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SPEEDYCLICK.COM SERVICES AGREEMENT
This agreement ("Agreement") is entered into as of May 26, 2000
(the "Effective date") by and among NETWORK COMMERCE INC., a
Washington corporation with offices at 411 First Avenue S., Suite
200N, Seattle, Washington 98104 ("Network Commerce"),
SPEEDYCLICK, INC., a California corporation and division of
Network Commerce with offices at 500 N. Brand St., 18th Floor,
Glendale, California 91203 ("SpeedyClick"), and BIDBAY.COM, INC.,
a Nevada corporation with offices at 7209 Foothill Blvd.,
Tujunga, California 91042 ("Client").
WHEREAS, SpeedyClick creates and operates an online
entertainment site located at http://www.speedyclick.com (the
"Site") and maintains certain other affiliate cites (Site,
together with affiliate sites, the "SpeedyClick Network").
WHEREAS, Client is an online Web site located at
http://www.bidbay.com and the parties desire that SpeedyClick
provide certain services to Client as outlined in Exhibit A
hereto;
NOW, THEREFORE, the parties hereby agree as follows:
1. Duties of SpeedyClick.
1.1 Services. SpeedyClick shall provide to Client certain
services outlined on Exhibit A, attached hereto (the "Services")
in accordance with the terms and conditions of this Agreement.
SpeedyClick shall complete and deliver the Services to Client in
conformance with the specifications for such Services described
in, and will complete and deliver the Services to the Client
according to, Exhibit A. SpeedyClick is not responsible for any
delays or failure to deliver Services due to acts or failures to
act of Client or to events beyond SpeedyClick's reasonable
control. SpeedyClick shall maintain an up-time for the Site of
at least ninety-eight percent (98%) calculated on a calendar
month basis. Planned system downtime shall be excluded from such
up-time percentage, provided that planned system downtime does
not exceed eight (8) hours in any month. All planned system
downtime will be communicated to Client at least forty-eight (48)
hours in advance, whenever possible. Notwithstanding the
foregoing, Client acknowledges that periodic unavailability of
the Site and unrelated computer server and network failures may
be beyond the reasonable control of SpeedyClick, and, if so, will
not hold SpeedyClick liable for any damages, credits or losses
resulting from such unavailability or failures.
2. Duties of Client. Client shall deliver to Network Commerce
its unaudited balance sheets and statements of income and
expenses as of and for (a) the six0-month period ending June 30,
2000, (b) the nine-month period ending September 30, 2000, and
the twelve month period ending December 31, 2000, each of which
shall have prepared in conformity with generally accepted
accounting principles in the United States on a basis consistent
with prior accounting periods and fairly represent the financial
position, results of operations and changes in financial position
of Client as the dates and for the periods indicated.
3. Fees and Payments.
3.1 Fees Payable to SpeedyClick. Client agrees to pay
SpeedyClick the Monthly Service Fees as set forth on Exhibit A.
Unless otherwise indicated, SpeedyClick shall invoice Client for
payments due and all payments shall be made within thirty (30)
days of invoice. Any late payments will be assessed late fees of
one and one-half percent per month or the highest amount
permitted by applicable law, whichever is less. All payments
will be made in U.S. Dollars.
3.2 Fees Payable to Network Commerce. Notwithstanding
anything to the contrary contained herein, a portion of the fees
related to the Services provided pursuant to this Agreement, all
of which are described in Exhibit A hereto, shall be paid through
the issuance of shares (such shares, the "Service Shares") of the
Client's preferred stock ("Client Preferred Stock") to Network
Commerce at a per share price equal to $5.00 (the "Conversion
Price"). Upon execution of this Agreement, Client shall issue
stock certificates representing 200,000
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shares of Client
Preferred Stock to Network Commerce, which amount is equal to the
estimated service fees described on Exhibit A hereto that are
required to be paid in equity of the Client over the Initial Term
(the "Deposited Shares"). If Client elects to renew this
Agreement in accordance with Section 10.1 hereof, immediately
upon the beginning of the Renewal Term, Client shall issue to
Network Commerce a stock certificate representing that number of
additional Service Shares equal to the amount of the estimated
service fees that are required to be paid in equity of the Client
over the Renewal Term (the "Renewal Deposited Shares"). Each of
the Service Shares shall be subject to a Restricted Stock
Agreement between Network Commerce and Client (the "Restricted
Stock Agreement"), pursuant to which Network Commerce will agree
to forfeiture represented by the Restricted Stock Agreement (the
"Risk of Forfeiture") if the Services are not delivered within
the timeframe specified in this Agreement. Notwithstanding the
foregoing, a pro rata portion of the Services Shares shall be
released from the Risk of Forfeiture on a monthly basis during
this Agreement on the same date that the monthly Service Fees
contemplated on Exhibit A hereto are due. Network Commerce will
forfeit Service Shares required to be forfeited pursuant to the
Restricted Stock Agreement, if any, promptly after the later to
occur of (i) the end of the Initial Term (as defined below) and
(ii) the end of the Renewal Term (As defined below). If the
number of Deposited Shares or Renewal Deposited Shares is
insufficient to satisfy all amounts owing to Network Commerce in
shares of Client Preferred Stock under this Agreement, Client
shall promptly issue additional certificates representing that
number of shares of Client Preferred Stock equal to the unpaid
amount of fees related to the Services, which amount is based on
the Conversion Price. The Restricted Stock Agreement shall
contain customary terms and conditions. During the period that
the Service Shares are subject to the Restricte4d Stock
Agreement, such shares shall be held of record by an owned by
Network Commerce for all purposes, and Network Commerce shall
have full right to vote the Service Share on all matters
concerning before the Shareholders of Client. For federal and
state income tax purposes, any dividends or other distributions
with respect to the Service Shares shall be income of Network
Commerce. Any attempt by Network Commerce to sell, exchange,
transfer, pledge or otherwise dispose of Service Shares prior to
the expiration of the restrictions set forth in the Restricted
Stock Agreement shall be null and void and shall no force or
effect. Network Commerce is aware and understands that (a) the
Service Shares have not been and will not prior to issuance be
registered under the Securities Act of 1933, as amended (the
"Securities Act"), (b) Client is issuing the Service Shares in
reliance on the representations and warranties of Network
Commerce as set forth below and (c) the Service Shares cannot be
sold unless they are subsequently registered or an exemption from
registration is available. Network Commerce understands that,
prior to the effectiveness of a registration statement
registering the Service Shares for sale, if any, certificates or
other instruments representing the Service Shares will bear
legend substantially similar to the following, in addition to any
other legends required by federal or state laws:
The securities evidenced by this certificate
have not been registered under the Securities
Act of 1933, as amended (the "Act"), and have
not been taken by the issue for investment
purposes. These securities may not be sold
or transferred unless (a) they have been
registered under the Act, or (b) the Company
(or its transfer agent) is presented with
either a written opinion of counsel
satisfactory of the Company, a "no-action" or
interpretive letter from the Securities and
Exchange Commission, or other evidence
satisfactory to the Company, to the effect
that registration is not required under the
circumstances of the sale or transfer.
The securities represented by this
certificate are subject to the terms and
conditions of a certain Restricted Stock
Agreement, as amended from time to time, and
may not be sold, transferred encumbered,
except in accordance with the terms and
provisions of said agreement, a copy of which
is on file at the principal executive office
of the Company and will be furnished to the
holder of this certificate upon request
without charge.
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3.3 Third Parties. Each party agrees that if any fees are
owed to a third party as a result of an agreement or other
arrangement between contracting party and said third party, such
fees will be paid entirely by the contracting party and the
other, noncontracting party shall have not payment obligation or
other liability whatsoever with respect to such fees.
4. Licenses and Rights
4.1 SpeedyClick Property. All property, work products,
ideas, inventions, discoveries, improvements, programs, know-how,
specifications and other materials or information, tangible or
intangible, conceived or owed by SpeedyClick prior to the
Effective Date ("SpeedyClick Property") shall belong exclusively
to SpeedyClick, subject to the license rights to Client as
provided herein. As between Client and SpeedyClick shall retain
title and all ownership rights to the SpeedyClick Property
(including any code of SpeedyClick's licensors that may be
included therein) and all other software and proprietary
processes and content of SpeedyClick and its licensors used in or
connection with providing the Services (collectively,
"SpeedyClick Technology"). This Agreement shall not be construed
in any manner as transferring to Client any right of ownership of
the SpeedyClick Property and SpeedyClick Technology, except as
specifically stated herein, and Client shall make no claim
contrary to the foregoing.
4.2 Client Property. All property, work product, ideas,
inventions, discoveries, improvements, programs, know-how,
specifications and other materials or information, tangible or
intangible, conceived or owned by Client prior to the Effective
Date ("Client Property"), shall belong exclusively to Client,
subject to the rights granted to SpeedyClick herein. As between
Client and SpeedyClick, Client shall retain title and all
ownership rights to the Client Property (including any code of
Client or Client's licensors that may be included therein) and
all other software and proprietary processes and content of
Client and its licensors used in or in connection with providing
the Services (collectively, "Client Technology"). This Agreement
shall not be construed in any manner as transferring to
SpeedyClick any rights of ownership of Client Property and Client
Technology, except as specifically stated herein, and SpeedyClick
shall make no claim contrary to the foregoing.
4.3 Trademarks and Brand. Client hereby grants to
SpeedyClick a non-exclusive, worldwide license to use the trade
names, trademarks, logos, service marks and product designations
of Client and its licensors (collectively, the "Client Marks")
solely in connections with SpeedyClick's performance under this
Agreement. SpeedyClick's use of Client Marks shall be in
accordance with Client's policies regarding trademark usage as
established from time to time by Client at its discretion and
communicated to SpeedyClick. SpeedyClick understands and agrees
that its use of Client Marks in connection with this Agreement
shall not create any right, title or interest in or to such
trademarks and that all such use and goodwill associated with
such trademarks will inure to the benefit of Client and its
licensors. SpeedyClick shall not make use of Client Marks or
Client Technology except as specifically provided for in this
Agreement or as authorized in writing by Client prior to such
use, and all such authorized use shall inure to the benefit of
Client and its licensors.
4.4 Visitor Data. Subject to any restrictions imposed by
Visitors or applicable law, SpeedyClick and Client shall co-own
the each Visitor's registration information ("Visitor Data").
Such Visitor Data will be used by SpeedyClick and Client in a
manner consistent with the privacy statements of the parties
disclosed to the users in connection with the collection of the
Visitor Data. Neither party shall hold the other liable for any
damages or losses resulting from its own use of the Visitor Data.
5. Nonsolicitation of Personnel. No party will, during the
term of this Agreement and for six (6) months after its
termination or expiration, without the prior written consent of
the other party, for its own account or jointly with another,
directly or indirectly solicit or hire, or in any manner attempt
to solicit or hire, any person employed or engaged by the other
party (including, without limitation, any employee or independent
contractor known to be engaged by the other party), to leave that
person's employment or engagement. Notwithstanding the
foregoing, this Section shall not preclude either party from
hiring any person employed by the other party where such person
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independently responds to an employment opportunity broadcast by
the party to the general public and who has not otherwise been in
direct contact with the party as a key person during the course
of performance of this Agreement.
6. Warranties.
6.1 By Client. Client warrants that: (i) the Client Marks
are provided to SpeedyClick under this Agreement do not and will
not infringe any proprietary right of any third party; (ii)
Client has the right and authority to enter into this Agreement,
to grant SpeedyClick and Network Commerce all rights granted
therein, and to issue the Service Shares to Network Commerce as
provided herein; (iii) Client is permitted by applicable law and
regulations to enter into this Agreement and (iv) the Service
Shares, when issued and delivered in accordance with the terms of
this Agreement, will be duly and validly issued, fully paid and
nonassessable and will be issued in compliance with all
applicable federal and state securities laws with no personal
liability attaching to the ownership thereof; (v) when the
Service Shares are issued and delivered in accordance with the
terms of this Agreement, network Commerce shall have good and
marketable title to the Service Shares free and clear of any
liens, charges, claims, pledges, encumbrances or restrictions of
any kind (other than restrictions on transfer under this
Agreement and the Restricted Stock Agreement and under applicable
U.S. federal and state securities laws); and (vi) based on the
representations and warranties of Network Commerce herein, the
offer, sale and issuance of the Service Shares will not result in
a violation of the requirements of Section 5 of the Securities
Act, or the qualification or registration requirements of
applicable blue sky laws as such laws exist on the date hereof
and neither the Company nor any authorized agent acting on its
behalf will take any action hereafter that would cause the loss
of such exemption from qualification or registration. Except as
otherwise provided in this Agreement, Client makes no other
warranties.
6.2 By SpeedyClick. SpeedyClick warrants that (i)
SpeedyClick has the right and authority to enter into this
Agreement and grant Client and rights granted herein; and (ii)
SpeedyClick is permitted by applicable law and regulations to
enter into this Agreement. Except as otherwise provided in this
Agreement, SpeedyClick makes no other warranties.
6.3 By Network Commerce. Network Commerce warrants that
(i) Network Commerce ahs the right and authority to enter into
this Agreement and grant Client and rights granted herein; (ii)
Network Commerce is permitted by applicable law and regulations
to enter into this Agreement; (iii) Network Commerce is an
"accredited investor" as defined in Regulation D of the
Securities Act; (iv) the Service Shares are being acquired by
Network Commerce for investment for its account, not as a nominee
or agent, and not with a view to the distribution of any part
thereof; (v) Network Commerce has no present intention of
selling, granting and participation in or otherwise distributing
any of the Service Shares in a manner contrary to the Securities
Act or to any applicable state securities or Blue Sky Law; and
(vi) Network Commerce does not have any contract, undertaking,
agreement or arrangement with any person or entity to sell,
transfer or grant participation to such person or entity with
respect to any of the Service Shares. Except as otherwise
provided in this Agreement, Network Commence makes no other
warranties.
6.4 Limitation of Warranty. EXCEPT AS EXPRESSLY STATED
HEREIN, THE PARTIES MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR IMPLIED
WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING,
OR USAGE OF TRADE.
7. Limitation of Liability. EXCEPT FOR ANY VIOLATION OF THE
CONFIDENTIALITY PROVISIONS HEREOF OR ANY BREACH BY CLIENT OF THE
REPRESENTATIONS MADE IN SECTIONS 6.1 (iv), (v) OR (vi), IN NO
EVENT SHALL ANY PARTY BE LIABLE TO OTHER OTHERS FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, OR EXEMPLARY OR CONSEQUENTIAL DAMAGES,
ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST
PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR
COVER, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. Notwithstanding any other provision of this
Agreement or any other
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agreement among the parties hereto, except
for any violation of the Confidentiality Provisions herein or any
breach by Client of the representations made in Section 6.1 (iv),
(v), or (vi), each party's maximum liability for damages under or
in connections with this Agreement shall be limited to the
payments made by Client under this Agreement.
8. Indemnification. Each party shall indemnify, hold harmless
and defend (with legal counsel reasonably satisfactory to the
indemnified party) the others from and against any and all
claims, demands, actions, suits brought by unaffiliated third
parties and related losses, liabilities, damages, injuries,
fines, penalties, costs and expenses including, without
limitation, reasonable attorneys' fees arising out of a breach of
its warranties, representations and/or covenants under this
Agreement provided however, that the party claiming right of
indemnification promptly notifies the other party ("Indemnifying
Party") in writing of the claim, allows the Indemnifying Party to
control the defense and all related settlement negotiations and
cooperates in such defense and settlement.
9. Assignment and Transfer. No party shall assign this
Agreement or any rights hereunder with the prior written consent
of the other parties, which shall not be unreasonably withheld.
10. Term and Termination.
10.1 Term. The Initial Term of this Agreement shall be ten
(10) months ("Initial Term"), and shall be renewable for
successive ten (10) month terms (each, a "Renewal Term") upon
thirty days written notice from Client to SpeedyClick.
10.2 Termination for Cause. This Agreement may be
terminated by a party for cause immediately by written notice
upon the occurrence of any of the following events: (i) if the
other ceases to do business for a period of not less than thirty
(30) days or otherwise terminates its business operations, (ii)
if the other shall fail to promptly secure or renew any license
registration, permit, authorization or approval for the conduct
of its business in the manner contemplated by this Agreement or
if any such license, registration, permit, authorization or
approval is revoked or suspended and not reinstated within thirty
(30) days; (iii) if the other breaches any material provision of
this Agreement and fails to fully cure such breach within thirty
(30) days of written notice describing the breach; or (iv) of the
other becomes insolvent or seeks protection under any bankruptcy
receivership trust deed, creditor's arrangement composition or
comparable proceeding, or if any such proceeding is instituted
against the other and not dismissed within thirty (30) days.
10.3 Effect of Termination. Upon termination of this
Agreement by the parties for any reason and subject to the
provisions herein, Client shall remit all payments accrued but
unpaid as of the effective date of termination to SpeedyClick
within thirty (30) days of such termination. Termination by
either party will not affect rights that have already accrued
hereunder prior to the effective date of termination. In
addition, the provisions of Sections 3, 4, 5, 6, 7, 9.3, 10,
and 11.3 will survive if this Agreement is terminated for any
reason whatsoever.
11. Confidentiality. Each party agrees that during the
existence of this Agreement by the parties for two (2) years
thereafter it will hold in strictest confidence, and will not use
or disclose to any third party, any Confidential Information of
the other party. The term "Confidential Information" shall mean
all non-public information, whether business or technical in
nature, that the other party designate as being confidential, or
which under the circumstances of disclosure ought to be treated
as confidential. If any party has any questions as to what
compromises Confidential Information of the other parties, it
agrees to consult with such other party. "Confidential
Information" shall not include information that was known to the
receiving party prior to disclosure, information that is
independently developed by employees of the receiving party who
had no access to the other party's Confidential Information, or
information that becomes publicly available through no fault of
the receiving party. The restrictions on disclosure imposed by
this Section 10 shall not apply to information that is required
by law or order of a court, administrative agency or other
governmental body to be disclosed by the receiving party. If all
parties agree, they shall issue a joint press release or
announcement regarding this Agreement. Otherwise, no party will
make any public statement about this Agreement or the parties'
relationship without each other party's prior written consent.
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12. General Provisions.
12.1 Force Majeure. Failure of any party to perform, if
occasioned in whole or in part by any act of God, act of
governmental authority, or any other occurrence, act or thing
beyond the reasonable control of that party, shall excuse that
party from its obligation to perform when due and shall suspend
its performance can reasonably be undertaken. The applicable
party shall have no liability arising out of or in connection
with such failure.
12.2 Relationship of Parties. This Agreement is one among
independent contractors, and shall not create the relationship of
employer and employee, a partnership, joint venture, or any
agency relationship among the parties.
12.3 Governing Law. This Agreement shall be governed by
the laws of the State of California without regard to its
conflicts of laws rules, and shall not be governed by the United
Nations Convention on Contracts for the International Sale of
Goods, the application of which is hereby excluded. Any party
may seek injunctive or other equitable relief from any court of
competent jurisdiction for any breach or threatened breach by any
other party of the provisions of Sections 3, 4, and 10.
12.4 Entire Agreement. This Agreement is intended to be
the parties' complete, integrated expression of the terms of
their agreement with respect to its subject matters, and any
prior agreements or understandings with respect to such subject
matters are superseded hereby and fully merged herein.
12.5 Notices. All notices and demands hereunder shall be
in writing and shall be served by personal service or by mail at
the address of the receiving party set forth below (or at such
different address as may be designated by such party by written
notice to the other party). All notices and demands by mail
shall be certified or registered mail, return receipt requested,
or by nationally recognized private express courier, and shall be
deemed complete upon receipt.
12.6 Waiver. No waiver of any term or provision of this
Agreement or right hereunder shall be valid unless the waiver is
in writing and signed by the waiving party. No waiver of failure
to enforce any provision or right hereunder shall be deemed to be
a waiver of the same or any other provision or right in any other
instance.
12.7 Severability. If any provision of this Agreement
shall be found to be unenforceable, the remainder of this
Agreement shall not be affected.
12.8 Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed and
delivered shall be deemed an original, and such counterparts
together shall constitute one and the same instrument. For
purposes hereof, a facsimile copy of this Agreement shall be
deemed to be an original.
12.9 Attorney's Fees. In the event any party shall
commence an action to enforce its rights and obligations under
this Agreement, or to obtain declaratory judgment or other
equitable relief, the prevailing party in such action shall be
entitled to receive its reasonable attorneys' fees from the
losing party, as determined by the court.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date set forth above.
SpeedyClick, Inc. Client
By: /s/ Farid Tabibzadeh By: /s/ George Tannous
------------------------------- -------------------------------
Print Name: Farid Tabibzadeh Print Name: George Tannous
----------------------- ------------------------
Title: Executive VP Title: CEO
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Addresses for Notice:
---------------------
For notices to SpeedyClick and Network Commerce: For notices to
Client:
SpeedyClick, Inc. BidBay.com, Inc.
411 First Ave. South, Suite 2004 7209 Foothill Blvd.
Seattle, Washington 98104 Tujunga, California
Attn: General Counsel Attn: George Tannous
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EXHIBIT A
DESCRIPTION OF SERVICES
-----------------------
1. Services.
SpeedyClick shall provide Client with opt-out registration
opportunity(ies) on the SpeedyClick Network (the "Services") over
the term of the Agreement, which would deliver 2,000,000
registrations to Client at $1.00 per registration, according to
SpeedyClick's internal tracking system. SpeedyClick shall
provide Client with a new registration for each duplicate
registration within thirty (30) days of its receipt of written
notice form Client providing evidence of such duplication.
2. Payment.
SpeedyClick and Network Commerce shall receive the following
compensation from Client each month over the term of the
Agreement:
* $100,000 in cash, and
* $100,000 in equity, through the issuance of 20,000 shares of
Client Preferred Stock, based on a $55.0 million post money
valuation throughout the term of the Agreement.
3. Investment.
Network Commerce shall make a $300,000 equity investment in
Client within seven (7) business days of the Effective Date of
this Agreement, which would represent a 0.55% interest in Client
on a post-money basis. This investment is contingent upon
Client's receipt of at least $3.0 million from other accredited
investors, either prior to or concurrently with Network Commerce,
at the $55.0 million post-money valuation. Network Comme4rce
shall not serve as lead investor for this round of financing, and
shall nut negotiate financing terms on behalf of other investors.
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First Addendum
SpeedyClick.com Services Agreement
Whereas, Network Commerce, Inc., SpeedyClick
Corp., and BidBay.com, Inc. wish to renew the
SpeedyClick.com Services Agreement ("Service
Agreement") entered into as of June 27, 2000 as
outlined below effective September 1, 2000:
1. Renewal The parties agree that the Services
Agreement shall be renewed for an additional
five (5) month term ("Renewal Term") and
thereafter shall be renewable for successive
five (5) month terms upon thirty (30) days
written notice from BidBay.com, Inc.
("Client") to SpeedyClick upon terms to be
mutually agreed upon.
2. Services. During the Renewal Period,
SpeedyClick will provide Client with opt-out
registration opportunity(ies) on the
SpeedyClick Network (the "Services"), which
would deliver approximately 4,000,000
registrations to Client at $1.00 per
registration, according to SpeedyClick's
internal tracking system. At the conclusion
of the Renewal Period, SpeedyClick will
provide Client with approximately 4,000,000
additional registrations at no charge.
3. Payment. Client shall pay SpeedyClick and
Network Commerce upon execution of this First
Addendum, with compensation from Client in
the form of 800,000 shares of Client Common
Stock to Network Commerce (based on a $55.0
million post-money valuation).
4. All other terms of the Services Agreement
shall remain in full force and effect during
the Renewal Period and any subsequent renewal
periods.
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IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date set forth above.
Network Commerce, Inc. Client
By: /s/ Farid Tabibzadeh By: /s/ George Tannous
------------------------------- -------------------------------
Print Name: Farid Tabibzadeh Print Name: George Tannous
----------------------- ------------------------
Title: E.V.P. Title: C.E.O.
--------------------------- ----------------------------
SpeedyClick, Corp.
By: /s/ Farid Tabibzadeh
-------------------------------
Print Name: Farid Tabibzadeh
-----------------------
Title: E.V.P.
---------------------------
First Addendum To
SpeedyClick.Com Services Agreement
Page 2 of 2
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First Addendum
SpeedyClick.com Services Agreement
/s/ GT
/s/ FT
This day
Whereas, Network Commerce, Inc., SpeedyClick
Corp., and BidBay.com, Inc. wish to renew the
SpeedyClick.com Services Agreement ("Service
Agreement") entered into November 8, 2000:
1. Renewal The parties agree that the Services
Agreement shall be renewed for an additional
five (5) month term ("Renewal Term") and
thereafter shall be renewable for successive
five (5) month terms upon thirty (30) days
written notice from BidBay.com, Inc.
("Client") to SpeedyClick.
2. Services. During the Renewal Period,
SpeedyClick will provide Client with opt-out
registration opportunity(ies) on the
SpeedyClick Network (the "Services"), which
would deliver approximately 5,000,000
registrations to Client at $1.00 per
registration, according to SpeedyClick's
internal tracking system.
3. Payment. Client shall pay SpeedyClick and
Network Commerce upon execution of this First
Addendum, with compensation from Client in
the form of 1,000,000 shares of Client Common
Stock to Network Commerce (based on a $55.0
million post-money valuation).
4. All other terms of the Agreement shall remain
in full force and effect during the Renewal
Period and any subsequent renewal periods.
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IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date set forth above.
Network Commerce, Inc. Client
By: /s/ Farid Tabibzadeh By: /s/ George Tannous
------------------------------- -------------------------------
Print Name: Farid Tabibzadeh Print Name: George Tannous
----------------------- ------------------------
Title: Exec Vice-President Title: CEO
--------------------------- ----------------------------
SpeedyClick, Corp.
By: /s/ Farid Tabibzadeh
-------------------------------
Print Name: Farid Tabibzadeh
-----------------------
Title: Exec Vice-President
---------------------------
First Addendum To
SpeedyClick.Com Services Agreement
Page 2 of 2
