) days prior written notice
or, in the event of an emergency, such time as may be reasonable, Alchemy
reserves the right to change the location of the Collocation Space or the
Terminal Facility to a site which shall afford comparable environmental
conditions for the Equipment and comparable accessibility to the Equipment.
Alchemy and Customer will work together in good faith to minimize any disruption
of Customer's services as a result of such relocation. Alchemy shall be
responsible for the cost of improving the Collocation Space to which the
Equipment may be relocated, and for relocation of Equipment interconnected to
Alchemy services, except that Alchemy shall not be responsible for relocating
facilities installed in violation of this Agreement.
6. INSURANCE:
Customer agrees to maintain, at Customer's expense, during the entire time
this Agreement is in effect for each Collocation Space (1) Comprehensive General
Liability Insurance in an amount not less than One Million Dollars ($
1,000,000.00) per occurrence for bodily injury or property damage, (ii)
Employers Liability in an amount not less than Five Hundred Thousand Dollars
($500,000.00) per occurrence, and (ill) Workers' Compensation in an amount not
less than that prescribed by statutory limits. Prior to taking occupancy of the
Collocation Space, Customer shall furnish Alchemy with certificates of insurance
which evidence the minimum levels of insurance set forth herein and which name
Alchemy as an additional insured. Customer shall also maintain sufficient
property insurance to cover any Equipment placed in the Collocation Space.
7. DEFAULT:
A. If Customer fails to perform its obligations, or fails to pay for
services rendered hereunder, Alchemy may, at its sole option and with written
notice, issue a default notice letter to Customer, demanding the default
condition be cured. If the default condition is not remedied within the time
period specified in the notice letter, which shall not be less than fourteen
(14) calendar days, Alchemy may then, without the necessity of any further
notice, discontinue performance and terminate this Agreement, for default, and
pursue any other remedies available at law or in equity. Alchemy's failure to
exercise any of its rights hereunder shall not constitute or be construed by
Customer as being a waiver of any past, present, or future right or remedy.
B. At any time during the term of this Agreement, Alchemy may, at
Alchemy's sole option, immediately terminate this Agreement if Customer is not
then maintaining the Equipment solely for the purpose of originating and/or
terminating telecommunications transmissions carried over the Alchemy Network or
as otherwise set forth in Paragraph I of this Agreement, or pursuant to the
terms and conditions, if any, contained in any Collocation Schedule identified
herewith.
C. If Customer commits an act of default with respect to the purchase
of telecommunications services from Alchemy, which would entitle Alchemy under
its separate tariffs and agreements to terminate its services to Customer, then
Alchemy shall he entitled to terminate this Agreement and all Collocation
Schedules to which this Agreement pertains.
4
<PAGE>
8. WARRANTIES, REMEDIES AND DISCLAIMERS:
A. Alchemy shall, at Alchemy's own expense, defend Customer against
any and all claims that the Collocation Space used by Customer hereunder
infringes on any third party's property or ownership rights. Alchemy shall, at
Alchemy's sole option, either (1) settle any such claim, (11) secure valid
rights for Customer's continued use, or (111) furnish equivalent Collocation
Space that is not infringing and that can be used to satisfy the original
specifications in Alchemy's determination. This warranty and remedy by Alchemy
shall be valid only if (i) Customer gives Alchemy prompt written notice upon
Customer's receipt of any such claim, (ii) Customer provides Alchemy with all
pertinent information in its possession relative to such claim and (Iii) Alchemy
shall have sole control over the settlement or defense of such claim.
B. THE COLLOCATION SPACE IS ACCEPTED "AS IS" BY CUSTOMER. CUSTOMER
ACKNOWLEDGES THAT NO REPRESENTATION HAS BEEN MADE BY ALCHEMY AS TO THE FITNESS
OF THE COLLOCATION SPACE FOR CUSTOMER'S INTENDED PURPOSE. EXCEPT FOR THE
WARRANTIES SET FORTH IN THIS ARTICLE, THERE ARE NO WARRANTIES, WHETHER EXPRESS,
IMPLIED, OR-AL, OR WRITTEN, WITH RESPECT TO THE COLLOCATION SPACE OR SERVICES
COVERED OR FURNISHED PURSUANT TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO,
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
MOREOVER, THE REMEDIES PROVIDED IN THIS ARTICLE ARE EXCLUSIVE AND IN LIEU OF ALL
OTHER REMEDIES.
9. EXCUSED PERFORMANCE:
Neither Party shall be liable to the other Party under this Agreement for
any failure nor delay in performance that is due to causes beyond its reasonable
control, including but not limited to, acts of nature, governmental actions,
fires, civil disturbances, interruptions of power, or transportation problems.
10. ASSIGNMENT OR TRANSFER:
Customer shall not assign or transfer the rights or obligations associated
with this Agreement, in whole or in part, without Alchemy's prior written
consent.
11. PUBLICITY:
Customer shall not use Alchemy's name in publicity or press releases
without Alchemy's prior written consent.
12. LIMITATION OF LIABILITY:
A. In no event shall Alchemy, Customer, or any of their respective
officers, directors, agents, contractors or employees, be liable, one to the
other, for any loss of profit or revenue or for indirect, incidental, special,
punitive or exemplary damages incurred or suffered by each other, arising from
or pertaining to Customer's use or occupancy of the Collocation Space including,
without limitation damages arising from interruption of electrical power or HVAC
services.
B. Customer shall indemnify and hold harmless Alchemy, and its
respective officers, directors, agents, contractors and employees, from and
against any and all claims, costs, expenses or liability (including by any
representation or promise not specifically expressed in this Agreement). Any
modification made hereto shall not be valid and binding unless it is in writing
and signed by both Parties.
5
<PAGE>
13. NOTICES:
A. Any notice required to be given pursuant to this Agreement shall be
in writing and mailed by certified or registered mail, return receipt requested,
or delivered by a national overnight express service or by facsimile, with a
written acknowledgment of receipt to the following addresses:
(i) Customer:
Plus Net Inc.
24633 Mulholland Highway
Calabasas, California 91302
Attn: Mr. Bruce K. Muhlfeld
(ii) Alchemy:
Alchemy Communications, Inc.
9610 DeSoto Avenue
Chatsworth, California 91311-5012
Attn: Mr. Nolan Quan
B. Either party may change the address to which notice or payment is to
be sent by written notice to the other party pursuant to the provisions of this
paragraph.
14. JURISDICTION AND DISPUTES:
A. This Agreement shall be governed by the laws of the State of California.
B. All disputes hereunder shall be resolved in the applicable state or
federal courts of California, the county of Los Angeles. The parties consent to
the jurisdiction of such courts, agree to accept service of process by mail, and
waive any jurisdictional or venue defenses o1herwise available.
15. INTEGRATION:
This Agreement constitutes the entire understanding of the parties, and
revokes and supersedes all prior agreements between the parties and is intended
as a final expression of their Agreement. It shall not be modified or amended
except in writing signed by the parties hereto and specifically referring to
this Agreement. This Agreement shall take precedence over any other documents
that may be in conflict therewith.
IN WITNESS WHEREOF, the Par-ties have executed this Agreement as of the
date first above written.
ALCHEMY COMMUNICATIONS, INC. PLUS NET, INC.
By: /S/ Nolan Quan By: /S/ Bruce K. Muhlfeld
---------------- ------------------------
Name: Nolan Quan Name: Bruce K. Muhlfeld
Title: President Title: President
6
<PAGE>
COLLOCATION SCHEDULE
This Collocation Schedule is made on this W'day of January, 1999 (the
"Effective Date") and subject to all definitions, terms and conditions of that
certain Agreement for Terminal Facility Collocation Space, dated January 18,
1999, the ("Agreement") by and between ALCHEMY COMMINICATIONS, INC., ("Alchemy")
and PLUS NET, INC., ("Customer"). Customer accepts and ratifies the terms and
conditions of the Agreement, with respect to the Terminal Facility identified
below, as specifically set forth herein.
1. ADDRESS OF TERMINAL FACILITY: 2. COLLOCATION SPACE:
1200 West 7 1h Street
Level One Cages: Up to 150 Square Feet.
Los Angeles, California
3. TERM:
Requested service date: May 1, 1999
Initial period: REDACTED.
4. MONTHLY RECURRING SERVICE FEES:
Occupancy Fees: REDACTED usage of up to 150 square feet.
Cross-Connect Fees: * REDACTED per DS-0, REDACTED per DS-1, REDACTED per
DS-3.
Power Charge:
AC (120 Volt) squared**: First 100 amps included in monthly charge. Battery
Back-up.
Thereafter REDACTED.
5. HOSTING VARIABLE MONTHLY FEE:
Pricing for bandwidth usage shall be at Alchemy's cost plus ten (10%)
percent.
6. SPECIAL SERVICES FEES:
System Administration: REDACTED per month for "Eyes/Hands Support."
Programming Services: REDACTED per hour.
Electronic Commerce Services: REDACTED per transaction.
7
<PAGE>
* A "cross-connect" is an electrical connection made between two DS-1 circuits
on a WX-1 cross-connect panel or two DS-3 circuits on a DSC-3 cross-connect
panel which interconnects the Equipment with other telecommunications services.
Alchemy shall provide appropriate cable facilities (i.e., patch cords and cables
required to connect WX-N jacks) between the Equipment and Alchemy common
cross-connect panel located at the Premises. Cross-connect charges are
determined by the level and type of facilities connected. No cross-connect shall
be provided for any period past the expiration of the Agreement.
* *AC Power charges will be applied based on Customer connected Equipment load
based on an initial survey and adjusted annually based on surveys performed on
or about the anniversary of the original survey.
ALCHEMY COMMUNICATIONS, INC. PLUS NET, IN
By: /s/ Nolan Quan By: /s/ Bruce K. Muhlfeld
---------------- ------------------------
Authorized Signature Authorized Signature
Date: 01-18-99 Date: 01/18/99
8
<PAGE>
EXHIBIT I to Collocation Schedule
GENERAL DESCRIPTION OF WORK TASKS AND SPECIAL TERMS AND CONDITIONS
1. GENERAL DESCRIPTION - ALCHEMY WORK TASKS:
-----------------------------------------------
Alchemy will provide standard 100 amps/60 hertz, U-Plex for AC Power. Included
with 10 meg service.
2. GENERAL DESCRIPTION - CUSTOMER WORK TASKS:
------------------------------------------------
Customer will provide a list of persons authorized to access Collocation Space.
3. SPECIAL TERMS AND CONDITIONS(AS APPLICABLE)-
-----------------------------------------------
Visitor parking is currently available at no additional cost. Office space is
available on a first-come basis. Guaranteed office space may be arranged at an
additional cost, as available.
9
<PAGE>
EXHIBIT 2
to Collocation Schedule
DISPATCH LABOR CHARGES
The following charges shall be applied for labor performed by Alchemy on the
request of Customer.
1. Normal Alchemy business hours: REDACTED each add l 1/2hour, (Monday
to Saturday 7:00 a.m. to 7:00 p.m., except Alchemy holidays.)
2. Off hour Alchemy business hours: REDACTED each additional 1/2 hour
(Monday to Saturday 7:00 p.m. to 7:00 a.m., except Alchemy holidays.)
3. Sundays and Holidays: REDACTED for first 1/2 hour, REDACTED each
additional 1/2hour.
Note: Labor hours are billed in half hour increments. Alchemy off-hour labor
hours are based on a four hour minimum.
10
<PAGE>
PLUS NET, INC.
24633 Mulholland Highway
Calabasas, California 91302
Dated as of January 15, 1999
BABENET, LTD.
9610 DeSoto Avenue
Chatsworth, California 91311-5012
Gentlemen:
This letter sets forth the basic terms of the agreement (the
"Agreement")between Plus Net, Inc., a California corporation ("Company"), and
Babenet, Ltd., a California corporation ("Client"), relating to the processing
of financial transactions.
SECTION 1. TRANSACTIONS. Subject to the terms and conditions
-------------
contained herein, Company shall process all financial transactions on behalf of
Client that result from services provided by websites developed and maintained
by Client.
SECTION 2. FEES. Client agrees to pay Company the following fees
on all financial transactions that the Company processes:
Discount Rate: REDACTED
Transaction fee: REDACTED per transaction
SECTION 3. OFF SETS. Client expressly authorizes Company to deduct
or retain from any payments due to Client sums equal to any chargebacks,
credits, fees or adjustments due from Client.
SECTION 4. TERM. This Agreement shall be effective as of the date
of execution by both parties and shall extend for a period of one (1) year.
SECTION 5. REPRESENTATIONS AND WARRANTIES. (a) Client hereby
---------------------------------
represents and warrants that (i) Client has the right, power and authority to
enter into this Agreement and the execution, delivery and performance by Client
of its obligations hereunder have been duly authorized by all necessary action,
(ii) this Agreement is the legal, valid and binding obligation of Client in
accordance with its terms.(b) Company hereby represents and warrants that (i)
Company is a California corporation duly organized, validly existing and in good
standing under the laws thereof, (ii) Company has the right, power and authority
to enter into this Agreement and the execution, delivery and performance by
Company of its obligations hereunder have been duly authorized by all necessary
corporate action, (iii) this Agreement is the legal, valid and binding
obligation of Company in accordance with its terms.
<PAGE>
Babenet
January 15, 1999
Page Two
SECTION 6. ACCOUNTING. Statements with respect to transaction
-----------
processing will be rendered on a monthly basis. Each statement shall show in
summary form the calculation of Company receipts processed on behalf of Client
and remit payments due to Client. Accurate accounting records relating to all
transactions processed shall be maintained at Company's headquarters. Such
records shall be available for audit on three weeks notice, at reasonable times
during business hours, to an accounting firm acting on behalf of Client.
SECTION 7. MISCELLANEOUS. This Agreement expresses the entire
--------------
understanding of the parties hereto and replaces any and all former agreements,
understandings or representations relating in any way to the subject matter
hereof, and is binding upon Client and Company. No amendment or waiver of any
provision of this Agreement, shall in any event be effective unless the same
shall be in writing and signed by Client and Company, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purposes of which given. Client and Company shall from time to time execute,
acknowledge and deliver such instruments, notices, instructions and other
documents as may be necessary and proper to evidence, maintain, effectuate,
implement or defend any and all of the rights of the parties under any provision
of this Agreement.
SECTION 8. ASSIGNMENT. Client may not assign this Agreement without
-----------
the express written consent of Company which will not be unreasonably withheld.
SECTION 9. NO PARTNERSHIP. Nothing contained herein shall
----------------
constitute a partnership between, or joint venture by, the parties hereto or
constitute either party the trustee, fiduciary or agent of the other (except as
may be expressly provided to the contrary elsewhere herein).
Section 10. Notices. All notices and other communications provided for
hereunder shall be in writing (including telegraphic, telecopy, telax or cable
communication) and mailed, telegraphed, telecopied, telexed, cabled or
delivered, if to:
CLIENT: Babenet, Ltd.
9610 DeSoto Avenue
Chatsworth, California 91311-5012
Attn: John J. Gallagher
<PAGE>
Babenet
January 15, 1999
Page Three
COMPANY: Plus Net, Inc.
24633 Mulholland Highway
Calabasas, California 91302
Attn: Bruce K. Muhlfeld
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other parties. All such notices and communications
shall, when mailed, telegraphed, telecopied, telexed or cabled, be effective
when deposited in the mails, delivered to the telegraph company, transmitted by
telecopier, confirmed by telex answerback or delivered to the cable company,
respectively.
SECTION 11. EXECUTION IN COUNTERPARTS. This Agreement may be
----------------------------
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 14. GOVERNING LAW. This Agreement shall be governed by, and
--------------
construed in accordance with, the laws of the State of California.
Very truly yours,
PLUS NET, INC.
By: /s/ Bruce K.Muhlfeld
----------------------
Bruce K.Muhlfeld
President
Accepted and Agreed:
BABENET, LTD.
By: /s/ John J. Gallagher
------------------------
John J. Gallagher
President
<PAGE>
INTERNET SERVICES SUITE AGREEMENT
THIS INTERNET SERVICES SUITE AGREEMENT (this "Agreement") is entered into
as of February _, 1999 (the "Effective Date") between WIRED DIGITAL, INC., a
Delaware corporation Lycos, Inc., a Delaware corporation ("Lycos"), and
NETTAXI ONLINE COMMUNITIES, INC., a Delaware corporation. ("Nettaxi").
Recitals
--------
A. Wired is the owner or licensee of certain Web-based services
(collectively, the "Wired Services"), which are accessible through the URLT
www.hotbot.com (the "HotBot Site");
B. Lycos is the owner or licensee of certain Web-based personalized
start page services (, the "Lycos Start Pages"), which are accessible through
the URL www.lycos.com (the "Lycos Site");'
C. Nettaxi maintains a site on the Internet at http://www.nettaxi.com
(the "Nettaxi Site"), and desires to make the Wired Services and co-branded
versions of the Lycos Start Pages available to users of the Nettaxi Site;
D. Wired and Lycos are willing to co-brand and/or operate certain of
their respective Services on behalf of Nettaxi, pursuant to the terms hereof,
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Wired, Lycos and Nettaxi hereby
agree as follows:
Terms
-----
Section 1. Definitions.
1.1 "Advertising Rights" means all advertising or promotional
---------------------
rights, including without limitation banner advertisements, "pop-up" windows,
surveys and sponsorships.
1.2 "HotBot Personal Search Tool" means Wired's Web-based
-------------------------------
customizable search panel incorporating the HotBot Search functionality, as the
same may be updated or modified from time to time in Wired's sole discretion.
1.3 "HotBot Search" means Wired's Web-based search engine service,
----------------
currently commercially referred to as HotBot, as the same may be updated or
modified from time to time in Wired's sole discretion.
1.4 "LycosBrand Features" means Lycos' name, logo and other
----------------------
trademarks, trade names and service names that Lycos uses from time to time with
respect to Lycos' services offered on Web Sites owned or operated by Lycos.
<PAGE>
1.5 "LycosStart Pages" means Lycos' Web-based personalized start
-------------------
page that incorporates certain of the Lycos Services, as the same may be updated
or modified from time to time in Lycos' sole discretion.
1.6 "Nettaxi Brand Features" means Nettaxi's name and logo and such
------------------------
other trademarks, trade names, service names and trade dress that Nettaxi uses
from time to time with respect to the Nettaxi Site.
1.7 "Referral" takes place when a user clicks on a hyperlink or
--------
uses an HTML tool to connect to the following Wired Services: Wired Content and
HotBot Search, at the redirect URLs designated by Wired and as measured by
Wired's server logs.
1.8 "Wired Brand Features" means Wired's name, logo and other
------------------------
trademarks, trade names and service names that Wired uses from time to time with
respect to Wired's services offered on Web Sites owned or operated by Wired.
1.9 "Wired Content" means Wired's Web-based news, information and
----------------
entertainment services, as well as the e-mail newsletter versions of these
services, including Wired News (http://www.wired.com), Webmonkey
(http://www.webmonkey.com), and Suck (http://www. suck. com), as may be update
or modified from time to time in Wired's sole discretion.
SECTION 2. NETTAXI START PAGES DEVELOPMENT AND MAINTENANCE.
2.1 Development of Nettaxi Start Pages. Lycos shall use reasonable
-----------------------------------
commercial efforts to develop, within thirty (30) days after the Effective Date,
the following service for use exclusively by users of the Nettaxi Site and
accessible from the Nettaxi Site: a co-branded version of Lycos Start Pages
("Nettaxi Start Pages") which shall contain a Nettaxi-branded links box, HotBot
Search or Lycos Search functionality, and other standard features of Lycos Start
Pages. Nettaxi's sole remedy for Lycos' breach of the first sentence of this
Section 2.1 shall be termination of this Agreement in accordance with Section
11.2(a), and Nettaxi shall not be entitled to any other legal or equitable
relief of any kind in connection therewith.
2.2 Branding and User Interface.
-------------------------------
(a) Branding. The Nettaxi Start Pages shall be branded in a
--------
manner substantially similar to the example(s) set forth in Exhibit B hereto.
All Nettaxi Start Pages shall display appropriate intellectual property legends,
including but not limited to copyright notice and trademark references. Subject
to the foregoing provisions of this Section 2.2(a), the parties shall agree upon
the prominence and location of all displays of the Nettaxi Brand Features, the
Lycos Brand Features on the Nettaxi Start Pages; provided that the Lycos name
shall be above the fold and prominently displayed on all co-branded pages. Lycos
shall not be obligated to co-brand those pages containing content which Lycos
has branded with a third party, which Lycos is
2
<PAGE>
prohibited from co-branding pursuant to another Lycos agreement, which Lycos is
technically unable to co-brand, and that are commercially unreasonable for Lycos
to co-brand.
(b) User Interface. The user interface for Nettaxi Start Pages
----------------
shall be substantially similar to the user interfaces of the Lycos Start Pages,
which Lycos may modify from time to time in its sole discretion.
2.3 Hosting/Traffic. Nettaxi Start Pages shall be hosted by Lycos.
----------------
The Nettaxi Start Pages shall be served from Lycos sub-domains (e.g.,
www.lycos.com/par-tners/tucows). As between the parties, only Lycos shall
receive credit for all unique visitor traffic and page views generated by the
Nettaxi Start Pages. As such, the parties agree to assist each other in taking
any steps that may be required to obtain or perfect the rights of Lycos to
receive credit from Relevant Knowledge/Media Metrix (or any other organization
reasonably designated by Lycos that is reasonably deemed to be recognized in the
Internet industry as a reliable authority for tracking unique visitor or page
views) for all unique visitor traffic and pages views generated by the Nettaxi
Start Pages.
2.4 Sale of Advertising Rights. Lycos shall have the sole light to
----------------------------
sell Advertising Rights on the Nettaxi Start Pages.
2.5 Customer Service. Lycos shall include an email link on one or
------------------
more of the Nettaxi Start Pages to Lycos' customer service staff. Lycos shall
use reasonable commercial efforts to respond to all customer service inquiries
promptly after receipt.
SECTION 3. MARKETING AND PROMOTIONS.
3.1 Marketing Activities. Throughout the Term of this Agreement,
----------------------
Nettaxi shall use reasonable commercial efforts to market HotBot Search and
Wired Content in order to maximize the number of Nettaxi Site users visiting
these sites, including without limitation, direct email campaigns, advertising
and promotions on the Nettaxi Site and targeted activities by Nettaxi.
Immediately upon Lycos' launch of the Nettaxi Start Pages, Nettaxi shall use
reasonable commercial efforts to market Nettaxi Start Pages in order to maximize
the number of users of the Nettaxi Start Pages, including without limitation,
direct email campaigns, advertising and promotions on the Nettaxi Site and
targeted activities by Nettaxi. The parties shall review Nettaxi's marketing
activities on a quarterly basis in order to assess performance and agree upon
additional activities, if necessary, in order to increase usage of Nettaxi Start
Pages.
3.2 Promotional Placements. During the Term of this Agreement,
------------------------
Nettaxi shall provide promotional placements for Wired and Lycos as set forth in
this Section 3.2. Wired and Lycos shall provide Nettaxi with electronic copies
of the artwork for the appropriate Wired and Lycos icons, logos, search boxes
and links to be displayed on the Nettaxi Site in connection with the promotional
placements described below. Nettaxi shall be responsible for programming and
integrating the search box, icons, logos and links into the Nettaxi Site:
3
<PAGE>
(a) Nettaxi shall integrate links to Wired Content and to the Nettaxi
Start Pages, in a substantially similar manner to the specifications and "look
and feel" of the examples set forth on Exhibit B. The links to the Nettaxi Start
Pages shall be displayed on every page of the Nettaxi Site produced by Nettaxi.
(b) Nettaxi shall prominently offer the HotBot Personal Search Tool and
the Nettaxi Start Pages to every visitor and to every new registered member on
the Nettaxi Site. Nettaxi shall integrate the HotBot Personal Search Tool in
"The Nettaxi Citizen Page Builder" process. For those users of the Nettaxi Site
building pages using Nettaxi FTP services, Nettaxi shall promote the HotBot
Personal Search Tool in the "Other Nettaxi Help" and "Resources" pages of the
Nettaxi Site. The HotBot Personal Search Tool shall be the only search engine
tool made available to Nettaxi home-page builders. Nettaxi shall redirect all
users of the Nettaxi Site who conduct searches through the HotBot Personal
Search Tool or who select the Wired and Lycos links to the, URL of the
appropriate service.
(c) Nettaxi shall integrate the following links to Wired Content: (i)
Webmonkey in the "Homepage Utils/HTML Resources" section of the Nettaxi Site,
currently located at http://www.nettaxi.com/help/resources.html; (ii) Wired News
and Suck in all relevant topic sections of the Nettaxi Site, at Nettaxi's
discretion; (iii) Wired Content newsletter subscriptions in all relevant
sections of the Nettaxi Site, at Nettaxi's discretion.
3.3 Referral Guarantee. During the Term of this Agreement, Nettaxi
--------------------
guarantees that Nettaxi's promotional placements for the HotBot Personal Search
Tool and Wired Content shall result in not less than REDACTED Referrals per
month. For purposes of determining whether Nettaxi has performed on its Referral
guarantee, the Referral tally shall begin at zero at the beginning of each
contract quarter.
(a) If Nettaxi fails to achieve the guaranteed level of REDACTED
Referrals in a particular quarter, Wired's obligation to make such quarter's
Referral Payment (as described below in Section 5.3) shall be deferred until the
due date of the next quarterly payment.
(b) If Nettaxi fails to achieve the guaranteed level of REDACTED
Referrals for two consecutive contract quarters, the payment per thousand
Referrals quoted in Section 5. 1 (a) shall be decreased to REDACTED.
3.4 Additional Marketing Provisions. The additional marketing
----------------------------------
provisions set forth in Exhibit A are incorporated herein.
SECTION 4. OWNERSHIP AND LICENSE.
4.1 Ownership. Nettaxi acknowledges and agrees that, as between the
----------
parties, Lycos owns all title to, and all ownership rights in the Nettaxi Start
Pages, including without limitation the underlying software but excluding the
Nettaxi-brand element of the Lycos.com domain name for Nettaxi Start Pages and
the Nettaxi Brand Features, which are the sole property of Nettaxi.
4
<PAGE>
Under no circumstances shall any part of Nettaxi Start Pages be physically
transferred to Nettaxi or shall Nettaxi be entitled to a license to the
underlying software.
4.2 Nettaxi License Grant. Nettaxi hereby grants Lycos, during the Term
----------------------
(as defined below) of this Agreement, a worldwide, royalty-free, nonexclusive
license (with no right to sublicense) to use, reproduce and distribute the
Nettaxi Brand Features on the Nettaxi Start Pages in accordance with this
Agreement and Nettaxi's guidelines for use of the Nettaxi Brand Features, which
guidelines Nettaxi may change from time to time upon at least thirty (30) days'
prior written notice to Lycos.
4.3 Lycos License Grant. Lycos hereby grants Nettaxi a worldwide,
----------------------
royalty-free, nonexclusive license (with no right to sublicense) to use the
Lycos Brand Features in connection with the marketing and promotion of Lycos and
the Nettaxi Start Pages in accordance with this Agreement and Lycos' guidelines
for use of the Lycos Brand Features, which guidelines Lycos may change from time
to time upon at least thirty (30) days' prior written notice to Nettaxi.
4.4 Wired License Grant. Wired hereby grants Nettaxi a worldwide,
----------------------
royalty-free, nonexclusive license (with no right to sublicense) to use the
Wired Brand Features in connection with the marketing and promotion of Wired,
the HotBot Search and the Wired Content in accordance with this Agreement and
Wired's guidelines for use of the Wired Brand Features, which guidelines Wired
may change from time to time upon at least thirty (30) days' prior written
notice to Nettaxi.
4.5 No Other Rights. Except as expressly provided above, the
------------------
par-ties retain all title to, and all rights in, their respective Brand
Features.
SECTION 5. PAYMENT TERMS.
5.1 Wired Services Referral Payments. Nettaxi shall be entitled to
------------------------------------
payment for Referrals throughout the Term, as follows:
a. For every Referral between 1 and REDACTED Referrals per contract quarter
during the Term, Wired shall pay Nettaxi REDACTED per Referral REDACTED,
unless Nettaxi fails to achieve the guaranteed level of REDACTED Referrals
for two consecutive contract quarters, in which case the payment per
thousand Referrals shall be decreased to REDACTED, as described in Section
3.3(b) above.
b. For every Referral between REDACTED and REDACTED Referrals per contract
quarter during the Term, Wired shall pay Nettaxi REDACTED per Referral
REDACTED.
C. For every Referral over REDACTED per contract quarter during the Term,
Wired shall pay Nettaxi REDACTED per Referral REDACTED.
5
<PAGE>
5.2 Nettaxi Start Pages Advertising Revenue Share. Lycos shall pay
-----------------------------------------------
Nettaxi the amounts set forth in Exhibit A with respect to Net Advertising
Revenue for the Nettaxi Start Pages received by Lycos during the relevant
period. For the purposes of this Agreement, "Net Advertising Revenue" means the
-------------------------
actual amounts received for the sale of Advertising Rights targeted to Nettaxi
Start Pages, less applicable sales or use taxes, direct costs of collection and
third party and internal sales commissions paid, which commissions shall be
deemed to be REDACTED of actual amounts received.
5.3 Payment Timing, Reporting. Except as provided in Section 3.3(a)
-------------------------
above, within thirty (30) days following the conclusion of each contract quarter
during the Term (the "Payment Schedule"), Wired shall calculate and pay to
Nettaxi the amounts described in Section 5.1 and 5.2 for the preceding contract
quarter. Referral volumes shall be tracked by Wired and reported to Nettaxi with
each payment.
5.4 No Artificial Inflating of Referral Numbers. Nettaxi shall not,
--------------------------------------------
nor shall it permit or encourage others to, engage in behavior that would cause
Referrals other than by bona fide users who are not employees or contractors of
Nettaxi. Without limiting the foregoing, Nettaxi shall not: (i) use, or permit
to be used, robots that would cause Referrals, or (ii) compensate employees or
contractors for manually causing Referrals.
5.5 Other Revenue Opportunities. Lycos and Nettaxi shall work
------------------------------
together to develop additional revenue opportunities related to Nettaxi
Services. Allocation of any such revenues shall be agreed on a case-by-case
basis.
5.6 Taxes. All fees and payments stated herein exclude, and Nettaxi
------
shall pay, any sales, use, property, license, value added, withholding, excise
or similar tax, federal, state or local, related to the Parties' performance of
their obligations or exercise of their rights under this Agreement and any
related duties, tariffs, imposts and similar charges, exclusive of taxes based
on Wired's net income.
5.7 Inspection Rights. Each party shall maintain accurate records
-------------------
with respect to the calculation of all payments due under this Agreement. Each
party shall have the right, at its expense (except as provided below) to audit
the other party's books and records for the purpose of verifying such payments.
Such audits shall be made not more than twice per year, on not less than ten
(10) days written notice, during regular business hours, by auditors reasonably
acceptable to the party being audited. If the auditor's figures reflect records
higher than those reported by the party being audited, then the party being
audited shall pay the difference. If the auditor's figures vary more than 10%
from the figures provided by the party being audited, then the party being
audited shall also pay the reasonable cost of the audit.
SECTION 6. EXCLUSIVITY.
During the Term, Wired and Lycos will be the exclusive providers of
Internet search, navigation, directory services, personal start pages, personal
home pages and email services on the Nettaxi Site (including any successor
sites); provided that Wired and Lycos are not obligated
6
<PAGE>
to provide any such additional services not provided for in this Agreement
unless it expressly agrees to do so in writing. Nettaxi shall not display any
reference to any competitor of Wired or Lycos on the Nettaxi Site. The term
"competitor" is defined as: Yahoo, Northern Lights, Excite/AtHome, InfoSeek,
Snap, Cnet Planet Direct, AltaVista, GeoCities, LookSmart, MetaCrawler, Mining
Company, GoTo and Go Network, or other competitor as Wired may designate once
per contract quarter.
SECTION 7. DISCLAIMER OF WARRANTIES.
HOTBOT SEARCH, WIRED CONTENT AND NETTAXI START PAGES, ALL UNDERLYING
SOFTWARE AND ALL DATA CONTAINED THEREIN ARE PROVIDED "AS IS." WIRED AND LYCOS
DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH SERVICES,
INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF ACCURACY OR RELIABILITY OF DATA,
NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR ARISING FROM
THE COURSE OF DEALING BETWEEN THE PARTIES OR USAGE OF TRADE.
SECTION 8. CONFIDENTIAL INFORMATION.
8.1 Definition. "Confidential Information" means confidential and
----------- ---------------------------
proprietary information which relates to the parties' business, products and
services, including but not limited to data, trade secrets, discoveries, ideas,
concepts, know-how, techniques, software, business activities and operations,
reports, studies and other technical and business information and, under the
circumstances of disclosure, would be deemed confidential or proprietary by a
reasonable business person. Notwithstanding the foregoing, Confidential
Information shall not include any information which is (a) information which has
become publicly available without breach hereunder by the receiving party or
another person, (b) information which was rightfully received by the receiving
party from a source not under obligation of confidentiality to the disclosing
party, (c) information in the possession of the receiving party, in written or
other recorded form, prior to disclosure by the disclosing party, (d)
information which is developed by the receiving party independent of any
information disclosed hereunder, and (e) information which the disclosing party
has approved in writing for release by the receiving party without restriction.
8.2 No Disclosure. Each party agrees that it will keep in
---------------
confidence all Confidential Information of the other party and that it will not
directly or indirectly disclose to any third party or use for its own benefit,
or use for any purpose other than the performance of its obligations under this
Agreement, any Confidential Information it receives from the other party. Each
party agrees to use reasonable care to protect the other party's Confidential
Information, and in no event less than the same degree of care to protect the
other party's Confidential Information as it would employ with respect to its
own information of like importance which it does not desire to have published or
disseminated. Notwithstanding the foregoing, either party hereto may disclose
any Confidential Information hereunder to such party's attorneys and other
representatives, if required to do so under law or in a judicial or other
governmental investigation or proceeding, provided the other party has been
given prior notice and the disclosing party has sought all
7
<PAGE>
available safeguards against widespread dissemination prior to such disclosure,
or any court or other tribunal of competent jurisdiction as reasonably required
to resolve any dispute between the parties hereto.
8.3 Remedies. The parties each agree that any breach of this
---------
Section 8 would cause irreparable harm or injury to the other party
significantly in excess of the value received by such other party pursuant to
this Agreement, and that such other party shall be entitled to declaratory,
injunctive or other equitable relief, in addition to any other legal or
equitable remedies it may have, for any such breach.
8.4 Return of Confidential Information. Each party shall return or
------------------------------------
destroy all Confidential Information promptly upon the request of the other
party or upon termination of this Agreement.
SECTION 9. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY AND EXCEPT WITH
RESPECT TO OBLIGATIONS TO PAY MONEY UNDER SECTION 5 AND THE INDEMNITY
OBLIGATIONS UNDER SECTION 10, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT
UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE
THEORY FOR (A) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR
EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR
ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES; OR (B) THE COST OF PROCUREMENT OF SLJ13STITUTE
SERVICES, TECHNOLOGY, DATA OR CONTENT.
SECTION 10. INDEMNIFICATION.
10.1 By Wire. Wired, at its own expense, shall indemnify, defend
--------
and hold harmless Nettaxi, and its officers, directors, employees,
representatives and agents, and each of them, against any third party claim,
demand, suit, action, or other proceeding brought against such person, and all
damages, awards, settlements, liabilities, losses, costs and expenses related
thereto (including without limitation attorneys' fees) to the extent that such
claim, suit, action or other proceeding is based on or arises from any claim
that (a) the underlying source code or object code for the HotBot Personal
Search Tool infringes any copyright or U.S. patent or (b) any of the Wired Brand
Features infringes any valid copyright or trademark.
10.2 By Lycos. Lycos, at its own expense, shall indemnify, defend
----------
and hold harmless Nettaxi, and its officers, directors, employees,
representatives and agents, and each of them, against any third party claim,
demand, suit, action, or other proceeding brought against such person, and all
damages, awards, settlements, liabilities, losses, costs and expenses related
thereto (including without limitation attorneys' fees) to the extent that such
claim, suit, action or
8
<PAGE>
other proceeding is based on or arises from any claim that (a) the underlying
source code or object code for Nettaxi Start Pages infringes any copyright or
U.S. patent (b) any of the Lycos Brand Features infringes any valid copyright or
trademark.
10.3 By Nettaxi. Nettaxi, at its own expense, shall indemnify,
------------
defend and hold harmless Lycos and Wired, and their respective officers,
directors, employees, representatives and agents, and each of them, against any
third party claim, suit, action, or other proceeding brought against such
person, and all damages, awards, settlements, liabilities, losses, costs and
expenses related thereto (including without limitation attorneys' fees) to the
extent that such claim, suit, action or other proceeding is based on or arises
from (a) any claim that any of the Nettaxi Brand Features infringe any valid
copyright or trademark or (b) operation of the Nettaxi Site.
10.4 Procedure. All indemnification obligations under this Section
----------
10 shall be subject to the following requirements: (a) the indemnified party
shall provide the indemnifying party with prompt written notice of any claim;
(b) the indemnified party shall permit the indemnifying party to assume and
control the defense of any action (unless, in the opinion of counsel of the
indemnified party, such assumption would result in a material conflict of
interest); and (c) the indemnified party shall not enter into any settlement or
compromise of any claim without the indemnifying party's prior written consent.
In addition, the indemnified party may, at its own expense, participate in its
defense of any claim.
SECTION 11. TERMINATION.
11.1 Term. This Agreement shall have an initial term of REDACTED
-----
from the Effective Date and shall automatically renew for successive REDACTED
terms unless (a) either party provides the other party written notice of
non-renewal at least thirty (30) days prior to the expiration of the then
current term or (b) terminated earlier in accordance with Section 11.2. The
initial term and all renewal terms are collectively referred to in this
Agreement as the "Term."
11.2 Early Termination.
-------------------
(a) Termination Conditions. This Agreement may be terminated (i) by any
-----------------------
Party immediately upon written notice if the other party (A) becomes insolvent;
(B) files a petition in bankruptcy; or (C) makes an assignment for the benefit
of its creditors; or (ii) by any Party at such time as Wired or Lycos ceases
offering any of the above-described services to third parties.
(b) non-exclusive Remedy. Except as explicitly set forth elsewhere in
---------------------
this Agreement, the foregoing rights of termination shall be in addition to any
other legal or equitable remedies that the terminating party may have.
11.3 Survival of Certain Provisions. The provisions of Sections I
---------------------------------
(Definitions), 4.1 (Ownership), 4.3 (No Other Rights), 7 (Disclaimer of
Warranties), 8 (Confidential Information), 9 (Limitation of Liability), 10
(Indemnification), 12 (General Provisions) and this Section 11.3,
9
<PAGE>
as well as any accrued payment obligations under Section 5, shall survive any
termination of this Agreement.
SECTION 12. GENERAL PROVISIONS.
12.1 Entire Agreement. This Agreement, including the Exhibit hereto,
------------------
represents the entire agreement between the parties with respect to the subject
matter hereof and thereof and shall supersede all prior agreements and.
communications of the parties, oral or written.
12.2 Amendment and Waiver. No amendment to any provision of this
-----------------------
Agreement shall be effective unless in writing and signed by all par-ties. The
waiver by either party of a breach or a default of any provision of this
Agreement by the other party shall not be construed as a waiver of any
succeeding breach of the same or any other provision, nor shall any delay or
omission on the part of either party to exercise or avail itself of any right,
power or privilege that it has, or may have hereunder, operate as a waiver of
any right, power or privilege by such party.
12.3 Choice of Law and Forum. This Agreement, its interpretation,
--------------------------
performance or any breach thereof, shall be construed in accordance with, and
all questions with respect thereto shall be determined by, the laws of the State
of California applicable to contracts entered into and wholly to be performed
within said state. The parties hereby consent to the personal jurisdiction of
California, acknowledge that venue is proper in any state or Federal court in
the California, agrees that any action related to this Agreement must be brought
in a state or Federal court in the California, and waive any objection such
party has or may have in the future with respect to any of the foregoing.
12.4 Legal Fees. The prevailing party in any legal action brought
------------
by one party against the other and arising out of this Agreement shall be
entitled, in addition to any other rights and remedies it may have, to
reimbursement for its expenses, including court and arbitration costs, as well
as reasonable attorneys' fees.
12.5 Successors and Assigns. Neither party shall assign its rights
------------------------
or obligations under this Agreement without the prior written consent of the
other party, provided that Wired and Lycos shall be permitted to assign its
rights and obligations to an acquiring or successor entity in connection with a
merger, a sale of Wired's or Lycos' business or a sale of all or substantially
all of Wired's or Lycos' assets. All terms and provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective permitted transferees, successors and assigns.
12.6 Notices. All notices, requests, consents and other
--------
communications which are required or permitted hereunder shall be in writing,
and shall be delivered by registered U.S. mail, postage prepaid (effective three
(3) days after mailing) or sent by facsimile or electronic mail, with a
confirmation copy simultaneously sent by U.S. mail, postage prepaid (effective
upon transmission), at the addresses set forth on the signature page hereto.
Notice of change of address shall be given in the same manner as other
communications.
10
<PAGE>
12.7 Severability. If any provision of this Agreement is held to be
-------------
invalid, illegal or unenforceable for any reason, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
12.8 Good Faith. The parties agree to act in good faith with
------------
respect to each provision of this Agreement and any dispute that may arise
related hereto.
12.9 Headings. The section headings contained in this Agreement are
---------
included for convenience only, and shall not limit or other-wise affect the
terms of this Agreement.
12.10 Counterparts. This Agreement may be executed in two
-------------
counterparts, both of which taken together shall constitute a single instrument.
Execution and delivery of this Agreement may be evidenced by facsimile
transmission.
<Signatures appear on following page>
11
<PAGE>
This Internet Services Suite Agreement has been executed by the parties
effective as of the Effective Date.
WIRED DIGITAL, INC. LYCOS, INC.
By: _____________________ By: _____________________
Name: ___________________ Name: ___________________
Title: __________________ Title: __________________
Address: Address:
Wired Digital, Inc. Lycos, Inc.
Attn.: General Counsel 400-2 Totten Pond Road
660 Third Street, 4TH Floor Waltham, MA 02154
San Francisco, CA 94107 Tel.: (781) 370-2700
Tel.: (415) 276-8400 Fax: (781) 370-2800
Fax: (415) 276-8499 Attn.: General Counsel
NETTAXI
By: /s/ Dean Rositano
-------------------
Name: Dean Rositano
--------------
Title: President
---------
Address:
Attn.:
Tel.:
Fax.: (___) ___-____
Email:
12
<PAGE>
EXHIBIT A
---------
1. ADDITIONAL MARKETING PROVISIONS
A. HOTBOT BANNER ADVERTISEMENTS:
REDACTED
2. NET ADVERTISING REVENUE
Lycos shall pay Nettaxi according to the Payment Schedule an amount
equal REDACTED of Net Advertising Revenue derived from Nettaxi Start
Pages. If NeTTaxi fails to deliver the guaranteed level of Referrals during two
consecutive contract quarters during the Term, the percentage of Net Advertising
Revenue used in the Formula for computation of Nettaxi quarterly payment shall
decrease to REDACTED as described above in Section 3.3(b).
<PAGE>
EXHIBIT B
---------
(SAMPLE LOOK AND FEEL OF PROMOTIONAL PAGES)
<PAGE>
LICENSE AND DISTRIBUTION AGREEMENT
This License and Distribution Agreement ("Agreement) is made and entered into
this 30th day of March, 1999 ("Effective Date"), by and between NETOPIA, INC., a
Delaware corporation, with offices at 2470 Mariner Square Loop, Alameda, CA
94501 ("Netopia"), and Nettaxi Online Communities, Inc., a Delaware corporation,
with offices at 2165 S. Bascom Ave.,
Campbell, CA. 95008 ("Distributor").
The parties agree as follows;
1.LICENSE GRANT
----------------
Netopia grants to Distributor, and Distributor accepts from Netopia, a
royalty-bearing, nonexclusive license right:
(a) to use the site server software object code for Netopia's "Netopia
Virtual Office" product and the related template software development toolset
(the "Server Product") to host end users of the Product;
(b) to use, reproduce, manufacture, and display a Distributor-branded
version of the client software object code of Netopia's Netopia Virtual Office"
product and the related product documentation (the client object code and
related documentation being referred to herein as the "Product"); and
(c) to promote. distribute, license and otherwise market, host, maintain
and support the Product to and for end users only, under the terms of Netopia's
end user license agreement, in conjunction with the sale of Distributor's
internet-related products and services.
All rights not expressly granted are reserved by Netopia and its licensors.
Provided that Distributor shall have paid all amounts due for the annual
maintenance fee as provided in Section 2(d), Distributor's license shall extend
to all updates, revisions and new releases of the Server Product and the Product
made generally available by Netopia to its customers during the term of this
Agreement. Subject to the provisions of Section 3(a), such updates, revisions
and new releases shall be provided to Distributor with no increase in license
fee payments.
Distributor will offer a minimum of two Product services to Distributor's end
users, including the following:
Distributor's will offer without charge to end users a Product "Lite" service
that will consist of only the Product home
Page, contact page, and the picture upload functionality.
Distributor will offer to end users on a subscription cost basis a minimum of
one Product service that will consist of the
Product "Lite" service plus the added Product functionality included with the
Product site server.
2. PRICE AND PAYMENT
-----------------------
(a) Distributor agrees to pay a one time, non-refundable license fee
in the amount of REDACTED with respect to (i) the Server Product to be used by
Distributor to host end users of the Product, and (ii) the hosting by
Distributor of an unlimited number of active sites of the Product being used by
Distributor's end users. Distributor agrees to pay such license fee as follows:
(i) REDACTED within thirty (30) days after the Effective Date, (ii) REDACTED
within sixty (60) days after the Effective Date, and (iii) the remaining
REDACTED within ninety (90) days after the Effective Date.
(b) Distributor further agrees to pay Netopia an on-going monthly
royalty as set forth below with respect to all end user customers subscribing
for Product services (excluding no charge subscribers to the Product "Lite"
service):
Aggregate Monthly Subscribers Royalty Due Netopia
- ------------------------------- ---------------------
0-5,000 REDACTED
5,001-10,000 REDACTED
10,001-20,000 REDACTED
20,001-50,000 REDACTED
50,001-100,000 REDACTED
100.001+ REDACTED
1
<PAGE>
(c) Notwithstanding the expiration or earlier termination of this
Agreement, Distributor agrees to pay Netopia the royalty set forth above for so
long as Distributor continues to host end user customers using the Product.
(d) Netopia agrees to pay Distributor a monthly promotional fee as set
forth below with respect to all end user customers subscribing for Product
services (excluding no charge subscribers to the Product "Lite" service):
Aggregate Monthly Subscribers Promotional Fee Due Distributor
- ------------------------------- ----------------------------------
0-5,000 REDACTED
5,001-10,000 REDACTED
10,001-20,000 REDACTED
20,001-50,000 REDACTED
50,001-100,000 REDACTED
100,001+ REDACTED
(e) Notwithstanding the expiration or earlier termination of this
Agreement, Netopia agrees to pay Distributor this promotional expense for so
long as Distributor continues to host end user customers using the Product.
(f) If at the end of the first year of this Agreement. if less than 10,000
of Distributor's end user customers are subscribing for the Product services
(excluding no charge subscribers to the Product "Lite" service), Distributor
agrees to pay Netopia an additional license fee according to the schedule set
forth below:
Aggregate Product Service Web Sites at End of First Year Additional License
- --------------------------------------------------------- ------------------
Fee for Year Two
- -------------------
0-2,500 REDACTED
2,501-5,000 REDACTED
5,001-7,500 REDACTED
7,501-10,000 REDACTED
10,000+ REDACTED
(g) Distributor further agrees to pay Netopia an annual maintenance fee
in the amount of REDACTED. The maintenance fee shall be payable within thirty
(30) after the Effective Date and thereafter on each anniversary of the
Effective Date Notwithstanding the expiration or earlier termination of this
Agreement, and provided that Netopia makes maintenance services generally
available to its customers, Netopia shall continue to provide Distributor all
updates, revisions and new releases of the Server Product and the Product for so
long as Distributor pays the maintenance fee.
(h) Within fifteen (15) days after the end of each calendar quarter,
Distributor will send to Netopia (i) a report setting forth the number of active
sites of the Product being hosted for Distributor's end users during the
previous calendar quarter; and (ii) a computation and payment of royalties.
Distributor may deduct from the royalty payment the amount otherwise payable by
Netopia pursuant to Section 2(d) with respect to the quarterly reporting period.
(i) Distributor agrees that it will maintain records regarding all sites of
the Product it has hosted. Distributor further agrees that it will permit
Netopia to have access, upon fifteen (15) days advance written notice, at a
mutually agreed time during Distributor's normal business hours, to audit
Distributor's records and books of account for the purpose of determining
whether the appropriate royalties have been paid. Such audits may not be
required more than once every twelve (12) months unless a prior audit has
revealed a discrepancy, and shall be conducted by a firm of certified public
accountants chosen by Netopia. If the accountants' report reveals a discrepancy,
within thirty (30) days Distributor will pay Netopia any amount determined to be
owing. Netopia will pay the cost of each audit, provided that if the audit
determines that Distributor has underpaid supplemental royalties owing to
Netopia then Distributor will pay Netopia the direct third party costs of the
audit.
(j) Except for taxes on Netopia's income, Distributor agrees to pay
any and all sale, use, value added, withholding, excise and similar taxes on
payments under this Agreement, as well as all insurance and shipping charges.
(k) Except as expressly agreed otherwise by the parties in writing, each
party will bear all of its own expenses arising from its performance of its
obligations and exercise of its rights under this Agreement, including without
limitation, the costs of occupancy, facilities, hosting hardware, work space,
utilities, payroll, management, clerical, reproduction services, supplies,
overhead, marketing and like expenses.
2
<PAGE>
3. UPGRADES, DELIVERY AND WARRANTY
--------------------------------------
(a) Promptly after execution of this Agreement, Netopia shall deliver to
Distributor an electronic master copy of the Server Product and the Product.
Thereafter, provided that Distributor shall have paid the annual maintenance
fee, Netopia shall deliver to Distributor without additional charge any and all
updates, revisions and new releases of the Server Product and the Product at
such time that Netopia makes such new releases available generally to its
customers.
(b) Netopia warrants that for ninety (90) days following delivery, unless
modified by Distributor, the Server Product and the Product will perform
substantially the functions described in the related documentation provided by
Netopia. Netopia does not warrant that the Server Product and the Product will
meet Distributor's or any end user customers' specific requirements or that its
operation will be uninterrupted or error-free. Netopia expressly is not
responsible for any problems, including any problem which otherwise would be a
breach of warranty, caused by (i) changes in computer hardware or computer
operating systems; (ii) accident, abuse, or misapplication.
(c) Netopia's entire liability and Distributor's sole remedy under the
foregoing warranty during the ninety (90) day warranty period is that Netopia,
at its sole and exclusive option, shall either use commercially reasonable
efforts to correct any reported material deviation, replace the Server Product
and the Product with a functionally comparable program, or refund all license
fees paid, in which case this Agreement and the license granted hereunder shall
terminate immediately, and Netopia shall have no further obligations to
Distributor.
4. INDEMNIFICATION FOR INFRINGEMENT
--------------------------------------
(a) Netopia represents and warrants that: (i) the Server Product and
the Product do not infringe any patent or copyright or violate the trade secret
or other proprietary rights of any third party; (ii) Netopia or Netopia's
licensors own all patents, copyrights, trade secrets and other proprietary
rights in and to the Server Product and the Product; and (iii) Netopia possesses
the legal right and authority to execute and perform this Agreement.
(b) Netopia agrees to indemnify, hold harmless, and defend ( from and
against any and all damages, costs, and expenses. including reasonable
attorneys' fees and costs, incurred in connection with a claim of a third party
which, if true, would constitute a breach of the foregoing warranties
(hereinafter "Infringement Claims"), provided Distributor notifies Netopia
promptly in writing of the existence of an Infringement Claim and grants Netopia
sole control over its defense or settlement, and Distributor provides reasonable
assistance in the defense of the same.
(c) Following notice of an Infringement Claim, Netopia shall use
commercially reasonable efforts to procure for Distributor the right to continue
to market, use and have others use, the allegedly infringing Server Product or
Product or may replace or modify the Server Product and the Product with a
functionally comparable product to make it non-infringing. In the event that
Netopia does not or cannot comply with this Section 4(c), Netopia shall refund
to Distributor all license fees paid, in which case this Agreement and the
license granted hereunder shall terminate immediately, and Netopia shall have no
further obligations to Distributor.
(d) Netopia shall have no liability for any Infringement Claim based on
Distributor's (i) use of the Server Product, and hosting or distribution of the
Product after Netopia's notice that Distributor should cease use, hosting or
distribution due to an Infringement Claim, or (ii) combination of the Server
Product or the Product with a non-Netopia program or data, if such Infringement
Claim would have been avoided by the exclusive use of the Server Product or the
Product.
(e) The provisions of this Section 4 state Netopia's entire liability to
Distributor with regard to Infringement Claims.
5. LICENSE RESTRICTIONS AND OBLIGATIONS
-------------------------------------------
(a) Distributor shall market, distribute and host use of the Product
only to and by end user customers in conjunction with the sale of Distributor's
internet-related products and services.
(b) Distributor shall not reverse engineer, decompile or disassemble the
Server Product and the Product.
(c) Distributor shall market, distribute, and host use of the Product to
and by and users only pursuant to Netopia's or Distributor's standard end user
license agreement, which may be a "click wrap" license agreement. In no event
will Distributor remove or disable any electronic acknowledgment or agreement
embedded in the Product. The limitations of liability and remedies in
Distributor's end user license agreement shall inure to the benefit of Netopia.
Distributor shall be the "Licensor" under its end user license agreement.
3
<PAGE>
6. COPYRIGHT NOTICES; TRADEMARK & PRODUCT NAME
------------------------------------------------
(a) Distributor will cause to appear on the container and labels of
each CDrom or other storage medium containing the Product, the copyright notices
that appear on the applicable release of the Product as provided to Distributor.
Distributor shall cause to appear on the title page of the documentation, and at
any other location where any copyright notice appears, the Netopia and third
party copyright or other proprietary rights notices that appear in the release
of documentation as provided to Distributor.
(b) Distributor shall market the Product under a name of Distributor's
choosing, provided, however, that Distributor agrees to use the appropriate
trademark symbol (either (R) or "tm" in a superscript) and clearly indicate
Netopia's ownership of the Product and its trademark(s) whenever the Product
name is first mentioned in any advertisement, brochure or in any other manner in
connection with the Product. In addition, Distributor shall indicate Netopia's
ownership of the Product on the screen display in such format as Netopia shall
designate. Distributor shall not at any time use any name or trademark
confusingly similar to a Netopia trademark, trade name and/or product name and
agrees that its use of such Netopia trademarks. trade names and/or product names
shall not directly or indirectly create in Distributor any right, title or
interest therein. Distributor shall not use or display any Netopia logo in its
materials or packagingwithout Netopia's prior written permission. Distributor
shall not use or imitate the trade dress of Netopia's products. Distributor
shall undertake no action that will interfere with or diminish Netopia's right,
title and/or interest in Netopia's trademark(s), trade name(s) or Product
name(s). Upon Netopia's request, Distributor also shall provide Netopia with
samples of all Distributor literature which uses Product name(s)
(c) Distributor agrees that during the term of this Agreement, it will
not market the Product using the words room". "planet", "dwp", "nvo", "mynvo",
"web center". "small business web center", "business web now". or "nextweb" as a
descriptor for the Product.
7. TERM OF AGREEMENT
-----------------------
The initial term of this Agreement shall run from the Effective Date for a
period of REDACTED. Thereafter, this Agreement shall renew automatically
for successive renewal terms of REDACTED unless either party gives notice of
termination no later than REDACTED before the end of the initial term or
any renewal term.
8. DEFAULT AND OBLIGATIONS UPON TERMINATION
------------------------------------------------
(a) This Agreement will terminate if either party materially breaches
this Agreement or any provision hereof, and the breach has not been cured within
thirty (30) days after notice to the breaching party. The rights and remedies of
the parties provided herein shall not be exclusive and are in addition to any
other rights and remedies provided by law or this Agreement.
(b) Within ten (10) days after termination or expiration of this Agreement,
Distributor shall cease distribution of the Product in any manner. Distributor
may retain and continue to use the Server Product to host end users that began
using the Product prior to the effective date of termination.
(c) Termination of this Agreement as a result of Distributor's default
shall result in acceleration of Distributor's obligation to pay to Netopia all
maintenance and supplemental license fees owed as of the effective date of
termination, including royalties for orders pending on the effective date of
termination,
(d) End user licenses properly granted pursuant to this Agreement and
prior to termination of this Agreement shall not be diminished or abridged by
termination. In addition, notwithstanding anything to the contrary contained
herein, Distributor may fill orders pending on the effective date of
termination, provided that such orders were placed and accepted prior to notice
of termination. As provided in and subject to the provisions of Section 2(c),
Distributor agrees to continue to pay monthly royalties to Netopia with respect
to such end users for so long as Distributor continues to host end user
customers using the Product.
(e) As provided in and subject to the provisions of Section 2(d), after the
expiration or earlier termination of this Agreement, Netopia shall continue to
provide Distributor all updates, revisions and new releases of the Server
Product and the Product for so long as Distributor pays the maintenance fee to
Netopia.
(f) All provisions of this Agreement that remain to be performed or by
their nature would be intended to continue to be applicable shall survive
termination or expiration of this Agreement.
9. LIMITATION OF LIABILITY AND REMEDY;DISCLAIMER OF WARRANTIES
---------------------------------------------------------------------
(A) LIMITATION OF LIABILITY
--------------------------------------------------------------
EXCEPT AS SET FORTH IN SECTION 4 NOTWITHSTANDING ANYTHING TO THE CONTRARY
HEREIN, NEITHER PARTY NOR ITS AGENTS, REPRESENTATIVES OR EMPLOYEES SHALL BE
LIABLE TO THE OTHER PARTY PURSUANT TO THIS AGREEMENT FOR AMOUNTS REPRESENTING
LOSS OF REVENUES, LOSS OF PROFITS, LOSS OF BUSINESS OR INDIRECT, CONSEQUENTIAL,
SPECIAL OR PUNITIVE DAMAGES OF THE OTHER PARTY, EVEN IF THE OTHER PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. REGARDLESS OF WHETHER ANY
REMEDY PROVIDED IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE, EXCEPT AS SET
FORTH IN SECTION 4 IN NO EVENT WILL NETOPIA'S LIABILITY UNDER THIS AGREEMENT
EXCEED THE AGGREGATE AMOUNT OF PAYMENTS ACTUALLY PAID BY DISTRIBUTOR TO NETOPIA
REGARDLESS OF WHETHER A CLAIM IS BROUGHT IN TORT, CONTRACT OR OTHERWISE.
(B) DISCLAIMER OF WARRANTIES.EXCEPT AS EXPRESSLY PROVIDED HEREIN,
---------------------------
NETOPIA HEREBY SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH
REGARD TO THE NETOPIA PRODUCT, INCLUDING ANY IMPLIED WARRANTIES OF
NONINFRINGEMENT MERCHANTABILITY OR FITNESS OF THE NETOPIA PRODUCT FOR A
PARTICULAR PURPOSE OR USE.
10. NOTICES
------------
All notices, authorizations and requests in connection with the Agreement shall
be deemed given on the day they are: (i) deposited on the United States mails,
postage prepaid, certified or registered, return receipt requested. (ii)sent by
----
air express courier, charges prepaid, and addressed to the addresses set forth
below. or (iii) sent by facsimile transmission, with confirmation of receipt.
Either party may change its address for notices by written notice to the other
party.
Distributor: ____________________
____________________
____________________
Attention: ____________________
Telephone: ____________________
FAX: ____________________
Netopia: Netopia Inc.
2470 Mariner Square Loop
Alameda, CA 94501
Attention: Tom Spadafore
Telephone: (510) 814-5123
FAX: (510) 814-5021
4
<PAGE>
11. GOVERNING LAW; ARBITRATION; ATTORNEYS' FEES
----------------------------------------------------
(a) The rights and obligations under this Agreement shall be governed
by the laws of the State of California excluding its conflicts of law rules and
United States law and international treaties governing copyrights. The
applications to this Agreement of the United Nations Convention on Contracts for
the International Sale of Goods is hereby expressly excluded.
(b) Any dispute arising out of or relating to this Agreement shall be
referred for resolution by binding arbitration under the Commercial Arbitration
Rules of the American Arbitration Association. Any arbitration shall be
conducted by one arbitrator appointed pursuant to such rules, and shall be held
in San Francisco, California. The arbitrator shall be authorized to award
reasonably attorneys' fees and costs to the prevailing party in any arbitration.
The award of any arbitration shall be final and binding, and enforceable in any
court having jurisdiction over the party against which an award is sought to be
enforced.
12. SUPPORT
- ------------
(a) Distributor will be responsible for all activities associated with
customer account sign-up and billing and related database records, and template
development and deployment. At Distributor's request and subject to Netopia's
standard terms for consulting set-vices, Netopia will make available consulting
services to assist Distributor in the effective consummation of these
activities, including technical support to assist Distributor in be the Server
Product and hosting the Product, developing templates and implementing the
registration process.
(b) Distributor will be responsible for providing and maintaining all
technical equipment and be (including but not limited to server and storage
hardware, network connectivity and access to the internet via high speed access)
required to host users of the Product, for operations support, direct customer
support, and all billing and collection activities.
(c) Distributor exclusively shall be responsible for providing support
services relating to use of the Product directly to its end user customers.
Netopia will provide Distributor with backline support via e-mail to the same
extent that it provides such support to be other OEM customers.
(d) Distributor agrees to cooperate fully with Netopia with respect to any
warranty problems or bugs that may be discovered in the Product by Distributor
or its customers. Netopia will use reasonable commercial efforts to correct in
the next release of the Product any significant bugs identified by Distributor
or its customers.
(e) Each party will designate a competent technical contact who will serve
as the primary person responsible for resolution of and be contacted to resolve
technical and support issues arising under this Agreement.
13. GENERAL
- ------------
(a) This Agreement may not be assigned or sublicensed in whole or in
part by either party without the prior written consent of the other party, which
be shall not be withheld unreasonably, provided, however, that either party may
assign its rights and obligations hereunder without the other party's prior
written consent to a successor entity in connection with a merger or sale of
substantially all assets (a "Merger") provided that the successor agrees in
writing to perform all obligations of the assigning party. Notwithstanding the
foregoing, in the event of a Merger with an entity that is a direct competitor
of the other party, such party may terminate this Agreement effective on the
date the Merger is consummated upon prior written notice to the other party.
(b) If Distributor distributes, hosts or licenses the Product to or on
behalf of the United States of America, its agencies and/or instrumentalities
(the "Government"), the Product is provided to Distributor be Restricted Rights,
as defined in Title 27 of the Code of Federal Regulations. Distributor shall
comply with any requirements of the Government to obtain such Restricted Rights
protection, including without limitation, the placement of any restrictive
legends on the Product, related documentation, and any license agreement used in
connection with the Product.
(c) Distributor agrees that neither it nor its customers intends to or
will, directly or indirectly, export, host or transmit (i) any copies of the
Product or related documentation and technical data, or (ii) any product (or any
part thereof), process, or service that is the direct product of the Product
without the prior written consent, if required, of the Bureau of Export
Administration of the United States Department of Commerce, or such other
governmental entity as my have jurisdiction over such export or transmission.
Distributor warrants and represents that the Product is importable into any
country in or into which Distributor ships, hosts or otherwise makes available
copies of the Product.
(d) This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and merges all prior and
contemporaneous communications. It shall not be modified except by a written
agreement dated subsequent to the Effective Date and signed on behalf of
Distributor and Netopia by their respective duly authorized representatives.
This Agreement shall control any provisions in purchase orders which are
inconsistent with this Agreement.
(e) Distributor agrees that the terms of this Agreement are confidential
and agrees not to disclose such terms to any third party other than its
attorneys and independent accountants. and as otherwise may be required by law
or regulation, without Netopia's prior written approval.
5
<PAGE>
(f) If any provision of this Agreement shall be held to be illegal, invalid
or unenforceable, the remaining provisions shall remain in full force and
effect, and the provision shall be deemed amended to substitute a valid
provision so as to implement the intent of the parties.
(g) No waiver of any breach of any provision of this Agreement shall
constitute a waiver of any prior, concurrent or subsequent breach of the same or
any other provisions hereof, and no waiver shall be effective unless made in
writing and signed by an authorized representative of the waiving party.
(h) The section headings are intended for convenience only and shall not be
deemed to supersede or modify any provisions.
IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to execute this Agreement as of the Effective Date. All signed
copies of this Agreement shall be deemed originals.
NETOPIA, INC. NEXTTAXI ONLINE COMMUNITIES, INC.
By:____________ By:____________
Printed Name:__Alan Lefkof_____ Printed Name:__Dave Schlenz___
Title:____CEO______ Title:_MGR BUS. DEVELOPMENT____
WEBSITE LINKING AND PROMOTION AGREEMENT
Dated as of ("Effective Date") Agreement No. DEN-980416-5204
-----
NETTAXI, INC. PI GRAPHIX, INC.
("PI GRAPHIX")
Address: Address: 517 Boccaccio Avenue
Venice, CA 90291
Contact: Dean Rositano Contact: Lawrence Weisdorn
Phone: 480.879.9880 Ext. 102 Phone: 310.301.6733
Fax: Fax: 310.301.6730
Email Address: [email protected] E-Mail Address:lawrencewpigraphix.com
This Agreement may refer to PI Graphix or to NetTaxi as a "Party" or PI Graphix
and NetTaxi together as "Parties" to this Agreement.
1. PURPOSE. NetTaxi provides an entertainment, education, and information
service as a part of its NetTaxi Systems ("NETTAXI SERVICE") on numerous sites
("NETTAXI SITES") on the World Wide Web ("WWW") part of the Internet. PI
Graphix provides electronic commerce systems and related information services on
the WWW ("PI GRAPHIX SITE(S)"). NetTaxi and PI Graphix desire to provide links
to the other's sites (collectively, "SITES") and engage in other activities on
the terms and conditions set forth in this Agreement.
2. RESPONSIBILITIES OF THE PARTIES.
2.1 Linking.
-------
(a) PI Graphix shall:
------------------
(i) Manage, maintain, handle all electronic commerce transaction,
and provide all customer services relating to PI Graphix's sites;
(ii) Establish and maintain prominent hypertext links ("SITE
LINKS") from the PI Graphix Sites to the NetTaxi Sites maintained by PI Graphix
as mutually agreed to by the Parties;
(iii) Provide a logo and hypertext mark-up language ("HTML") that
together shall be displayed in the PI Graphix area of the NetTaxi Site ("PI
GRAPHIX BUTTON");
(iv) Use reasonable commercial efforts to provide NetTaxi monthly
sales, usage and demographic data available regarding use of the Sites in
relevant categories; and,
(v) Work with NetTaxi, on an ongoing basis, to identify areas
within the PI Graphix sites where it would be appropriate to provide Site links
to the NetTaxi Sites based on users seeking local information of a type included
in the NetTaxi Sites.
(b) NetTaxi shall:
--------------
(i) In cooperation with PI Graphix, produce Co-branded versions of
the NetTaxi Sites' to be maintained on the NetTaxi servers for users to have
access to the PI Graphix Site. Such Co-branded Pages shall include a graphic
provided by PI Graphix to be displayed in the size agreed to by the Parties and
will be similar in all respects to the primary NetTaxi home pages with the
exception of the addition of the prominently placed PI Graphix logo. The
information accessed through the Co-branded Pages will include but not be
limited to: the PI Graphix 3Dshopping.com areas and related information and
sites. The Co-branded Pages shall provide a Site link back to the PI Graphix
site of origin. A "Back Button" shall be used to accomplish the Site links
back. Such Back Buttons shall be
1
<PAGE>
comprised of a graphic provided by PI Graphix and shall be displayed in the size
specified by PI Graphix and agreed upon by NetTaxi;
(ii) Establish and maintain prominent Site links from its NetTaxi
Sites to PI Graphix Site including but not limited to: the PI Graphix area in
the format of the PI Graphix Button and as mutually agreed to by the Parties;
(iii) Work with PI Graphix, on an ongoing basis, to identify areas
within the NetTaxi Site where it would be appropriate to provide Site links to
the PI Graphix Sites based on users seeking information of a type included in
the PI Graphix's Sites; and
(iv) Use reasonable commercial efforts to provide PI Graphix
monthly usage and demographic data available regarding use of the PI Graphix
Sites in relevant categories.
2.2 Licenses. Each Party grants to the other Party during the term of this
--------
Agreement a non-exclusive, royalty-free, world-wide right and license to use its
trade names, trademarks, service names and service marks ("MARKS") in compliance
with any guidelines which may be provided from time to time. Such use shall be
solely in connection with the NetTaxi Site and PI Graphix Sites, including, but
not limited to, use for promotion and demonstration purposes. Each Party agrees
to maintain a standard of quality for any services offered under the other
Party's Marks commensurate with standards previously achieved and maintained by
the other Party or as may be set by the other Party from time to time. Each
Party has the right to inspect the services offered by the other Party under the
inspecting Party's Marks and may terminate this trademark license grant as set
forth in Section 4 of this agreement. The Parties agree to cooperate with the
other in facilitating the monitoring and control of the other's Marks. Nothing
in this Agreement shall be deemed to grant to the other Party any ownership
interest in the Marks.
2.3 Promotional Efforts.
--------------------
2.3.1 The Parties agree to work together in identifying and pursuing
promotional activities designed to enhance the value of their respective Sites.
These efforts may include the development of a joint co-marketing program that
will allow each Party to access the other's customers/clients, participation in
public relations activities, use of each other's Marks on specific targeted
creative advertising executions, press releases, agreed upon advertising
placement within each other's Sites, and other promotions that benefit both
Parties. NetTaxi will be responsible for the placement and promotion of
banners, editorials, hyperlinks, etc., within NetTaxi's local commerce
community. PI Graphix will provide NetTaxi with the graphics for the Banners
and hyperlinks and with raw data and research material.
2.3.2 Each Party will submit to the other Party, for its prior written
approval, which shall not be unreasonably withheld or delayed, any marketing,
advertising, press releases, and all other promotional materials related to the
NetTaxi Sites or the PI Graphix Sites that reference the other Party and/or its
Marks (the "MATERIALS"). Each Party shall solicit and reasonably consider the
views of the other Party in designing and implementing such Materials. Once
approved, the Materials (other than press releases) may be used by a Party for
the purpose of promoting the NetTaxi Sites or the PI Graphix Sites contained
therein and reused for such purpose until such approval is withdrawn with
reasonable prior notice. In the event such approval is withdrawn (which either
Party may do at its sole discretion), existing inventories of Material may be
depleted. Notwithstanding the foregoing, either Party may issue press releases
and other disclosures as required by law or as reasonably advised by legal
counsel without the consent of the other Party and, in such event, prompt notice
thereof shall be provided to the other Party.
2.4 General.
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2.4.1 Each Party shall be solely responsible for supplying and managing its
Site(s) at its own expense and neither Party shall have any obligations
whatsoever with respect to the Site(s) of the other. Each Party shall manage,
review, delete, edit, create, update and otherwise manage all content and
services available on or
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through its respective Site(s). Neither Party has any obligation to the other
Party to pre-screen content posted by users of its Site(s).
2.4.2 Neither Party shall be required to provide any personal information
regarding specific users, including, without limitation, their names and
addresses or any other information the provision of which could violate any
privacy or other rights of users or third-parties. Neither Party will be
required to include in any reports any information the provision of which to the
other would cause such Party to violate any law, rule or regulation or any
contractual or legal obligation of such Party to any other person.
2.4.3 Each Party shall: (1) provide the other with specified graphic files
and Site link addresses and notify the other in advance of any changes in its
URL(s) and, (ii) if developed and maintained by a Party, provide a Site link
from such Party's appropriate business alliance index (or similar link listing
index) to the other Party's Site(s).
2.4.4 Each Party shall promptly inform the other of (i) any information
related to its Site(s) that could reasonably lead to a claim, demand, or
liability of or against the other Party by any third-party; and (ii) any changes
in its Sites which would substantially change the content in any area to which
the other Party has linked.
2.4.5 Each Party retains the right, in its sole discretion, to immediately
cease linking to the other Party's Site if in such Party's opinion, the other
Party's Site(s) infringes on or violates any applicable law or regulation; any
proprietary right of any third-party; or is defamatory, obscene, offensive or
controversial. Notwithstanding any exercise of, or failure to exercise, such
right, each Party shall have the sole and exclusive responsibility for its
respective Site(s).
2.4.6 Neither Party will place advertising on the Co-branded Pages for
entities which are direct competitors of the other (such as other high-speed
Internet service providers, cable service providers or providers of locally
focused online entertainment, education and information services which are not
owned or controlled by the Party) or advertising for weapons, tobacco products,
distilled spirits, or services related to sexual themes or content.
2.4.7 PI Graphix shall retain all right, title, and interest in and to the
PI Graphix Sites. NetTaxi shall retain all right, title, and interest in and to
the NetTaxi Site. Unless otherwise agreed to in writing, if content is jointly
created by the Parties, the intellectual property rights to such content shall
be jointly owned by the Parties. Neither Party shall license to any third-party
such jointly owned content without the other's written approval.
2.5 Caching. PI Graphix hereby grants to NetTaxi during the term of
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this Agreement a nonexclusive, royalty-free, worldwide license to reproduce,
distribute, perform and display, in whole or in part, the content on the PI
Graphix Site on, from, and in connection with, any NetTaxi Sites and for
promotion and demonstration purposes provided however, that a party licensing
jointly owned content after the termination of this Agreement shall not be
required to account for, or share any royalties, license fees or other
compensation received from the license of jointly owned content.
3 FEES/PAYMENT.
3.1 The parties agree to make payments as set forth in the Fee/Payments
Schedule attached hereto.
3.2 Other than for payments of fixed amounts, payment of all amounts due
under this Agreement shall be made by the responsible Party within thirty (30)
days of the end of each quarter representing payments for the preceding calendar
quarter when such payments accumulate to or exceed REDACTED
or within thirty (30) days of from the expiration or termination of the
Agreement. Reports containing sufficient information for the calculation of
such amounts will be provided to the Party receiving payment. In the event
there is a dispute regarding the amount due, upon reasonable request, a Party
will provide copies of all records or other documentation relevant to the
calculation of such amounts. The Parties agree to maintain records supporting
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fees payable by either Party for a period REDACTED following the date that the
payment was made. The relevant portion of such records and accounts shall be
available for inspection and audit by an auditing Party or its representative
(but not more than once in REDACTED during regular business hours and upon
reasonable advance written notice.
3.3 Each Party agrees to pay directly taxes it incurs under the law.
4 TERM/TERMINATION.
4.1 The initial term of this Agreement shall begin on the Effective Date and
shall continue for a period of REDACTED from the date the Co-branded Pages
and the Back Button are operational ("INITIAL TERM"). This Agreement shall be
automatically extended for successive REDACTED periods (each a "RENEWAL
TERM") unless the Agreement has been terminated in accordance with this Section
4.
4.2 Either Party may terminate this Agreement at any time in the event of a
material breach by any of the other Parties which remains uncured after fifteen
(15) days' written notice thereof. Either Party may terminate this Agreement
for any reason, in whole or in part, without liability to the other Party upon
sixty (60) days written notice to the other Party.
4.3 Notwithstanding anything to the contrary herein, upon written notice,
either Party may immediately terminate this Agreement, in whole or in part,
without liability to the other Party if such Party cancels their Site(s) or any
component thereof necessary to offer the Site links as contemplated hereby.
5 CONFIDENTIALITY.
5.1 Each Party acknowledges and agrees that any and all information relating
to the other Party's business and not publicly known, including without
limitation, the contents of this Agreement, technical processes and formulas,
source codes, names, addresses and information about users and advertisers,
product designs, sales, costs and other unpublished financial information,
product plans, and marketing data is confidential and proprietary information.
Each Party agrees that it shall take reasonable steps, at least substantially
equivalent to the steps as it takes to protect its own proprietary information,
during the term of this Agreement, and for a period of one (1) year following
expiration or termination of this Agreement, to prevent the duplication or
disclosure of any such confidential or proprietary information, other than by or
to its employees or agents who must have access to such information to perform
such Party's obligations hereunder, who shall each treat such information as
provided herein, and as may be required by either of the Parties for public or
private financing. To the extent that such information is publicly known,
already known by, or previously in the possession of the non-disclosing Party;
is independently developed by the non-disclosing Party; is thereafter rightly
obtained by the non-disclosing Party from a source other than the disclosing
Party; or is required to be disclosed by law, regulation, or court order; then
there shall be no restriction of the use of such information.
5.2 Upon the termination or expiration of this Agreement, (i) each Party
shall promptly return or certify as to the destruction of all confidential and
proprietary information and other information, documents, manuals, equipment and
other materials belonging to the other Party; (ii) each Party shall immediately
cease using all materials of the other Party in any form, and (iii) all licenses
granted herein shall terminate. In the event of a partial termination, all
terms and conditions of this Agreement shall remain in full force and effect
with respect to rights and obligations not affected by the partial termination.
6 REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION.
6.1 Representations and Warranties. Each Party represents and warrants
------------------------------
to the other that (i) its Site(s) are or will be functional Internet site(s)
accessible to subscribers and users of the Internet; (ii) the Sites do not and
will not knowingly contain any content, materials, advertising or services that
infringe on or violate any applicable law or regulation, any proprietary right
of any third-party (including copyright, trademark, patent, and trade secret),
or which is defamatory; (iii) it has the right and authority to enter into and
perform all obligations under this Agreement; (iv) it shall comply with all
applicable laws, statutes, ordinances, rules and regulations with respect
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to its Site(s); (v) its site and electronic commerce apparatus are "year 2000"
compliant and can process dates including year 2000 and beyond and will not
crash, slow down or fail to operate as the normal course as a result of its
inability to properly process date information. In the event of an error,
delay, defect, breakdown or failure of its Site, the Party's obligation shall be
limited to the use of reasonable diligence under the circumstances to restore
its Site(s) to operation.
6.2 Indemnity. Each Party will defend, indemnify, save and hold
---------
harmless the other Party's Affiliates, and their officers, directors, agents,
and employees from any and all third-party claims, demands, liabilities, costs
or expenses, including reasonable attorney's fees ("LIABILITIES"), resulting
from the indemnifying Party's breach of any material duty, representation, or
warranty contained in this Agreement, except there shall be no obligation to
indemnify, defend, save and hold harmless where Liabilities result from the
gross negligence or knowing and willful misconduct of the other Party. Each
Party agrees to (i) promptly notify the other Party in writing of an
indemnifiable claim and (ii) give the other Party the opportunity to defend or
negotiate a settlement of any such claim at such other Party's expense and
cooperate fully with the other Party, at that other Party's expense, in
defending or settling such claim. Each Party reserves the right, at its own
expense, to participate in the defense of any matter otherwise subject to
indemnification by the other Party.
6.3 PI Graphix further represents and warrants that the Electronic Commerce
Transactions by it or its assignees and transaction processing apparatus shall
be secure and no third parties or unauthorized PI Graphix employees shall have
access to, or obtain credit card numbers, bank information, account numbers or
other financial information from Nettaxi members engaging in electronic
transactions through PI Graphix Sites or Electronic Commerce apparatus.
7 LIMITATION OF LIABILITY AND DISCLAIMER.
7.1 LIABILITY. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SPECIFICALLY
---------
SET FORTH IN SECTIONS 5 AND 6.2 OF THIS AGREEMENT OR DAMAGES FOR PERSONAL INJURY
OR PROPERTY DAMAGE, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR (1)
DIRECT DAMAGES IN EXCESS OF FIVE THOUSAND DOLLARS ($5,000.00); OR (2) ANY
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (EVEN IF THAT
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM THIS
AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS
OR LOST BUSINESS, EXCEPT THAT EITHER PARTY SHALL BE ENTITLED TO RECEIVE
CONSEQUENTIAL DAMAGES FOR A BREACH OF SECTION 5 (CONFIDENTIALITY) OR BREACH OF
ANY LICENSES GRANTED UNDER THIS AGREEMENT IN AN AMOUNT NOT TO EXCEED FIVE
THOUSAND DOLLARS ($5,000.00).
7.2 NO ADDITIONAL WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS
--------------------------
AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS,
ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY MATTER
SUBJECT TO THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF
DEALING OR COURSE OF PERFORMANCE.
8 GENERAL PROVISIONS.
8.1 Amendment. No change, amendment or modification of any provisions
---------
of this Agreement shall be valid unless set forth in a written instrument signed
by all Parties. This Agreement sets forth the entire agreement and supersedes
any and all prior agreements, written or oral, of the Parties with respect to
the transactions set forth herein.
8.2 Assignment. Neither this Agreement, nor any rights hereunder in
----------
whole or in part, shall be assignable or otherwise transferable by either Party
without the express written consent of the other; provided that NetTaxi may
assign this Agreement: (i) to any successor in interest to all or substantially
all of its Service, (ii) to any parent, subsidiary, or Affiliate of NetTaxi,
and/or (iii) to any joint venture with Time Warner for the provision
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of broadband information services, if such assignee agrees in writing to be
bound by the terms and conditions of this Agreement. For purposes of this
Agreement, the term "AFFILIATE" means any entity wholly owned by NetTaxi or
which, directly or indirectly through one or more intermediaries, controls, or
is controlled by, or is under common control with, NetTaxi. For purposes of
this paragraph, "control" means (i) in the case of corporate entities, direct or
indirect ownership of more than twenty (20%) of the stock or shares entitled to
vote for the election of the board of directors or other governing body of the
entity; or (ii) in the case of non-corporate entities, direct or indirect
ownership of more than twenty (20%) of the equity interest.
8.3 Compliance with Laws. This Agreement and the Parties' actions under
--------------------
this Agreement shall comply with all applicable federal, state, and local laws,
rules, regulations, court orders, and governmental or regulatory agency orders.
8.4 Construction. In the event that any provision of this Agreement
------------
conflicts with the law under which this Agreement is to be construed, or if any
such provision is held invalid by a court with jurisdiction over the Parties to
this Agreement, such provision shall be deemed to be restated to reflect as
nearly as possible the original intentions of the Parties in accordance with
applicable law, and the remainder of this Agreement shall remain in full force
and effect.
8.5 Dispute Resolution. Any claim, controversy, or dispute between the
-------------------
Parties, their Affiliates, their approved assignees, agents, employees,
officers, or directors ("DISPUTE") shall be resolved by arbitration conducted by
a single arbitrator engaged in the practice of law and familiar with the subject
matter of the Dispute, under the then current rules of the American Arbitration
Association ("AAA"). The arbitrator shall have authority to award injunctive
relief and/or compensatory damages only, as allowed herein. The arbitrator's
award shall be final and binding and may be entered in any court having
jurisdiction thereof. The prevailing Party, as determined by the arbitrator,
shall be entitled to an award of reasonable attorneys' fees and costs. The
arbitration shall occur in the City and State of the Party against whom the
arbitration is brought, and the laws of the State of California shall govern the
construction and interpretation of the Agreement. It is expressly agreed that
the arbitrator shall be authorized to issue injunctive relief pending a final
arbitration decision and either Party may seek a temporary restraining order
from an appropriate court of law for a period of time needed for the designation
of an arbitrator and the arbitrator's assuming responsibility for the Dispute
including whether to issue injunctive relief pending a final arbitration
decision.
8.6 Independent Contractors. The Parties to this Agreement are
------------------------
independent contractors. No Party is an agent, representative, or partner of
the other Party. No party shall have any right, power or authority to enter
into any agreement for, or on behalf of, or incur any obligation or liability
of, or to otherwise bind, the other Party. This Agreement shall not be
interpreted or construed to create an association, agency, joint venture or
partnership between the Parties or to impose any liability attributable to such
a relationship upon either Party.
8.7 No Waiver. The failure of either Party to insist upon or enforce
----------
strict performance by the other Party, of any provision of this Agreement, or to
exercise any right under this Agreement, shall not be construed as a waiver or
relinquishment of such Party's right to enforce any such provision or right in
any other instance.
8.8 Notice. Any notice, approval, request, authorization, direction or
------
other communication under this Agreement shall be given in writing and shall be
deemed to have been delivered and given for all purposes (i) on the delivery
date if delivered by electronic mail; (ii) on the delivery date if delivered
personally to the Party to whom the same is directed; (iii) one (1) business day
after deposit with a commercial overnight carrier with written verification of
receipt; or (iv) five (5) business days after the mailing date whether or not
actually received, if sent by U. S. mail, return receipt requested, postage and
charges prepaid, or any other means of rapid mail delivery for which a receipt
is available to the Contact at the address of the Party to whom the same is
directed.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date first above written.
NETTAXI PI GRAPHIX
Signatory: Signatory:
Title: Title:
Date: Date:
CONFIDENTIAL AND PROPRIETARY
The contents of this document are confidential and proprietary and may not be
disclosed to any person who does not have a need to know.
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FEE/PAYMENT SCHEDULE
--------------------
NetTaxi and PI Graphix agree to equally split the gross sales commission
received from third parties for sales of products and services from the
Co-branded pages. PI Graphix will pay NetTaxi its portion of the Commission on
a monthly basis. NetTaxi shall have administrative access into PI Graphix's
financial transaction web server for confirmation of sales reporting.
CONFIDENTIAL AND PROPRIETARY
The contents of this document are confidential and proprietary and may not be
disclosed to any person who does not have a need to know.
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DEVELOPMENT AGREEMENT
(NETTAXI)
This Development Agreement (the "Agreement') is dated as of December 16, 1998
between the Big Not-work Inc., a Delaware corporation, with its principal place
of business located at 2680 Bancroft Way, Berkeley, CA 94704 (the "Company") and
NetTaxi On-Line Communities, a Delaware corporation, with its principal place of
business located at 2165 S. Bascom Ave., Campbell, CA. 95008 ("Net:Taxi"),
Pursuant to this Agreement, the Company and NetTaxi will develop, publish,
display and promote Internet-based games for users of NetTaxi's Internet
aggregation service. The Company and NetTaxi will share the revenue resulting
from the business relationship, as described herein.
Accordingly, in exchange for the mutual promises contained herein, the parties
hereby agree as follows;
1. BACKGROUND.
1.1 The Company. The Company offers Internet-based games from its
Internet site located at http://www,bignetwork.com.
1.2 NetTaxi. NetTaxi operates a website community and aggregation site
on the World Wide Web located at http://www.nettaxi.corn.
2. DEFINITIONS.
"Advertisements" means all banner advertisements, portals, links, buttons and
other promotions for third parties displayed on the Game Pages.
"Company Marks" means any trademarks, trade names, service marks and logos that
may be delivered by the Company to NetTaxi expressly for inclusion in promotions
for the Games,
"Company Service" means any product or service sold or otherwise distributed by
the Company (but not third parties) on or through the Game Pages or the Company
Site,
"Company Site" means the Internet site currently located at
http;//www.bignetwork.com, through which the Company offers Internet-based games
directly to end users, together with any successors thereto.
"Development Schedule" means the mutually agreed upon development schedule set
forth in Exhibit A (the "Development Schedule", as such development schedule may
be modified or amended from time to time through written agreement between the
parties.
"Game Pages" Means Internet pages to be developed and hosted by the Company, in
accordance with this Agreement, through which Users will be able to register for
and/or play the Games via the NetTaxi Site, including through individual member
pages on the NetTaxi site.
"Game Revenue" means revenue derived by NetTaxi, through Advertisements on the
Game Pages or through other means in connection with the publication, display or
other use of the Games, less any associated advertising agency commissions
(provided, however, that such
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advertising agency commissions may not in any case exceed 35% of the Game
Revenue).
"Games" means Java-based card games, board games and other games to be offered
to Users of the Game Pages.
"Look and reel" means the look and feel, user interface and flow of user
experience of an Internet site.
"Minimum Deliverables" means the minimum Game Pages and Games sufficient to
launch the Game Pages as part of the NetTaxi site, as more specifically
identified in the Development Schedule.
"NetTaxi Marks" means any trademarks, trade names, service marks and logos
delivered by NetTaxi to the Company expressly for inclusion in the Game Pages.
"NetTaxi Site" means the Internet site currently located at
http://www.nettaxi.com, and any successors thereto.
"Term" means the term of this Agreement, as set forth in Section 5.
-----------
"User" means a user of the NetTaxi Site.
"User Data" means name, address and other registration or demographic data and
any information concerning traffic or usage levels or patterns.
3. DEVELOPMENT AND IMPLEMENTATION.
3.1 The Company will develop the Game Pages and the Games in accordance with
the Development Schedule.
3.2 The Company will insure that the Look and Feel of the Game Pages is
reasonably consistent with the Look and Feel of the NetTaxi Site throughout
the Term, so that the Game Pages appear to be part of the NetTaxi Site
rather than a separate site. The Company and NetTaxi will cooperate reasonably
and in good faith to ensure a seamless user experience as Users move between
the NetTaxi Site and the Game Pages. NetTaxi will provide mock-ups, logos
and other materials as reasonably necessary to allow the Company to achieve
the required Look and Feel for the Game Pages. Company Marks included on the
Game Pages will link back to the Company Site. Each Game Page will include a
promotional tag for the Company, reasonably acceptable to NetTaxi and the
Company, indicating that the Company is the sole provider of Games for NetTaxi
and including a link to a site designated by the Company,
3.3 The Company will host and maintain the Game Pages on its servers and
will be responsible for providing all necessary computer hardware, software
and bandwidth for such purposes. The Company and NetTaxi will use reasonable
efforts (including by selecting appropriate URL:s for the Game Pages within
the NetTaxi.com domain) to ensure that it appears to Users that the Game Pages
are part of the NetTaxi Site.
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3.4 The Company will ensure that the quality, functionality and reliability
of the Game Pages and the Games does not decline in any material respect
after initial acceptance by NetTaxi.
3.5 In addition to the specific requirements set forth above, the Company
will be responsible for ensuring that the Games and the, Game Pages function
with reasonable reliability and in a commercially reasonable manner
throughout the Term.
3.6 The Company will provide support services to NetTaxi personnel and to
Users of the Game Pages as described in Exhibit B.
-----------
4. PROMOTION OF THE GAME PAGES. Following acceptance by NetTaxi of the
Minimum Detiverables, NetTaxi will incorporate links to the Came Pages into the
NetTaxi Site for the purpose of generating traffic to the Came Pages, which
shall be subject to reasonable review and approval by the Company. In
particular, NetTaxi will display promotions for the Game Pages on the "home" or
first page of the NetTaxi Site and through links within the Arcade community
within the Site, subject to reasonable review and approval by the Company.
5. REVENUE SHARING.
5.1 NetTaxi will manage the sales effort with respect to all Advertisements
to be sold on the Game Pages, and will be responsible for delivering such
Advertisements to the Company for display on the Game Pages and for all related
billing and collecting services. The Company will cooperate reasonably and in
good faith with NetTaxi with respect to such sales activities. The Company and
NetTaxi will cooperate reasonably and in good faith to develop appropriate
procedures and technologies to allow NetTaxi to serve Advertisements for the
Game Pages remotely.
5.2 Within 30 days after the end of each month during the Term, NetTaxi will
pay the Company an amount equal to REDACTED of all Game Revenue generated during
such month from the NetTaxi Site, An invoice showing the calculation of the
amount owed to the Company will accompany each payment.
5.3 Upon reasonable request, the Company may engage an independent
accounting firm to audit the books and records of NetTaxi directly applicable to
the calculation of required payments hereunder by providing written notice to
NetTaxi at least 30 days before initiation of such audit. The Company shall be
limited to two audits in any 12 month period, and each audit shall be conducted
during a specified audit period of reasonable length, which will be established
by NetTaxi at least once during each calendar quarter.
6. TERM AND TERMINATION.
6.1 The term of this Agreement (the "Term") will begin on the date hereof
and will continue until the first anniversary of the date hereof, unless
otherwise terminated as provided in this Agreement. Thereafter, the Term
will be automatically extended for successive one month periods until terminated
by either party on 30 days written notice.
6.2 If either party commits a material breach of its obligations hereunder
that is not cured within 30 days after notice thereof from the non-breaching
party, the non-breaching
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party may terminate this Agreement at any time by giving written notice of
termination to the breaching party.
6.3 The Company or its successor may terminate this Agreement upon 60 days
prior written notice in the event of a sale of all or substantially all of the
assets of the Company.
6.4 The provisions of Section 11.6 and any obligations arising prior to
termination will survive any termination of this Agreement.
7. Users. All Users sent to the Game Pages must be able to register and
authenticate using existing NetTaxi member names and passwords.
8. INTELLECTUAL PROPERTY.
8.1 As between the Company and NetTaxi, the Company will retain all right,
title and interest in and to the Games and to the content of the Game Pages,
excluding the Look and Feel of the NetTaxi Site to the extent embodied in the
Game Pages. NetTaxi will be responsible for providing the Company with any
necessary or appropriate license agreements to be entered into online within
the Game Pages by Users of the Games,
8.2 The Company hereby grants to NetTaxi a non-exclusive, royalty-free
license, effective throughout the Term, to use, display and publish the Company
Marks solely within promotions for the Game Pages. Any use of the Company Marks
by NetTaxi must comply with any reasonable usage guidelines communicated by the
Company to NetTaxi from time to time. Nothing contained in this Agreement will
give NetTaxi any right, title or interest in or to the Company Marks or the
goodwill associated therewith, except for the limited usage rights expressly
provided above. NetTaxi acknowledges and agrees that, as between the Company and
NetTaxi, the Company is the sole owner of all rights in and to the Company
Marks.
8.3 NetTaxi hereby grants to the Company a non-exclusive, royalty free
license, effective throughout the Term, to use, display and publish the NetTaxi
Marks solely within the Game Pages and to use the Look and Feel of the NetTaxi
Site on the Game Pages as contemplated by Section 3.2. Any use of the NetTaxi
Marks or such Look and Feel by t'he Company must comply with any reasonable
usage guidelines communicated to the Company by NetTaxi from time to time.
Nothing contained in this Agreement will give the Company any right, title or
interest in or to the NetTaxi Marks, such Look and Feel or the goodwill
associated therewith, except for the limited usage rights expressly provided
above. The Company acknowledges and agrees that, as between the Company and
NetTaxi, NetTaxi is the sole owner of all rights in and to the NetTaxi Marks and
the Look and Feel of the NetTaxi Site.
9. RESPONSIBILITY FOR Games and Company Services. The Company acknowledges
and agrees that, as between the Company and NetTaxi, the Company will be
responsible for any claims or other losses associated with or resulting from the
distribution or use of the Games, the operation of the Game Pages and the sale
or other distribution of any Company Services by the Company or through the Game
Pages; provided however that the Company shall be liable only to the extent of
its own negligence in connection with claims for which NetTaxi is contributorily
negligent. NetTaxi is not authorized to make, and agrees not to make, any
representations or
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warranties concerning the Games, the Game PAGES or any Company Services, except
to the extent (if any) contained within promotions for the Game Pages delivered
to NetTaxi by the Company or approved by the Company.
10. MUTUAL INDEMNIFICATION.
10.1 Indemnification by NetTaxi. NetTaxi shall indemnify and hold the
Company harmless from and against any costs, losses, liabilities and expenses,
including all court costs, reasonable expenses and reasonable attorneys' fees
(collectively, "Losses") that NetTaxi may suffer, incur or be subjected to by
reason of any legal action, proceeding, arbitration or other claim by a third
party, whether commenced or threatened, arising out of or as a result of (a) the
use of NetTaxi Marks by the Company in accordance with this Agreement; (b) the
content of the NetTaxi Site (except for content provided by NetTaxi); (c) any
content provided by NetTaxi for display on the Game Pages and any negligent act
of NetTaxi with respect to the Game Pages.
10.2 Indemnification by the Company. The Company shall indemnify and hold
NetTaxi harmless from and against any Losses that NetTaxi may suffer, incur or
be subjected to by reason of any legal action, proceeding, arbitration or other
claim by a third party, whether commenced or threatened, arising out of or as a
result of (a) the use of the Company Marks by NetTaxi in accordance with this
Agreement; (b) any content provided by the Company to NetTaxi for display on the
Company Site; (e) the operation of the Game Pages or the Company Site or the
distribution of the Games or any Company Services by the Company or through the
Game Pages.
10.3 Indemnification Procedures. If any party entitled to indemnification
under this Section (an "Indemnified Party") makes an indemnification request to
the other, the Indemnified Party shall permit the other party (the "Indemnifying
Party") to control the defense, disposition or settlement of the matter at its
own expense; provided that the Indemnifying Party shall not, without the consent
of the Indemnified Party enter into any settlement or agree to any disposition
that imposes an obligation on the Indemnified Party that is not wholly
discharged or dischargeable by the Indemnifying Party, or imposes any conditions
or obligations on the Indemnified Party other than the payment of monies that
are readily measurable for purposes of determining the monetary indemnification
or reimbursement obligations of Indemnifying Party. The Indemnified Party shall
notify Indemnifying Party promptly of any claim for which Indemnifying Party is
responsible and shall cooperate with Indemnifying Party in every commercially
reasonable way to facilitate defense of any such claim; provided that the
Indemnified Party's failure to notify Indemnifying Party shall not diminish
Indemnifying Party's obligations under this Section except to the extent that
Indemnifying Party is materially prejudiced as a result of such failure. An
Indemnified Patty shall at all times have the option to participate in any
matter or litigation through counsel of its own selection and at its own
expense.
11. MISCELLANEOUS.
11. 1 LIMITATION OF DAMAGES. NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL,
INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED TO THIS
AGREEMENT, HOWEVER CAUSED AND ON
5
<PAGE>
ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), AND EVEN IF SUCH PARTY HAS BEEN
ADVISED OF TM POSSIBILITY OF SUCH DAMAGES. FURTHEIZ, EXCEPT FOR ANY CLAIM FOR
TNDEMNTFICATION ARISING UNDER SECTION 10 ABOVE AND 11.6, IN NO EVENT SHALL
EITI-WR PARTY BE LIABLE FOR DAMAGES IN EXCESS OF TBE TOTAL PAYMENTS REQUIRED TO
BE MADE UNDER THIS AGREEMENT DURING THE PRIOR t2 MONTHS.
11.2 Assignment. NetTaxi may not assign this Agreement, except (a) in
connection with the transfer of substantially all of the business operations of
NetTaxi (whether by asset sale, stock sale, merger or otherwise); or (b) with
the written permission of the Company, which will not be unreasonably withheld.
The Company may not assign this Agreement, except (a) in connection with the
transfer of substantially all of the business operations of the Company (whether
by asset sale, stock sale, merger or otherwise); or (b) with the written
permission of the Company, which will not be unreasonably withheld,
11.3 Relationship of Parties. This Agreement will not be construed to
create a joint venture, partnership or the relationship of principal and agent
between the parties hereto, nor to impose upon either party any obligations for
any losses, debts or other obligations incurred by the other party except as
expressly set forth herein,
11.4 Entire Agreement. This Agreement constitutes and contains the
entire agreement between the parties with respect to the subject matter hereof
and supersedes any prior oral or written agreements, This Agreement may not be
amended except in writing signed by both parties. Each party acknowledges and
agrees that the other has not made any representations, warranties or agreements
of any kind, except as expressly set forth herein.
11.5 Applicable Law. This Agreement will be construed in accordance with
and governed by the laws of the State of California, without regard to
principles of conflicts of law.
11.6 Confidentiality. In connection with the activities contemplated by
this Agreement each party may have access to confidential or proprietary
technical or business information of the other party, including without
limitation (a) proposals, ideas or research related to possible new products or
services; (b) financial information; and (c) the material terms of the
relationship between the parties; provided, however, that such information will
be considered confidential only if it is expressly designated as Confidential
Information in this Agreement or conspicuously designated as "Confidential" in
writing or, if provided orally, identified as confidential at the time of
disclosure and confirmed in writing within 10 days of disclosure (collectively,
"Confidential Information"). Each party will take reasonable precautions to
protect the confidentiality of the other party's Confidential information, which
precautions will be at least equivalent to those taken by such party to protect
its own Confidential Information. Except as required by law or as necessary to
perform under this Agreement, neither party will knowingly disclose the
Confidential Information of the other party or use such Confidential Information
for its own benefit or for the benefit of any third party. Each party's
obligations in this Section with respect to any portion of the other party's
Confidential Information shall terminate when the party seeking to avoid its
obligation under this Section can document that: (i) it was in the public domain
at or subsequent to the time it was communicated to the receiving party
("Recipient") by the disclosing party ("Discloser") through no fault of
Recipient; (ii) it was
6
<PAGE>
rightfully in Recipient's possession free of any obligation of confidence at or
subsequent to the time it was communicated to Recipient by Discloser; (iii) it
was developed by employees or agents of Recipient independently of and without
reference to any information communicated to Recipient by Discloser; or (iv) the
communication was in response to a valid order by a court or other governmental
body, was otherwise required by law or was necessary to establish the rights of
either party under this Agreement
11.7 Press Release. Each party may issue a press release concerning the
business relationship contemplated in this Agreement, and each party will
provide an appropriate quote from one of its senior executive officers for use
in the other party's release. Each party will provide the other with a
reasonable opportunity to review and comment on its press release.
11.8 Attorney Fees. In any action or suit to enforce any right or remedy
under this Agreement or to interpret any provision of this Agreement, the
prevailing party shall be entitled to recover its costs, including reasonable
attorneys' fees.
11.9 Dispute Resolution. In the event that any dispute arises hereunder, the
parties agree that prior to commencing litigation, arbitration, or any other
legal proceeding, each party shall send an officer of such party to negotiate a
resolution of the dispute in good faith at a time and place as may be mutually
agreed. Each officer shall have the power to bind its respective party in a.11
material respects related to the dispute. If the parties cannot agree on a time
or place, upon written notice from either party to the other, the negotiations
shall be held at the principal executive offices of the Company 21 days
following such notice (or on the next succeeding business day, if the 21 st day
is a weekend or holiday).
11.10 Authority; No Conflicts. NetTaxi hereby represents and warrants to the
Company that it has the right and authority to enter into this Agreement and to
carry out its obligations hereunder. The execution, delivery and performance of
NetTaxi's obligations under this Agreement do not conflict with any other
agreement to which NetTaxi is a party.
IN WITNESS WIMREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the date first written above.
THE BIG NETWORK, INC. NETTAXI, INC.
By: By:
Name: Name:
Title: Title:
7
<PAGE>
EXHIBIT A
DEVELOPMENT SCHEDULE
8
<PAGE>
EXHIBIT B
Support Services
1. Definition
----------
"Hours of Operation" means Monday to Friday 6:OOAM - 5:OOPM PST (Pacific
Standard Time) or other hours of operation at least as favorable to end users of
the Game Pages,
"Problem" means any error, bug, or malfunction that causes any feature of the
Game Pages to perform unpredictably or to otherwise become intermittently
unavailable or that causes the Game Pages to have a material degradation in
response time performance,
"Severe Problem" means any error, bug, or malfunction that causes the Game Pages
to become inaccessible to Users for 15 consecutive minutes or longer.
"Enhancement Request" means any suggestion regarding the design, aesthetics,
functionality, content, or other feature, of the Game Pages or the Games that is
not a Problem or a Severe Problem.
"Fix" means a correction, fix, alteration or workaround that solves a Problem or
a Severe Problem.
2. Contact points.
----------------
2.1 NetTaxi Technical Support Personnel. NetTaxi will designate no more than
two NetTaxi employees or contractors as qualified to contact the Company for
technical support. NetTaxi will ensure NetTaxi Technical Support Personnel have
received adequate training from the Company, as described in this Exhibit, and
are otherwise capable of providing technical support. NetTaxi will provide the
Company with the names, email addresses, telephone numbers and pager numbers of
NetTaxi Technical Support Personnel no later than one week prior to the launch
date of the Game Pages, NetTaxi may change its designated Technical Support
Personnel at its discretion with reasonable notice to the Company.
2.2 Company Technical Support Personnel, The Company will designate one
primary and one backup Technical Support employee or contractor to provide
technical support to NetTaxi. The Company will ensure that its Technical Support
Personnel are adequately trained to provide technical support to NetTaxi. The
Company will provide NetTaxi with the names, email addresses, telephone numbers
and pager numbers of the Company Technical Support Personnel no later than one
week prior to the launch date of the Game Pages. The Company may change its
designatBd Technical Support Personnel at its discretion with reasonable notice
to NetTaxi.
9
<PAGE>
3. Support procedures.
--------------------
3.1 All Problems reported by NetTaxi Technical Support Personnel to the
Company must be submitted via email to [email protected]
3.2 If NetTaxi believes it is reporting a Severe Problem, NetTaxi will
accompany its email request with a phone call and page to the Company Technical
Personnel.
3.3 Upon receiving an email report from NetTaxi, the Company will, in its
reasonable discretion, determine whether the email request is a Problem, a
Severe Problem or an Enhancement Request. The Company will respond to the email
request and provide a Fix as described in Section 4,of this Exhibit.
-----------
3.4 The Company will use commercially reasonable efforts to inform NetTaxi
Technical Support Personnel of Fixes.
4. Support, levels.
-----------------
4.1 The Company will provide technical support to Users of the Game Pages or
the Games who email or otherwise contact the Company directly with questions
about the Game Pages or the Games. The Company will use its commercially
reasonable efforts to respond to such emails within two business days, and to
Fix any Problems as fast as is commercially reasonable, NetTaxi will use its
commercially reasonable efforts to inform the Company of any Enhancement
Requests that NetTaxi receives from Users of the Game Pages or that NetTaxi
otherwise develops through its own efforts.
4.2 The Company will provide the following technical support solely to
NetTaxi Technical Support Personnel:
<TABLE>
<CAPTION>
RECEIPT OF TYPE OF EMAIL TARGET RESPONSE TARGET FIX TIME AND REPORTING
EMAIL REQUEST TIME FROM EMAIL
REQUEST RECEIPT
<S> <C> <C> <C>
During Problem Within four hours Commercially reasonable with
Hours of weekly status reports to NetTaxi
Operation or
other times
During Severe Problem Within two hours Commercially reasonable efforts
Hours of with daily status reports to
Operation NetTaxi
During other Severe Problem Within three hours Commercially reasonable efforts
times with daily status reports to
NetTaxi
During Enhancement As soon as In the Company's reasonable
Hours of Request commercially discretion
Operation or reasonable
others times
</TABLE>
10
<PAGE>
EXHIBIT A
EXHIBIT A: NETTAXI DEVELOPMENT SCHEDULE
Web Integration
Registraton system conference call 03/08/99
Templates delivered by NetTaxi 03/10/99
Web Integration COMPLETE 03/15/99
Game launch (Minimum Deliverables) 03/22/99
Chess
Checkers
Reversi
Backgammon
Morph
Spades
Phase 11 Games
Hearts April
Poker April
Blackjack May
Phase III Games
Game 1 May
Game 2 May
Game 3 May
11
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
consolidated financial statements of Nettaxi, Inc. as of December 31, 1998 and
1997 and for the year ended December 31, 1998 and for the period from October
23, 1997 (date of incorporation) to December 31, 1997 and is qualified in its
entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1
<S> <C> <C>
<PERIOD-TYPE> YEAR YEAR
<FISCAL-YEAR-END> DEC-31-1998 DEC-31-1997
<PERIOD-START> JAN-01-1998 JAN-01-1997
<PERIOD-END> DEC-31-1998 DEC-31-1997
<CASH> 465,800 49,500
<SECURITIES> 0 0
<RECEIVABLES> 164,900 60,100
<ALLOWANCES> 31,200 0
<INVENTORY> 0 0
<CURRENT-ASSETS> 615,600 112,500
<PP&E> 1,334,900 2,040,000
<DEPRECIATION> 297,800 70,200
<TOTAL-ASSETS> 1,652,700 2,082,300
<CURRENT-LIABILITIES> 315,200 335,400
<BONDS> 0 0
0 0
0 100
<COMMON> 10,800 2,600
<OTHER-SE> 1,321,300 970,700
<TOTAL-LIABILITY-AND-EQUITY> 1,652,700 2,082,300
<SALES> 258,000 144,900
<TOTAL-REVENUES> 258,000 144,900
<CGS> 239,800 87,400
<TOTAL-COSTS> 3,100,500 199,600
<OTHER-EXPENSES> 0 0
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 68,800 17,000
<INCOME-PRETAX> (3,112,800) (159,100)
<INCOME-TAX> 800 600
<INCOME-CONTINUING> (3,127,900) (327,200)
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> (3,127,900) (327,200)
<EPS-PRIMARY> (.37) (.06)
<EPS-DILUTED> (.37) (.06)
</TABLE>
