MARKETING AGREEMENT BY AND BETWEEN BUONGIORNO USA, INC. AND
BY
AND
BETWEEN
BUONGIORNO
USA, INC.
AND
1
of
21
This
Marketing Agreement ("Agreement")
is
hereby
made and entered into on this 10th day of
January, 2006 by and between Buongiorno
USA,
Inc.,
a
Florida
corporation whose principal office is
located at 000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxx 00000 ("B!USA"),
and New
Motion Inc, a Delaware Corporation whose principal office is located at
________________________ ("Marketer")
(each a "Party" and together the "Parties").
INTRODUCTION
|
A.
|
B!USA
has agreed to offer its technical platform, application and related
operational and technical
services to Marketer to enable end-users exposed to Marketer's
distribution channels
(collectively, "End-Users") to purchase Value Added Services (as
defined
below), pursuant
to the terms and conditions of this
Agreement.
|
|
B.
|
Marketer
has agreed to advertise, market and promote B!USA's Value Added Services
via Marketer's
distribution channels, pursuant to the terms and conditions of this
Agreement.
|
NOW
THEREFORE, in
consideration of the mutual promises and covenants set forth in this
Agreement
and other valuable consideration, the receipt and sufficiency of which are
hereby acknowledged,
B !USA and Marketer hereby agree as follows:
1. DEFINITIONS
| 1.1 |
For
purposes of this Agreement:
|
| Business Days |
means
each day of the week Monday through Friday, excluding
any public holiday in the US.
|
Content
means any content which can be delivered to and accessed by a
mobile
device, including but not limited to any form of ringtone,
wallpaper, game, or information text.
| Territory |
means
North America
|
B!
USA
Value Added Servicemeans
any
value added service which enables an End-User to (i) receive Content for
a
mobile device; (ii) personalize a mobile device with Content on a mobile
device.
B!USA Value Added Services are sold by B!USA to End-Users as one-off purchases
and subscription services pursuant to web-based agreements directly with
End-Users.
New
Motion Value Added Service means any value added service which enables an
End-User
to (i) receive Content for a mobile device; (ii) personalize
a mobile device with Content on a mobile device. New
Motion Value Added Services are sold by New Motion to
End-Users as one-off purchases and subscription services pursuant to web-based
agreements directly with End-Users.
| 2. |
TERM
|
| 2.1 | This Agreement shall commence on January 10th, 2006 (the "Effective Date") and will continue for a period of one (1) year (the "Initial Term"). |
2
of
21
| 2.2 |
The
Agreement will automatically renew for successive one (1) year periods
following the end
of the Initial Term, unless and until the Agreement is terminated
in
accordance with Article
13 or upon 90 days written notice. The Initial term and any additional
terms will be collectively referred to as the "Term".
|
| 2.3 |
The
Agreement - upon signature of both parties - and, specifically, this
Clause 2.3 act as a formal
termination of all prior agreements between the B!USA and New Motion
Inc.
All clauses
in this Agreement will supersede the terms of past contracts between
the
parties with the
exception of any clause, term, or condition that survives prior
contractual agreements between
the parties including but not limited to Revenue Shares prior to
the Term,
Confidentiality,
and Warranties.
|
| 3. |
MARKETER
REPRESENTATIONS AND WARRANTIES. Marketer
hereby represents and
warrants to B!USA that:
|
| 3.1 |
Marketer
shall advertise, market and promote B! Value Added Services to End-Users
in accordance
with the terms of this Agreement and pursuant to the means set forth
on
the attached
Appendix
A. In
advertising, marketing and promoting Value Added Services to
End-Users,
Marketer shall exercise the requisite skill and care of a prudent
marketing firm, and Marketer
shall comply with all applicable laws, rules and regulations, including,
but not limited
to the federal laws commonly known as the CAN-SPAM Act and COPPA
and any
and
all similar state laws, rules and regulations, as well as any laws,
rules
or regulations of the Federal
Communications Commission or Federal Trade Commission. Marketer shall
strictly adhere
to marketing and customer management practices supported by the Mobile
Marketing Association
(MMA) on the Effective Date and any subsequent updates to industry
guidelines made
by the MMA during the Term.
|
| 3.2 |
No
advertisement or promotion of B!USA's Value Added Services or any
Content
will be used
in a dramatic fashion, as such term is understood in the industry,
or in
any manner which could
be considered in bad taste or offensive; i.e., each advertisement
and/or
promotion will be
used with regard to social convention and decency so as not to bring
B!USA's Value Added
Services, any Content and/or the underlying compositions, composers,
Content rights owners
or Content publishers into public disrepute or reflect adversely
on
B!USA's Value Added
Services, any Content and/or the underlying compositions, composers,
Content rights owners
or Content publishers. No single underlying composition of Content
will be
used in connection
with any branding, marketing, advertising or promotion of any B!USA
Value
Added
Service or any Content, unless Marketer has obtained its own license
to do
so directly from
the owner and/or publisher for the particular underlying
composition.
|
| 3.3 |
Marketer
shall separately obtain or secure (and maintain during the Term)
any and
all intellectual
property licenses which are required for Marketer to advertise, market
and/ or promote any Content, including without limitation, name and
likeness rights, and that said materials shall not violate or infringe
upon the rights of any third-party, including without limitation
intellectual property rights and/or rights of privacy and
publicity.
|
| 3.4 |
Marketer
is fully empowered to enter into this Agreement and to perform its
duties
and obligations
hereunder, that it is and shall at all times remain possessed of
all
rights necessary. for
it to completely fulfill all of its material obligations hereunder,
and
that its entering into this
Agreement and fulfilling such obligations does not and shall not
infringe
upon the rights of
any third-party whatsoever.
|
3
of
21
| 3.5 |
All
services provided by Marketer pursuant to this Agreement will conform
in
all respects with
the Agreement and all applicable laws, rules and regulations that
may be
in force from time
to time during the term of this
Agreement.
|
| 3.6 |
Marketer
has the unencumbered right and power to enter into this Agreement
and that
this Agreement
is a binding obligation on
Marketer.
|
|
4.
|
|
B!USA
REPRESENTATIONS AND WARRANTIES. B!USA
hereby represents and warrants
to Marketer that:
|
| 4.1 |
B!USA
shall provide B!USA Value Added Services to End-Users in accordance
with
the terms
of this Agreement and in a manner consistent with industry
standards.
|
| 4.2 |
B!USA
shall provide the physical connections between its technical platform
and
third-party mobile
networks, as well as its premium short-code 65000, in order to deliver
the
operational and
technical services necessary to deliver End-Users with B!USA's Value
Added
Services.
|
| 4.3 |
B!USA
shall provide the physical connections between its technical platform
and
third-party mobile
networks, to additional New motion Shortcodes including but not limited
to
the shortcode
31000, in order to deliver the operational and technical services
necessary to deliver End-Users with New Motion's Value Added
Services.
|
| 4.4 |
B!USA
shall provide its technology platform, physically residing in Italy
with
all services managed
from the U.S., and the necessary applications and content to provide
the
B!USA Value
Added Services. The cost of all hardware and software, communication
lines
and connectivity
and support for the same shall be borne by
B!USA.
|
| 4.5 |
B!USA
shall provide Marketer with Tier Technical Support and 2nd
Tier
Technical Support as
set forth in Appendix
B.
|
| 4.6 |
All
services provided by B!USA pursuant to this Agreement will conform
in all
respects with the
Agreement and all applicable laws, rules and regulations that may
be in
force from time to time
during the term of this Agreement.
|
| 4.7 |
B!USA
has the unencumbered right and power to enter into this Agreement
and that
this Agreement
is a binding obligation on B!USA.
|
| 5. |
PUBLICITY
|
| 5.1 |
Neither
Party shall make any announcement or release relating to this Agreement
or
the terms or conditions of this Agreement, nor, without the prior
written
consent of the other Party, directly
or indirectly make any announcement or release relating to the other
Party
or the existence
of this Agreement, including in any market analysis, journal, newspaper,
magazine, periodical, television, radio or any other branch of the
news
media.
|
| 5.2 |
The
terms and conditions of this Article 5 will survive the termination
of the
Agreement.
|
| 6. |
PAYMENTS
AND REVENUE SHARE
|
4
of
21
| 6.1 |
During
the Term, both Parties agree to share the Net Revenue (as defined
below)
collected by B!USA for the sale of Value Added Services to End-Users
pursuant to the percentages set forth
on the attached Schedule
6.1.
|
| 6.2 |
For
purposes of this Agreement, Net
Revenue shall
mean the out-payment from aggregators after deducting delivery costs
(cost
of MT SMS) and third-party Content costs, fees and royalties
(collectively, "Costs").
The
cost of any Content produced directly by B!USA shall not
be included in the calculation of Net Revenue. In the event that
B! USA
receives any direct
carrier billing relationships and does not use an aggregator it is
agreed
that B! USA shall
pass the revenue collected from carrier directly to Marketer less
an 8%
fee.
|
| 6.3 |
B!USA
shall provide Marketer with an outline of all third-party Content
costs,
fees and royalties
prior to any B!USA Value Added Service being made accessible via
the
Dedicated Web
Environment. In addition, a breakdown of gross revenues and Costs
will be
provided on a
monthly basis.
|
| 6.4 |
Any
new B!USA Value Added Service not covered in this agreement including
but
not limited
to Chat Services and Text trivia services will be negotiated outside
of
this agreement.
|
| 6.5 |
Marketer
will pay B!USA all Costs for any free Value Added Services and Content
provided to
End-Users ("Free
Services"), unless
B!USA specifically agrees in writing and on a case-by-case
basis to share such Costs.
|
| 6.6 |
At
the end of each month, B!USA will invoice Marketer for any Free Services
delivered during
the previous month, if applicable, and Marketer shall pay B!USA pursuant
to such invoice
within thirty (30) days after each such invoice is
issued.
|
| 6.7 |
Within
one (1) business days following B!USA's receipt of the applicable
out-payment from each
third-party aggregator that processes the payments for Value Added
Services, B!USA shall
pay Marketer's applicable percentage of Net Revenue to
Marketer.
|
| 6.8 |
For
the 65000 shortcode B !USA will pass on the same advanced payment
terms
offered to Buongiorno
by mQube as set out in Appendix B. These terms are subject to B!
USA
approval by
mQube. Any change by mQube to their Advance Payment Terms will take
immediate effect
and will be communicated to New Motion within 2 business
days.
|
| 6.7 |
The
payment terms and conditions of this Article 6 will survive the
termination of the Agreement
with respect to services provided during the
Term.
|
| 7. |
CONFIDENTIALITY
|
| 7.1 |
With
respect to this Agreement, "Confidential
Information" shall
mean any and all information
provided by either Party ("Disclosing
Party") to
the other Party ("Receiving
Party")
including,
but not be limited to the following written, visual or oral information
of
the Disclosing Party: financial information, business information
and
plans, product and services information,
pricing information, marketing information, customer information,
vendor
information,
intellectual property, software, source codes, object codes, technical
knowledge, trade
secrets, and/or other information concerning the Disclosing Party's
business.
|
| 7.2 |
Confidential
Information shall not include information which (i) is now or subsequently
becomes
generally available to the public through no fault or breach on the
part
of Receiving Party;
(ii) Receiving Party can demonstrate as having in its lawful possession
prior to disclosure
by Disclosing Party; (iii) is independently developed by Receiving
Party
without the use of any of disclosing Party's Confidential Information;
or
(iv) Receiving Party lawfully obtains
from a third-party that has the unrestricted right to disclose such
information to the general
public.
|
5
of
21
| 7.3 |
Other
than as is specifically provided for in this Agreement, Receiving
Party
shall not, and shall
cause Receiving Party's subsidiaries, affiliates, shareholders,
members,
partners, officers,
directors, employees, contractors, consultants, representatives
and agents
(collectively,
"Representatives")
not
to, disclose any Confidential Information to any third-party.
Receiving Party agrees that Receiving Party shall be responsible
for any
breach of this Agreement
by its Representatives. Receiving Party shall disclose the Confidential
Information to
a Representative if and only if the Representative needs to know
the
Confidential Information
in the ordinary course of that Representative's work for Receiving
Party
as contemplated
by this Agreement. Receiving Party represents that the Representatives
receiving
the Confidential Information are bound by similar restrictions
of
confidentiality not to
disclose the Confidential Information as Receiving Party is bound
by this
Agreement. Receiving
Party agrees not to copy, reproduce or reduce to writing any
part of the
Confidential
Information except as is necessary for Receiving Party to perform
the work
contemplated by this Agreement; and all such copies, reproductions
and/or
reductions to writing
will be the property of Disclosing`Party. Receiving Party agrees
not to
use, directly or indirectly, any of the Confidential Information
for its
benefit or the benefit of any third-party. Receiving Party may
disclose
the Confidential Information pursuant to a court order; provided
however,
Receiving Party provides Disclosing Party with sufficient notice
for
Disclosing Party to challenge the request for disclosure of such
Confidential Information. Receiving Party
shall promptly notify Disclosing Party of any unauthorized use
or
disclosure of Confidential
Information, and Receiving Party shall promptly take any and
all
reasonable efforts
to prevent further unauthorized use or disclosure of the Confidential
Information.
|
| 7.4 |
All
Confidential Information, copies and derivatives thereof shall
be and
remain the exclusive property
of Disclosing Party and no license or other rights to the same
is granted
or implied by
this Agreement. Receiving Party expressly agrees not to seek
or obtain any
intellectual property
or other property rights with respect to Disclosing Party's Confidential
Information.
|
| 7.5 |
Upon
the written request of the Disclosing Party, Receiving Party
shall either
(i) immediately return
to Disclosing Party any and all Confidential Information disclosed
to
and/or in its possession,
including, but not limited to any and all originals, copies,
reproductions
and reductions
of Confidential Information and documents containing and/or incorporating
the Confidential Information, or (ii) certify to Disclosing Party
the
destruction of all of the
same.
|
| 7.6 |
Neither
Party is obligated to disclose any Confidential Information pursuant
to
this Agreement.
Except as specifically provided for elsewhere in this Agreement,
Neither
Party makes
any representations or warranties with respect to any Confidential
Information disclosed
pursuant to this
Agreement.
|
| 7.7 |
The
Confidential Information provisions of this Agreement shall survive
the
termination of this
Agreement for as long as provided for by applicable law, but
in no event
for a term of less then
five (5) years following the termination of this Agreement, except
with
respect to trade secrets,
which shall remain confidential and subject to the Confidential
Information provisions
of this Agreement so long as such trade secrets remain trade
secrets.
|
| 7.8 |
The
Parties acknowledge and agree that the Confidential Information
provisions
of this Agreement
are independent of any other agreement between the Parties and
of any
other provision
of this Agreement. The existence of any claim or cause of action
that
either Party may
have against the other, whether predicated upon this Agreement
or
otherwise, will not constitute a defense to the enforcement of
the
Confidential Information provisions of this Agreement.
|
6
of
21
| 8. |
INTELLECTUAL
PROPERTY
|
| 8.1 |
Nothing
in this Agreement shall affect the ownership and/or licensing rights
of
either party's intellectual
property rights. Marketer acknowledges that B!USA is the sole and
exclusive owner
or licensee of all of the copyrights, patents, trademarks, trade
names,
markings, legends,
logos, symbols, databases, designs, know-how and other intellectual
property rights, whether
or not registered, associated with B!USA, B!USA Value Added Services
and
the Content
provided pursuant to the Dedicated Web Environment (collectively,
the
"Intellectual
Property").
During
the Term, B!USA grants to Marketer the non-exclusive, non-transferable
and
royalty-free right, pursuant to the terms and conditions of this
Agreement, to use the Intellectual
Property for advertising, marketing and promoting the B!USA Value
Added
Services
to End-Users within the Territory. At B!USA's request, use of the
Intellectual Property
by Marketer may be subject to pre-publication or pre-use review and
approval by B!USA.
If B!USA, in B!USA's sole and absolute discretion, deems any use
of the
Intellectual Property
by Marketer is detrimental to B!USA, B!USA's Value Added Services,
Content
and/or the underlying compositions, composers, or publisher of the
Content
or is deemed undesirable,
B!USA may withdraw approval for any specific use or permission to
use the
Intellectual
Property without liability as result thereof. Except as specifically
authorized by this
Section 8, no rights to the Intellectual Property are transferred
under
this Agreement and Marketer
shall not, without B!USA's prior written consent, use, directly or
indirectly, any Intellectual
Property which is now or hereafter owned or licensed by B!USA. Marketer
shall do
nothing to impinge or interfere with B!USA's ownership or license
of the
Intellectual Property
or to diminish the commercial value of B!USA's Value Added Services,
Content and/or
the underlying compositions of the Content or Intellectual Property.
Except as expressly
authorized in this Section 8, Marketer shall not use any trade names,
trademarks, logos
or symbols confusingly similar in any manner whatsoever with the
Intellectual Property, including,
but not limited to, as any part of Marketer's corporate name or trade
names or in any Internet domain name without first receiving the
prior
written approval of the B!USA, which
approval may be withheld by B!USA in its sole and absolute discretion.
Marketer shall not
register or attempt to register any Intellectual Property in any
country
in the world. In the event Marketer should acquire any rights to
the
Intellectual Property anywhere in the world, such rights shall be
promptly
assigned to B!USA without requiring any payment by B!USA. In
any event, upon any termination of this Agreement, this limited permission
to use the Intellectual
Property shall be immediately terminated, Marketer shall immediately
cease
to use
the Intellectual Property, and shall execute any and all documents
necessary to evidence the
termination of its use of the Intellectual Property, and to transfer
any
rights therein to B!USA
without requiring any payment by B!USA. Except for the registration
of
Intellectual Property, Marketer shall take reasonable measures to
protect
the Intellectual Property from infringement by third-parties. Marketer
shall immediately communicate to B!USA any known abuse or misuse
of the
Intellectual Property.
|
| 8.2 |
The
terms and conditions of this Article 8 will survive the termination
of the
Agreement.
|
| 9. |
DISCLAIMER
OF WARRANTIES AND LIMITATION OF
LIABILITY
|
| 9.1 |
EXCEPT
AS SPECIFICALLY SET FORTH IN THIS AGREEMENT AND TO THE MAXIMUM
EXTENT PERMITTED BY LAW, B!USA HEREBY DISCLAIMS ANY AND ALL
WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO
ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT.
|
7
of
21
| 9.2 |
B!USA
assumes no risk and shall be subject to no liability for damages
or loss
resulting from the
specific use or application made of B!USA's Value Added Services
or New
Motion's Value
Added Services.
|
| 9.3 |
NOTWITHSTANDING
ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY,
THE LIABILITY OF B!USA, IF ANY, AND MARKETER'S AND ANY THIRD-PARTY'S
SOLE AND EXCLUSIVE REMEDY FOR DAMAGES BASED ON ANY
CLAIM OF ANY KIND WHATSOEVER WITH RESPECT TO ANY SERVICES PROVIDED
BY B!USA PURSUANT TO THIS AGREEMENT, REGARDLESS OF THE LEGAL
THEORY OR THE DELIVERY OR NON-DELIVERY OF THE SERVICES, SHALL NOT
BE
GREATER THAN THE ACTUAL NET AMOUNT REALIZED BY B!USA
WITH RESPECT TO THE SERVICES FOR WHICH SUCH CLAIM IS MADE. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, UNDER NO CIRCUMSTANCE
WILL B!USA BE LIABLE TO MARKETER OR ANY THIRD-PARTY FOR
ANY PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES
OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, COMPENSATION,
REIMBURSEMENT OR DAMAGES ON ACCOUNT OF THE LOSS OF
PRESENT OR PROSPECTIVE PROFITS, EXPENDITURES, INVESTMENTS OR COMMITMENTS,
WHETHER MADE IN THE ESTABLISHMENT, DEVELOPMENT OR MAINTENANCE
OF BUSINESS REPUTATION OR GOOD WILL, COST OF SUBSTITUTE
SERVICES, COST OF CAPITAL, OR FOR ANY OTHER REASON WHATSOEVER.
|
| 9.4 |
The
terms and conditions of this Article 9 will survive the termination
of the
Agreement.
|
| 10. |
INDEMNIFICATION
|
| 10.1 |
B!USA
agrees to indemnify, defend and hold Marketer, and Marketer's affiliates,
subsidiaries,
directors, officers, employees and representatives, harmless from
and
against, and
will reimburse each such entity or person, as applicable and with
respect
to, any and all claims, liabilities, losses, damages, interest, charges,
recoveries, judgments, penalties, costs and
expenses, including, but not limited to reasonable attorneys' fees
and
costs, for any (i) breach
of a representation or warranty by B!USA set forth in this Agreement,
(ii)
negligence by
B!USA in providing the B!USA Value Added Services to End-User's;
(iii)
unauthorized disclosure
or misuse of End-User personally identifiable information; or (iv)
infringement of a third-party Intellectual Property
right.
|
| 10.2 |
Marketer
agrees to indemnify, defend and hold B!USA, and B!USA's affiliates,
subsidiaries, directors,
officers, employees and representatives, harmless from and against,
and
will reimburse
each such entity or person, as applicable and with respect to, any
and all
claims, liabilities,
losses, damages, interest, charges, recoveries, judgments, penalties,
costs and expenses,
including, but not limited to reasonable attorneys' fees and costs,
for
any (i) breach of
a representation or warranty by Marketer set forth in this Agreement,
(ii)
negligence by Marketer
in advertising, marketing, promoting or selling Value Added Services
and/or Content;
(iii) violation of any current or future law, rule or regulation
by
Marketer in advertising,
marketing, promoting or selling Value Added Services and/or Content,
including,
but not limited to the federal laws commonly known as the CAN-SPAM
Act and
COPPA
and any and all similar state laws, rules and regulations, as well
as any
laws, rules or regulations of the Federal Communications Commission
or
Federal Trade Commission; (iv) unauthorized
disclosure or misuse of End-User personally identifiable information;
or
(v) infringement
of a third-party Intellectual Property
right.
|
8
of
21
| 10.3 |
In
the event an indemnifiable claim ("Claim")
arises
pursuant to the terms and conditions of this
Article 10, the indemnified party ("Indemnified
Party") shall
promptly provide the indemnifying
party ("Indemnifying
Party") with
written notice of any such Claim. Indemnified
Party agrees to cooperate with Indemnifying Party and, at Indemnifying
Party's expense, provide reasonable assistance in defense of
any and all
Claims. Indemnifying Party agrees
to keep Indemnified Party fully informed on the developments
of any
settlement negotiations
and legal proceedings relating to any and all Claims and Indemnified
Party
may retain counsel, at its own expense, to participate in the
defense of
any and all Claims. Control of
the defense and settlement negotiations shall remain with Indemnifying
Party; provided, however, Indemnifying Party shall not enter
into any
compromise or settlement of a Claim that
shall have the effect of creating any liability or obligation
(whether
legal or equitable) on the
part of Indemnified Party without Indemnified Party's prior written
consent, which may be
withheld at the sole discretion of Indemnified
Party.
|
| 10.4 |
The
terms and conditions of this Article 10 will survive the termination
of
the Agreement.
|
| 11. |
TERMINATION
|
| 11.1 |
Without
prejudice to any other rights or remedies that it may have, either
Party
may terminate the Agreement:
|
|
a.
|
immediately,
if the other Party commits a material breach of the Agreement and
fails
to
remedy the breach (if capable of remedy) within fourteen (14) days
of
written notice
to do so;
|
|
b.
|
immediately,
if the other Party becomes insolvent, ceases its business operations
relating
to the subject of this Agreement, is subject to an assignment for
the
benefit of creditors,
voluntarily or involuntarily files for bankruptcy, has a receiver
or
administrative
receiver appointed, has a petition for an administration order presented
against
it or such an order is made in relation to it, or a resolution or
winding
up petition
is passed or presented (otherwise than for reconstruction or
amalgamation);
|
|
c.
|
immediately,
upon learning of any action which jeopardizes any material right
or
remedy
of the composer or publisher of any Content; and
|
|
d.
|
upon
6 months prior written notice to the other Party, at any time and
for any
reason following the end of the Initial
Term.
|
| 11.2 |
B!USA
may terminate access to specific Content on the Dedicated Web Environment
immediately
upon B!USA's receipt of notice from its Licensor relating to the
termination of the
applicable license.
|
| 11.3 |
B!
USA may terminate this agreement immediately with 14 days written
notice.
|
| 11.3 |
Termination
of this Agreement shall not affect any rights and obligations
of the
Parties as are expressly
stated in this Agreement to survive termination, which shall
remain in
full force and effect.
For the avoidance of doubt, Marketer shall not have any right
or licence
to use the B!USA
Services and/or any of the B!USA Content after expiry or termination
of
this Agreement.
|
9
of
21
| 12. |
FORCE
MAJEURE
|
| 12.1 |
Where
a Party is prevented from meeting its obligations under the Agreement
(whether in whole
or in part) by reason of Force Majeure (as defined below), such
Party will
not be in breach
of this Agreement and its obligations will be suspended during
the
continuance of such event of Force
Majeure.
|
| 12.2 |
The
Party suffering the event of Force Majeure shall give notice
of suspension
as soon as possible
to the other Party stating the date and extent of such suspension,
the
nature of the event
giving rise to the claim of Force Majeure and its estimate of
how long the
likely delay to
the Agreement will be. The parties will discuss how to minimize
the effect
of the Force Majeure
to the relationship between the
Parties.
|
| 12.3 |
If
a Force Majeure prevents performance of a Party's obligations
for a period
in excess of sixty
(60) days, the Party not affected by the Force Majeure may terminate
the
Agreement by prior,
written notice to the other
Party.
|
| 12.4 |
For
purposes of this Agreement, Force
Majeure means
an event beyond a Party's control, including
but not limited to civil disturbances, acts of God, unavoidable accidents,
laws, rules or
regulations of any national, municipal or government agency (whether
domestic or foreign),
acts of war or conditions arising out of or attributable directly
to war,
damage to any Dedicated
Web Environment, or fire or other natural catastrophe, but do not
include
any dispute
between B!USA and its employees or
sub-contractors.
|
| 13. |
ASSIGNMENT
AND SUB-CONTRACTING
|
| 13.1 |
Neither
Party may assign or sub-contract the whole or any part of their
obligations pursuant to this
Agreement without the prior written consent of the other
Party.
|
| 13.2 |
Where
consent is given by a Party for the other Party to use a sub-contractor,
such Party reserves
the right to vet those sub-subcontractors and the terms of the
legal
agreements with them
and obtain alternative quotations from its own preferred suppliers.
Where
such Party's own
preferred suppliers offer a more competitive quote, then such
Party may
require the other Party to use that Supplier as a
sub-contractor.
|
| 14. |
NON-SOLICITATION
OF STAFF
|
| 14.1 |
Both
Parties agree that they shall not, during the Term and for a
period of six
(3) months following
the termination of this Agreement, directly or indirectly, whether
for
such Party's own
account or for the account of any other third-party, contact
or solicit
any then current employee
of the other Party.
|
| 14.2 |
Both
Parties hereby agree that the terms and conditions of this Article
14 are
fair and reasonable
in terms of nature, extent and
duration.
|
| 14.3 |
The
terms and conditions of this Article 5 will survive the termination
of the
Agreement.
|
| 15. |
DATA
PROTECTION
|
| 15.1 |
Both
Parties agree to comply with any and all applicable data protection,
privacy or similar laws
("Data
Protection Laws") in
their respective regions.
|
| 15.2 |
The
terms and conditions of this Article 15 will survive the termination
of
the Agreement.
|
10
of
21
| 16. |
INJUNCTIVE
RELIEF; CUMULATIVE
REMEDIES
|
| 16.1 |
The
Parties agree that a violation or breach of the Intellectual
Property and
Confidential Information
provisions of this Agreement could cause irreparable harm to
the
non-breaching Party
for which monetary damages may be difficult to ascertain or an
inadequate
remedy. Therefore,
both Parties agree that the non-breaching Party will have the
right, in
addition to its
other rights and remedies, to seek and obtain injunctive relief
for any
violation of this Agreement
by the breaching Party, and the breaching Party expressly waives
any
objection, in any
such equitable action, that the non-breaching Party has or may
have an
adequate remedy at
law. The rights and remedies set forth in this Agreement are
cumulative
and concurrent and may
be pursued separately, successively or
together.
|
| 16.2 |
The
terms and conditions of this Article 16 will survive the termination
of
the Agreement.
|
| 17. |
GENERAL
|
| 17.1 |
The
Parties will cooperate with each other and execute and record
such
documents as may reasonably
be requested to effectuate the provisions of this Agreement and
to protect
the Intellectual
Property.
|
| 17.2 |
This
Agreement will not create a joint venture, partnership or other
formal
business relationship
or entity of any kind, or an obligation to form any such relationship
or
entity. Each Party will act as an independent entity and not
as an agent
of the other Party for any purpose,
and neither will have the authority to bind the
other.
|
| 17.3 |
Any
notices required or permitted to be given under this Agreement
must be
addressed as set forth
on the attached Appendix
C (or
to such other address as the receiving Party may designate
by notice given in accordance with this Agreement) and delivered
(i) by
hand-delivery;
or (ii) mailed by a nationally recognized overnight carrier or
by
certified mail, return receipt
requested, in a postage prepaid envelope; or (iii) sent via facsimile
with
confirmation by mail. Notices will be deemed delivered and effective
upon
the earlier of (i) receipt, or (ii) three
(3) days after mailing.
|
| 17.4 |
This
Agreement represents the complete agreement between the Parties
with
respect to the subject
matter contained in this Agreement, and this Agreement replaces
and
supersedes all prior written and oral agreements or statements
by and
among the Parties with respect to the subject
matter contained in this Agreement. All amendments and modifications
to
this Agreement
must be in writing and signed by the Parties. No term, covenant,
condition
or warranty
of this Agreement will be deemed to have been waived, nor shall
there be
any estoppel against the enforcement of any provision of this
Agreement,
except by written instrument
of the Party charged with such waiver or estoppel. This Agreement
will be
binding upon
and inure to the benefit of the Parties and their respective
successors
and assigns.
|
| 17.5 |
Except
as expressly provided in this Agreement, nothing in this Agreement
will
confer any rights
or remedies under or by reason of this Agreement on any person
or entity
other than the Parties and their respective successors and
assigns.
|
| 17.6 |
In
the event it is necessary to construe the terms and conditions
of this
Agreement, it will be done
without giving any consideration or effect as to which Party
may have
drafted this Agreement.
The Parties acknowledge that all the terms of this Agreement
were
negotiated at arm's
length and that this Agreement and all documents executed in
connection
with this Agreement
were prepared and executed without duress, undue influence or
coercion
upon any Party.
|
11
of
21
| 17.7 |
This
Agreement shall be governed by, and construed in accordance with,
the laws
of the State of
Florida (without giving effect to principles of conflicts of
laws). Except
as otherwise specifically
set forth in this Agreement, any question, dispute, or other
matter
related to or arising
from this Agreement shall be submitted to and exclusively decided
by
binding arbitration
before the American Arbitration Association ("AAA") in Miami-Dade
County,
Florida,
under the commercial arbitration rules then administered by the
AAA. Each
of the parties
hereby waives any objection to such jurisdiction or venue, including,
without limitation,
any objection based on such venue being an inconvenient forum.
Any award
or decision
obtained from any such arbitration proceeding shall be final
and binding
on the parties,
and judgment upon any award thus obtained may be entered in any
state or
federal court
in and for Miami-Dade County, Florida. Except as otherwise provided
in
this Agreement,
no action at law or in equity based upon any question, dispute,
or other
matter related
to or arising from this Agreement shall be instituted in any
court by any
party, except: (i)
an action to compel arbitration pursuant to this section; or
(ii) an
action to enforce an award
obtained in an arbitration proceeding in accordance with this
section.
|
| 17.8 |
In
any arbitration and legal proceeding arising from, under or in
connection
with this Agreement,
the prevailing party shall recover their reasonable attorneys'
fees and
costs incurred
in preparation for and in connection with all such arbitration
and legal
proceedings.
|
| 17.9 |
If
any provision of this Agreement is held invalid, illegal or unenforceable
by a court or arbitration
tribunal of competent jurisdiction, the remainder of this Agreement
will
not be affected
thereby.
|
| 17.9 |
This
Agreement may be executed in one or more counterparts, each of which
shall
be deemed an
original, but all of which shall constitute one and the same
document.
|
| 17.10 |
The
terms and conditions of this Article 17 will survive the termination
of
the Agreement.
|
| 18. |
Audit
Rights
|
New
Motion shall have the right to have an independent certified accountant audit
B
!USA's books
and
records regarding Outpayment, upon at least seven (7) days advance written
notice and
solely during normal business hours, at New Motion's sole expense. If such
independent auditor
then determines that B!USA has underpaid any amounts, B!USA shall immediately
remit
such amount of underpayment to New Motion and shall be responsible for all
costs
of the
audit.
SIGNATURES
ON THE FOLLOWING PAGE
12
of
21
CONFIDENTIAL
IN
WITNESS WHEREOF, the
Parties have duly executed this Marketing Agreement on the Effective Date first
set forth above.
|
For
and on behalf of
BUONGIORNO
USA,
INC.
|
For
and on behalf of
NEW
MOTION, INC.
|
||
| By: ________________________________ | By: /s/ Xxxxx Xxxxxx | ||
| Name:______________________________ | Name: Xxxxx Xxxxxx | ||
| Title:
______________________________ Date: ______________________________ |
Title:
CEO Date: 1-10-06 |
13
of
21
Appendix
A
PROMOTION
OF B!USA VALUE ADDED SERVICES
Marketer
shall use its best efforts to advertise, market, promote and maximize the
audience of End-Users for B!USA Value Added Services. By way of example, but
not
limitation:
1.
Marketer shall insure there is a link from Marketer's distribution channels
to
the Dedicated
Web Environment and the B!USA Value Added Services. As of the date of
the
execution of the Agreement, Marketer's distribution channels are averaging
the
following
number of End-Users on a monthly basis:
|
|
|||
| b. |
|
2.
|
Marketer
shall use its distribution channels, including but not limited to
online
banners and e-mails, to promote B!USA's Value Added Services to
End-User's, including
both Marketer's registered users and to new
users.
|
|
3.
|
Marketer
shall add a significant amount of ad-hoc promotion of the B!USA Value
Added
Services depending on Marketer's ability to monetize End-User
traffic.
|
|
4.
|
Marketer
will investigate allocating additional advertising inventory to promote
Marketer's
distribution channels, i.e., search sponsorship, expanding advertising,
website
banners, etc.
|
|
5.
|
Marketer
will explore new ways to effectively promote B!USA's Value Added
Service
and the Content.
|
14
of
21
Appendix
B
SUPPORT
LEVEL AGREEMENT
B!USA
has
an ongoing operational global Support and Maintenance program. The summary
of
our standard Support Level Agreement ("SLA") with key summary points highlighted
in this appendix is
designed to support an efficient process ensuring consistent quality for any
Service requirements that arise.
The following is a summary SLA of this program including scalability,
availability, and fault resolution.
Scalability:
It
is
important to note the following points about the platform's
scalability:
| n |
All
critical software components of the architecture have been designed
for
parallel, cooperative processing; the components that natively support
scalability and load balancing are the Web, WAP, SMS,
MMS, IVR Broker, SMTP Server, Push Scheduler, Push e-mail, Dynamic
Ad
Server and Customer
DB Server.
|
| n |
The
scalability model is based on many, independent, small-sized servers
that
share the application loads thanks to our software
architecture.
|
| n |
The
databases are designed to be easily split across several
servers
|
| n |
No
structural scalability limits on the existing software platform have
been
identified.
|
Availability:
It
is
important to note the following points about the platform's
availability:
|
n
|
All
critical servers in load-balancing configuration, with multiple
redundant
servers for each logic function
|
|
n
|
Single
point of failure servers, like border firewalls, are
in hot or cold swap
configuration
|
|
n
|
All
servers have internal redundant components, like RAID1 disks and
double
power supply
|
| n |
servers
and network components, as well as all critical application performance
indicators are monitored 24x7 by NetAlerter, with SMS based alarms
sent to
the system managers.
|
1st
Tier Technical Support: B!USA
will perform 1st tier support for Marketer over the phone via an operator
in the local language and via e-mail. For the purposes of this Agreement,
Marketer's 1st tier support
will involve carrying out diagnostics on any fault arising on the Equipment
that
supports Marketer's
services, sufficient to make an initial determination that there is, in
Marketer's opinion, a Fault.
B!USA
will track Faults that arise in B!USA's Software and Services.
2nd
Tier Technical Support: B!USA
will provide Maintenance and Support Services between the hours
of
9am and 6pm EST 365 days per year (the "Core Support Hours")
Telephone
Support - Scope
B!USA
will provide telephone support during the Core Support Hours in the local
language. Telephone support will include the following (1) clarification of
functions and features of B!USA Software; (2) clarification of the
Documentation; (3) guidance in operation of B!USA's Software; (4) assistance
in
identifying and verifying the causes of suspected Faults in B!USA's
Software
Resolution
of Faults - B!USA will:
|
1.
|
Maintain
systems and procedures sufficient to record effectively all information
it
receives from Marketer or otherwise in relation to any
Fault;
|
|
2.
|
Upon
receipt of any functional defect or performance impairment from
Marketer:
|
15
of
21
|
a.
|
Identify
and provide the Workaround and/or Repair the
Fault
|
|
b.
|
Ensure
that a Workaround is provided and/or the Fault is repaired within
the
Response
Times given.
|
|
3.
|
Promptly
upon the provision of a Workaround and/or Repair of the Fault advise
Marketer's point of
contact that this has occurred. Any such Fault will not be treated
as
Repaired until the Repair has
been accepted by Marketer
|
|
4.
|
Provide
the Marketer's 1Sttier
support team with details of the cause of the Fault and the remedial
action
taken. In the case of a Workaround, B!USA shall additionally inform
Marketer of the date when
a fully operational repair will be
provided.
|
|
5.
|
Provide
ongoing reports to a designated Marketer contact in accordance with
the
update times set out.
|
Upon
any
completed repair. B!USA will confirm to Marketer by email that the Fault been
repaired.
Priority
Rules: One
of
the most important details in the Fault Report Template is the Priority; this
field shows the urgency of the fault. The resolution times and communication
process will completely depend on
this
value. To assign a priority to a fault is necessary to follow the Priority
Rules
noted in the below table:
|
Priority
One
|
Functionality
of services fails, rendering the services wholly or
partially
inoperative.
|
|
Priority
Two
|
Failure
or degradation of a essential services, understanding
by degradation, that the system performance falls down
more
than 10%,referring
to the performance average during last week.
|
|
Priority
Three
|
Failure
of one or more components (hardware, middleware or software)
of a service that has no immediate business impact andremains
operational through a temporary or automated
workaround.
|
|
Priority
Four
|
Failure
of a single component (hardware, middleware or software)
of
a service that is non-business affecting and remains
operational
through
a satisfactory workaround and has been requested or is
expected
to be included as a fix, patch or feature of the next
release.
|
Response
Times and Timescales for Fault Correction: B!USA shall comply with the following
Response
Times in respect of Faults.
16
of
21
|
Fault
Classification
|
Initial
Response
|
Work
Around
|
Repair
|
B!USA to inform
Telefenica MOviles
Corporation
as to progress
|
|
|
||||
|
Priority
One
|
1
hour
|
10
hours
|
Immediate and
continuous effort
until
Repair
|
Every
30 min within Support
Hours
|
|
Priority
Two
|
2
hours
|
16
hours
|
Immediate and
continuous effort
until
Repair
|
Every 2 hours only
within
Support
Hours
|
|
Priority
Three
|
12
hours
|
N/A
|
30
days or such other
timescale
as may be
agreed
between the
parties.
|
Every
5 days
|
|
Priority
Four
|
2
Business
days
|
N/A
|
By Next New
Version
|
Monthly
|
Escalation
procedure and management awareness
B!USA
will notify its management personnel of Fault (as classified by Marketer
according to the following
time intervals, except in the widespread outages, of which all of these
management personnel
will be notified as soon as possible:
|
Supplier
Management
Lev
el
|
Priority 1
Fault
|
Priority 2
Fault
|
Priority
3 Fault
|
Priority 4
Fault
|
|
Supervisor
|
Immediate
|
2
hrs
|
12
hrs
|
N/A
|
|
Manager
|
Immediate
|
3
hrs
|
18
hrs
|
N/A
|
|
Senior
Manager
|
5
hr
|
12
hrs
|
24
hrs
|
N/A
|
|
CTO
|
10
hrs
|
24
hrs
|
Bi-monthly
|
N/A
|
Factoring
Policy:
B!
will
offer New Motion the factoring policy offered by M-Qube, Inc. For each calendar
month during
the term of this agreement, M-Qube through B! shall advance seventy percent
(70%) of the fees M-Qube
would have owed to such customer from applicable carrier content sales for
such
month, net of
the
M-Qube fee for such factoring. The 30% balance to be paid net 90 days as
disclosed by M-Qube upon receipt by B! USA. See Exhibit
E for
monthly advance fees charged by M-Qube.
17
of
21
Appendix
C
CONTACTS
|
Account
Manager for Operations at B! USA
|
Account
Manager for Service Promotions at
|
|
|
Name:
Xxxx Xxxxxx
|
Name:
____________
|
|
|
E-mail:
xxxx.xxxxxx@xxxxxxxxxx.xxx
|
E-mail:
____________
|
|
|
Phone
Number: x000000000000
|
Phone
Number: ____________
|
|
|
Cell
Phone Number: x0-000-000-0000
|
Cell
Phone Number: ____________
|
|
|
Commercial
Contact at B! USA
|
Commercial
Contact at
|
|
|
Name:
Xxxxxx Xxxxxx
|
Name:
____________
|
|
|
E-mail:
xxxxxx.xxxxxx@xxxxxxxxxx.xxx
|
E-mail:
____________
|
|
|
Cell
Phone Number: x0-000-000-0000
|
|
Phone
Number: ____________
|
|
Cell
Phone Number: ____________
|
18
of
21
APPENDIX
D
19
of
21
Schedule
6.1
NET
REVENUE SHARING
|
Buongiorno
Shortcodes
|
Country
|
Rev
Share to
B!
USA
|
Rev
Share to New
Motion
|
|
Percentage
paid
each
month on all
Revenue
up to
1MM
in Rev
|
North
America
|
5%
|
95%
|
|
Percentage
paid
each
month on all
Revenue
above
1MM
in Rev
|
North
America
|
2.5%
|
97.5%
|
*Above
Percentages apply so long as New Motion Inc. Delivers a minimum of $2 million
per month in gross
billable monthly revenue within 6 months. Upon the start of the six month
(7/10/06) In the event New
Motion drops below $2 million per month in xxxxxxxx in any given month the
below
revenue share will
apply for each month with less than the required minimum. averages 6,500 daily
acquired subscribers
(net of whether they are billable) during the initial one year term. In the
event New Motion Inc.
falls below the average 6500 subscriber a day threshold the revenue share
applied is illustrated below.
|
Buongiorno
Shortcodes
|
Country
|
Rev
Share to
B!
USA
|
Rev
Share to NewMotion
|
|
Percentage
paid
each
month on all
Revenue
up to
1MM
in Rev
|
North
America
|
8%
|
92%
|
|
Percentage
paid
each
month on all
Revenue
above
1MM
in Rev
|
North
America
|
3%
|
97%
|
20
of
21
EXHIBIT
MONTHLY
ADVANCE
For
illustrative purposes only, if:
|
·
|
Customer
elects, as specified on Exhibit
A, to
have the Monthly Advance paid within 15 days of the end of the month;
and
|
|
·
|
The
estimated Customer Revenue Share is equal to $10,000 in such month,
|
then:
|
·
|
m-Qube
shall remit to Customer $6,650, the Net Advance (70% of Customer's
estimated Customer Revenue Share, or $7,000 Monthly Advance,
minus m-Qube's Fee or $350) within 15 days of the end of the
month;
|
|
·
|
m-Qube
shall retain $350 as its fee (5.00% [the fee which pertains to a
advance
within 15 days of the end of the month as specified on Exhibit
A] of
$7,000
(which
amount represents the Monthly Advance));
and
|
|
·
|
m-Qube
shall pay to Customer $3,000 ($10,000 Customer Revenue Share, to
the extent collected, less the $7,000
Monthly
Advance) within 30 days of
collection.
|
21
of
21
