DISTRIBUTION AND SALES AGREEMENT
This Agreement, made and entered into as of July 9, 2004, by and between
110 Media Group, Inc., a Delaware corporation ("110 Media"), with office at 00
Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 and i.Broadcast, Inc. a Washington
corporation ("i.Broadcast") with offices at 0000 Xxxx Xxxxx Xxxxxxx, XX, Xxx
Xxxxxx, Xxxxxxxxxx 00000.
W I T N E S S E T H
WHEREAS, i.Broadcast is a developer and provider of content and technology
products, which are described in Exhibit "A" attached hereto (the "Products")
and which are primarily distributed over the Internet; and
WHEREAS, 110 Media employs a sales force for marketing and selling content
and technology products to website domain owners who in turn market and sell
such products through their websites; and
WHEREAS, i.Broadcast desires to utilize the services of 110 Media to
market and sell its Products.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
i.Broadcast and 110 Media agree as follows:
1. Distributorship. i.Broadcast hereby appoints 110 Media as its distributor for
the Products and 110 Media agrees to diligently market and sell the Products
during the term of this Agreement.
2. Term. This Agreement shall become effective at the time this Agreement is
executed. The term of this Agreement shall be three (3) years. Either party may
terminate the Agreement upon thirty (30) days written notice.
3. Pricing. i.Broadcast agrees to maintain said pricing structure, as set forth
on Exhibit "B" hereto, for the first three year term of this Agreement. In the
event i.Broadcast changes or modifies its pricing structure, it will notify 110
Media in writing 15 days prior to such change, and 110 Media agrees to abide by
such change or modification.
4. Sales and Marketing. 110 Media shall be responsible for all advertising and
promotional and marketing materials required for the sale of the Products.
i.Broadcast shall assist 110 Media in the preparation of such materials and
Product training if requested to do so. It is specifically agreed and understood
that 110 Media shall be permitted to market the Products in any manner it deems
fit. 110 Media agrees to use reasonable efforts to promote and develop sales of
the Products. In the event that 110 Media fails to meet this obligation,
i.Broadcast's sole remedy shall be to terminate this Agreement and, in no event
shall 110 Media be liable for consequential damages to i.Broadcast resulting
from such breach except as provided for herein.
5. Payment for Service.
(a) i.Broadcast shall pay to 110 Media, by the twenty-fifth (25th) of the
month, 100% of the first month's gross revenues for each paid order placed
through the services of 110 Media's sales force. 110 Media shall be responsible
to compensate its sales force such funds; and
(b) i.Broadcast and 110 Media shall split, on a fifty/fifty basis, the net
revenues of all recurring business resulting from the initial orders placed by
110 Media's sales force. i.Broadcast shall pay to 110 Media, by the fifteenth of
each month, its portion of the net revenues from the prior month's sales.
(c) For the purposes of this Agreement, net revenues shall be defined as
gross revenues minus the following expenses:
(i) 10% commission to be paid to 110 Media's sales force;
(ii) costs related to sales and marketing;
(iii) publisher's royalties; and
(iv) bandwidth expenses.
6. Accounting. i.Broadcast shall keep complete and correct records and books
of account containing all information required for the computation and
verification of amounts to be paid pursuant to paragraph 5 hereof; and, at the
request of 110 Media, i.Broadcast shall permit an independent public accountant
selected and paid for by 110 Media, except one to whom i.Broadcast has some
reasonable objection, to have access, during ordinary business hours, to such
records as may be necessary:
(a) to determine in respect to any monthly payment, the correctness of any
report or payment made under this Agreement; or
(b) to obtain information as to the payments due for any such month in the
case of failure of i.Broadcast to report or pay pursuant to the terms of this
Agreement.
Such accountant shall not disclose to 110 Media any information relating
to the business of i.Broadcast except that which should properly be contained in
any report submitted under this Agreement.
7. Miscellaneous.
7.1 Expenses. The parties hereto shall pay all of their own expenses
relating to the negotiation of this Agreement, including the fees and expenses
of their respective counsel. 110 Media agrees to pay its own operating expenses,
including, but not limited to sales and advertising expenses.
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7.2 Governing Law. The interpretation and construction of this Agreement,
and all matters relating hereto, shall be governed by the laws of the State of
New York, applicable to agreements executed and to be performed solely within
such State without regard to conflicts of laws.
7.3 Jurisdiction. Any judicial proceeding brought against any of the
parties to this Agreement on any dispute arising out of this Agreement or any
matter related hereto may be brought to the courts of the State of New York or
in the United States District Court for the Southern or Eastern Districts of New
York and, by execution and delivery of this Agreement, each of the parties to
this Agreement accepts the exclusive jurisdiction of such courts, and
irrevocably agrees to be bound by any judgment rendered thereby in connection
with this Agreement. The prevailing party or parties in any such litigation
shall be entitled to receive from the losing party or parties all costs and
expenses, including reasonable counsel fees, incurred by the prevailing party or
parties.
7.4 Captions. The Article and Section captions used herein for reference
purposes only, and shall not in any way affect the meaning or interpretation of
this Agreement.
7.5 Publicity. Except as otherwise required by law, none of the parties
hereto shall issue any press release or make any other public statement, in each
case relating to, connected with or arising out of this Agreement or the matters
contained herein, without obtaining the prior approval of the other to the
contents and the manner of presentation and publication thereof.
7.6 Notices. Any notice or other communication required or permitted
hereunder shall be deemed sufficiently given when delivered in person, one
business day after delivery to a reputable overnight carrier, four business days
if delivered by registered or certified mail, postage prepaid or when sent by
telecopy with a copy following by hand or overnight carrier or mailed, certified
or registered mail, postage prepaid, addressed to the parties address set forth
in the beginning of this Agreement.
7.7 Counterparts. This Agreement may be executed in two or more
counterparts, all of which taken together shall constitute one instrument.
7.8 Entire Agreement. This Agreement, including the Appendix attached
hereto and the other documents referred to herein which form a part hereof,
contain the entire understanding of the parties hereto with respect to the
subject matter contained herein and therein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
7.9 Amendments. This Agreement may not be changed orally, but only by an
agreement in writing signed by 110 Media and i.Broadcast.
7.10 Severability. In case any provision in this Agreement shall be held
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof will not in any way be affected or impaired
thereby.
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7.11 Relationship of Parties and Authority. 110 Media expressly
acknowledges that it is an independent contractor and nothing in this Agreement
is intended to create a franchise, employment or partnership relationship
between the parties. Neither of the parties nor their agents and employees shall
under any circumstances be considered to be agents or representatives of the
other party and neither party shall have the right and shall not attempt to
enter into contracts or commitments in the name or on behalf of the other party,
or to bind the other party in any respect whatsoever except as contained in this
Agreement.
7.12 Force Majeure. Neither party shall be considered in default or liable
under this Agreement because of delays caused by war; civil riot; strikes or
other labor disputes; fire; flood, storm or other casualty; failure of
telecommunications, postal service, or common carrier; customs, export or other
governmental restriction; inability to obtain material; or other circumstances
beyond its reasonable control. If such an event prevents a party from fulfilling
an obligation under this Agreement, it shall promptly notify the other party.
Following notification, the relevant obligation shall remain pending until a
reasonable time after the event ceases, except as otherwise expressly set forth
herein.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives in each party's stated capacity as of
the day and year first above written.
110 MEDIA GROUP, INC. I.BROADCAST, INC.
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxxxx Xxxxxxxx
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Its: CEO Its: Sec - Treas
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