EXHIBIT 10.23
BSP REWARDS MEMBER PROVIDER AGREEMENT
THIS AGREEMENT (the "AGREEMENT") entered into as of the 1st day of March, 2004
(the "EFFECTIVE DATE") provides the terms and conditions under which MediaNet
Group Technologies, Inc., a Nevada corporation having an address at 0000 X.
Xxxxxx Xxxx Xxxxx 000 Xxxxxxx, XX 00000 XXX ("MEDIANET"), authorizes Celmark
Direct / Vitaquest a Delaware Corporation having an address at 0 Xxxxxxxxx,
Xxxx, Xxxxxxxx, XX ("MEMBER PROVIDER") to be its true and lawful Member Provider
for the purpose of providing members, or having others provide members, to the
BSP Rewards program in accordance with the terms and conditions contained in
this Agreement. This Agreement, together with the other agreements and schedules
referenced in it, contains the complete terms and conditions between the
parties.
MEDIANET AND MEMBER PROVIDER AGREE AS FOLLOWS:
1. LICENSE
Subject to this Agreement MediaNet, Inc., Inc. hereby grants you a
non-exclusive, non-transferable BSP Rewards license for so long as you
participate in the Service and adhere to this Agreement, to access, participate
in and use the Service. You agree that you obtain no rights other than the
rights and licenses expressly granted in this Agreement.
2. UTILIZATION
The Member Provider intends to utilize the BSP Rewards program for itself and
market the program to its members and to companies and various businesses and
organizations ("BUYERS"). During the Term of this Agreement, Member Provider
shall have the right to remarket the BSP Rewards program subject to approval by
MediaNet, which approval will not be unreasonably withheld.
3. COMPENSATION
MediaNet shall pay Member Provider a fee in accordance with the annexed
Compensation Schedule. MediaNet will remit payment as directed by Member
Provider in the time frames noted on the Compensation Schedule attached hereto.
4. PUBLICITY
Member Provider and MediaNet agree that broad publicity with respect to the
relationship developed by this Agreement, and the advantages of such
relationship, will be permitted and actively encouraged and supported by both
parties. This publicity initiative will include, but is not limited to, press
releases issued by Member Provider and MediaNet, publicizing the strategic
alliance between the parties, on site promotion, direct mail and email
campaigns. In this regard, Member Provider and MediaNet shall agree on the form
and content of the press release prior to its release.
5. PROPRIETARY RIGHTS
5.1 OWNERSHIP. MEMBER PROVIDER understands and agrees that MediaNet is the
exclusive holder of and shall retain, all right, title and interest in and
to the BSP Program, Portal, Content and Engine and the pages, including
without limitation including all intellectual Property therein site
(EXCLUDING PROPRIETARY PAGES PROVIDED BY MEMBER PROVIDER).
5.2 INTELLECTUAL PROPERTY. Nothing herein shall grant a party any right,
title or interest in the other party's Intellectual Property, except as
explicitly set forth herein. At no time during or after the Term of this
Agreement shall a party challenge or assist others to challenge the other
party's Intellectual Property or the registration thereof or attempt to
register any trademarks, marks or trade names confusingly similar to those
or the other party.
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5.3 INTELLECTUAL PROPERTY WARRANTY. The MediaNet Brand-A-Port Service and
the operation of the site(s) and co-branded site(s) as currently operated
by MediaNet, Inc. is designed to provide a service and/or link taking the
end-user to it's originating website. Other than claims arising out of the
use of the Brand-A-Port services, MediaNet shall not be responsible for
unauthorized use of the Co-branded sites by Member Provider or users of
Member Provider's Sites.
6. CONFIDENTIALITY
6.1 CONFIDENTIALITY INFORMATION. Each party (the "RECEIVING PARTY")
acknowledges that by reason of its relationship to the other party (the
"DISCLOSING PARTY") hereunder, the Receiving Party will have access to
certain information and materials, including the terms of this Agreement,
concerning the Disclosing Party's business, plans, technology, products and
services that are confidential and of substantial value to the Disclosing
Party, which value would be impaired if such information were disclosed to
third parties ("CONFIDENTIAL INFORMATION"). The Receiving Party agrees that
it shall not use in any way for its own account or the account of any third
party, nor disclose to any third party, any such Confidential Information
revealed to it by the Disclosing Party. The Receiving Party shall take
every reasonable precaution to protect the confidentiality of Confidential
Information. Upon request by the Receiving Party, the Disclosing Party
shall advise whether or not it considers any particular information to be
Confidential Information. The Receiving Party shall not publish any
technical description of the Disclosing Party's Confidential Information
beyond any descriptions published by the Disclosing party. In the event of
expiration or termination of this Agreement, there shall be no use or
disclosure by the Receiving Party of any Confidential Information of the
Disclosing Party, and the Receiving Party shall not develop any software,
devices, components or assemblies utilizing the Disclosing Party's
Intellectual Property. Both parties agree that the terms and conditions of
this Agreement are confidential and shall not be disclosed to any third
party, unless disclosure is compelled by final, non-appealable order of a
court of competent jurisdiction.
BSP AGREES TO KEEP THE NAMES OF ALL MEMBERS PROVIDED HEREUNDER AS
CONFIDENTIAL, AND SHALL NOT SHARE THAT INFORMATION WITH ANY OTHER COMPANY
OR ENTITY. BSP ALSO AGREES THAT THEY WILL NOT SOLICIT THE MEMBERS PROVIDED
WITHOUT THE PRIOR CONSENT OF THE MEMBER PROVIDER.
6.2 EXCLUSIONS. Confidential Information does not include information
permitted to be disclosed under section 5 and any information that the
Receiving Party can demonstrate by written records: (a) was known to the
Receiving Party prior to its disclosure hereunder by the disclosing party;
(b) is independently developed by the Receiving Party; (c) is or becomes
publicly known through no wrongful act of the Receiving Party; (d) has been
rightfully received from a third party whom the Receiving Party has
reasonable grounds to believe is authorized to make such disclosure without
restriction; (e) has been approved for public release by the Disclosing
Party's prior written authorization, or (f) must be produced or disclosed
pursuant to applicable law, regulation or court order, provided that the
Receiving Party provides prompt advance notice thereof to enable the
Disclosing Party to seek a protective order or otherwise prevent such
disclosure. In addition, Member Provider and MediaNet may disclose the
existence and terms of this Agreement in connection with a potential
acquisition of substantially the entire business of the other party, or a
private or public offering of securities of either party.
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7. LIMITATION OF LIABILITY
NEITHER MEMBER PROVIDER NOR MEDIANET MAKES ANY WARRANTY WHATSOEVER WITH REGARD
TO THE FEATURES, FUNCTIONS, PERFORMANCE, QUALITY OR OTHER CHARACTERISTICS OF THE
SERVICE EACH COMPANY PROVIDES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO EACH
OTHER OR ANY OTHER ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT
DAMAGES, HOEVER CAUSED, ON ANY THERORY OF LIABILITY, AND NOTWITHSTANDING ANY
FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. MEMBER PROVIDER SHALL NOT BE
LIABLE TO MEDIANET OR ANY OTHER PARTY FOR ANY DAMAGES ARISING FROM THIRD PARTY
UNAUTHORIZED ACCESS OR USE OF THE MEDIANET SERVICE OR ANY IMAGES OBTAINED BY
USING THE MEDIANET SERVICE. MEDIANET SHALL NOT BE LIABLE TO MEMBER PROVIDER OR
ANY OTHER PARTY FOR ANY DAMAGES ARISING FROM THIRD PARTY UNAUTHORIZED ACCESS OR
USE OF THE MEDIANET SERVICE OR ANY IMAGES OBTAINED BY USING THE MEDIANET
SERVICES.
8. DISCLAIMERS
MEDIANET DISCLAIMERS. MEDIANET MAKES NO OTHER WARRANTIES OF ANY KIND, EITHER
EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE MEDIANET, PICTUREJUDGE
OR BRAND-A-PORT SERVICE, AND MEDIANET SPECIFICALLY DISCLAIMS ANY IMPLIED
WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR
PURPOSE. MEDIANET DOES NOT WARRANT THAT THE OPERATION OF THE MEDIANET SERVICE
WLL BE UNITERRUPTED OR ERROR-FREE. FURTHERMORE, MEDIANET DOES NOT MAKE ANY
REPRESENTATIONS REGARDING THE USE OF THE RESULTS OF THE USE OF THE MEDIANET SITE
IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE.
9. TERMS AND TERMINATION
9.1 TERM. The term of this Agreement shall commence on the Effective Date
and continue for a period of 1 year after the Effective Date, if agreed by
both parties within 30 days of license expiration, unless earlier
terminated as set forth herein (the "TERM"). This Agreement shall renew for
successive 1-year periods, after the initial 1 Year Term. Either party may
terminate the Agreement on 60-days written notice during a renewed term.
However, in no event shall termination of this Agreement by MediaNet
relieve it of the obligation to remit payment to Member Provider for
services provided by Member Provider prior to such termination. The
obligation to remit payment shall survive termination of this Agreement and
be enforceable so long as MediaNet continues benefiting directly from the
members enrolled by the Member Provider and/or the affiliates and member
providers introduced and contracted through Member Provider.
9.2 TERMINATION FOR BREACH OR INSOLVENCY. A party shall have the right to
terminate this Agreement on written notice if (a) the other party ceases to
do business in the ordinary course or is insolvent (i.e., unable to pay its
debts in the ordinary course as they come due), or is declared bankrupt, or
is the subject of any liquidation or insolvency proceeding which is not
dismissed within 90 days, or makes any assignment for the benefit of
creditors, or (b) the other party breaches any material term of this
Agreement, including timely payments, and fails to cure such breach within
30 days after written notice thereof (collectively referred to here in as
"TERMINATING EVENTS"). In the event of a Terminating Event, involving
Member Provider, other than for an event involving fraud or dishonesty by
Member Provider, MediaNet shall be entitled to offset payments due under
this Agreement against its costs incurred as a result of the Terminating
Event, but shall remain obligated to remit all payments due under this
agreement as a direct or indirect result of the activities of Member
Provider prior to the effective date of termination.
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10. EFFECT OF TERMINATION.
Upon the expiration or termination of this Agreement:
10.1 Each party shall, within 30 days of such expiration or termination
return to other party or destroy all Confidential Information and all other
material received from such other party.
10.2 All rights granted by Member Provider hereunder to MediaNet shall
terminate. All rights granted by MediaNet hereunder to Member Provider
shall terminate, subject to the continuing obligation of MediaNet to remit
payment pursuant to the provisions of Sections 3, 9 and Compensation
Schedule.
10.3 Sections 5, 6, 7, 9, 10, 11, 12 and 13 shall survive the expiration or
termination of this Agreement for any reason.
11. REMEDIES
11.1 INDEMNIFICATION. Member Provider and MediaNet shall indemnify and hold
harmless each other, and their respective directors, officers, employees,
and agents, from and against all claims, losses, damages and expenses
(including reasonable attorney's fees) resulting from the breach of any
agreement, representation or warranty set forth herein; provided the
indemnified party provides the indemnifying party with (i) prompt written
notice of such claim or action, (ii) sole control and authority over the
defense or settlement of such claim or action and (iii) proper and full
information and reasonable assistance to defend and/or settle any such
claim or action.
11.2 INJUNCTIVE RELIEF. The parties acknowledge that the breach or
threatened breach of any term of this Agreement would cause irreparable
harm to the non-breaching party, the extent of which would be difficult to
ascertain. Accordingly, each party agrees that, in addition to any other
remedies to which a party may be legally entitled, a party may seek
immediate injunctive relief in the event of a breach or threatened breach
of such sections by the other party or any of the other party's employees
or subcontractors.
12. MISCELLANEOUS
12.1 ASSIGNMENT. This Agreement will be binding upon and inure to the
benefits of the parties hereto and their permitted successors and assigns.
Neither party may assign or otherwise transfer this Agreement without the
other party's prior written consent except to a successor.
12.2 WAIVER AND AMENDMENT. No modifications, amendment or waiver of any
provision of this Agreement shall be effective unless in writing and signed
by the party to be charged. No failure or delay by either party in
exercising any right, power, or remedy under this Agreement shall operate
as a waiver of any such right, power or remedy.
12.3 GOVERNING LAW. The laws of the State of Florida shall govern this
Agreement, without reference to conflicts of law provisions.
12.4 NOTICES, ETC. Any notice required or permitted by this Agreement shall
be deemed given if delivered by Certified or Registered Mail, postage
prepaid, addressed to the other party at the address shown at the beginning
of this Agreement or at such other address for which such party gives
notice hereunder. Delivery shall be deemed effective 3 days after deposit
with postal authorities. Email, facsimile or other form of transmission
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pursuant to which MediaNet receives actual notice of the accounts into
which the funds are to be wired may give notices of the accounts into which
payment is to be wired shall be effective and MediaNet shall be entitled to
rely upon them as if they were sent in accordance with the notice
provisions of this paragraph.
12.5 INDEPENDENT CONTRACTORS. The parties are independent contractors with
respect to each other. Each party is not and shall not be deemed to be an
employee, agent, joint venture partner or legal representative of the other
for any purpose and shall not have any right, power, or authority to create
any obligation or responsibility on behalf of the other.
12.6 SEVERABILITY. If any provision of this Agreement shall be held by a
court of competent jurisdiction to be contrary to law, such provision shall
be changed and interpreted so as to best accomplish the objectives of the
original provision to the fullest extent allowed by law and the remaining
provisions of this Agreement shall remain in full force and effect.
12.7 COMPLETE UNDERSTANDING. This Agreement constitutes the final, complete
and exclusive agreement between the parties with respect to the subject
matter hereof, and supersedes any prior or contemporaneous agreement,
either written or oral.
12.8 FORCE MAJEUR. Except with respect to obligations to make payments
hereunder, neither party shall be deemed in default hereunder, nor shall it
hold the other party responsible for, any cessation, interruption or delay
in the performance of its obligations hereunder due to causes beyond its
reasonable control including, but not limited to: earthquake, flood, fire,
storm or other natural disaster, act of God, labor controversy or threat
thereof, civil disturbance or commotion, disruption of the public markets,
war or armed conflict or the inability to obtain sufficient material,
supplies, labor, transportation, power or other essential commodity or
service required in the conduct of its business, including internet access,
or any change in or the adoption of any law, ordinance, rule, regulation,
order, judgment or decree.
12.9 CONTENT. Member Provider shall have the right to approve the content
of any and all banners, advertisements or buttons MediaNet offers to place
on the Portal and to restrict, limit or otherwise control all links
MediaNet places on the Portal. While Member Provider agrees that its
approval shall not unreasonably be withheld, it shall not be deemed
unreasonable to refuse approval if the link directs website visitors to
websites offering products or services that are in conflict or compete with
products or services offered by the Member Provider, the Consortium or the
businesses, products or services the Member Provider chooses to promote
through the Portal. It shall also not be deemed to be unreasonable to
withhold consent on the basis of the real or apparent unsavory or prurient
nature of the ads or the websites to which they link.
12.10 NO DISPARAGEMENT. Each party agrees that, during the Term of this
Agreement and for a period of five (5) years thereafter, neither will make
written or oral comments regarding the other that are negative,
disparaging, tend to bring the other into disrepute or call into question
the business acumen, character, honesty or integrity of the other.
12.11 POLICIES. Member policies and rules as set forth in Service
materials, including materials of Contributing Companies, either in print
or on the BSP Rewards website (collectively, the "Policies"). The Policies,
including any amendments that may be made from time to time, are hereby
incorporated by reference into this Agreement. BSP Rewards may modify the
Policies at any time. This Policies as so amended will be posted on the BSP
Rewards website, and members continued use of the Service thereafter will
constitute acceptance of any such amendment.
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13 NO UNAUTHORIZED USE OF THE SERVICE.
Member Provider agrees that it will not, and will not knowingly, and will not
give permission to others to:
13.1 provide any unauthorized third party with access to the Service or any
information, data, text, links, images, software, chat, communications and
other content available through the Internet and proprietary to BSP Rewards
(collectively, "Content") by any means;
13.2 modify, reverse engineer, reverse assemble or decompile any of the
software applications used by you in connection with your participation in
the Service;
13.3 engage in any activity that does not comply with U.S. law or other
applicable law and regulations or otherwise engage in any illegal,
manipulative or misleading activity through the use of the Service;
13.4 introduce into the Service any code intended to disrupt the Service,
alter or delete its Content, access confidential Content on the BSP Rewards
website or interfere with the operation of the Service, including, but not
limited to, distribution of unsolicited advertising or mail messages and
propagation of computer worms and viruses;
13.5 post any material in any form whatsoever on the BSP Rewards website or
within the portal, PictureJudge or other Service that is defamatory,
obscene or otherwise unlawful or violates any third party's right of
privacy or publicity; or
13.6 infringe any third party's patent, copyright, service xxxx, trademark
or other intellectual property right of any kind or misappropriate the
trade secrets of any third party in connection with your use of the
Service.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
effective as of the day and year last set forth below.
MEDIANET GROUP TECHNOLOGIES, INC. LEGAL NAME:
Celmark Direct / Vitaquest
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxxx Xxxxxxx
--------------------------------- ------------------------------------
Signature Signature
By: Xxxxxx X. Xxxxx By: Xxxxxxx Xxxxxxx
Title: Chief Executive Officer Title: Exec V.P
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COMPENSATION SCHEDULE
This Compensation Schedule is attached hereto and made a part thereof that
certain BSP Rewards Member Provider Agreement of even date:
Member Provider shall be entitled to receive compensation under the Member
Provider in the following manner:
COMPENSATION:
BSP REWARDS PROGRAM: MediaNet shall, upon collection, remit to Member
Provider _1_% of the net Rewards earned by Members through and provided directly
by it, and _1_% of the net Member Rewards received and collected that is earned
through Merchants, Companies, Organizations, Groups and individuals that have
been contracted through Member Provider.
BSP PORTAL SALES: MediaNet shall remit to Member Provider 20% of the price
of each Portals sold directly by it.
BSP MONTHLY HOSTING FEES: In addition, MediaNet shall remit to Member
Provider an amount equal to 10% of the hosting fees paid by Buyers who purchase
portals or host websites with MediaNet as a direct result of the activities of
Member Provider, whether those activities are sold through the portal or
independent of it.
PAYMENT OF COMPENSATION (SUBJECT TO RECEIPT OF GOOD, VALID FUNDS)
PORTAL SALES: MediaNet shall remit all sums due to Member Provider within
30 days of receipt of cleared funds.
MONTHLY HOSTING FEES: In addition, MediaNet shall remit hosting fees to
Member Provider in monthly installments on or before the 15th business day of
each month. All sums received by MediaNet through the last business day of the
preceding month shall be included in the calculation of the amount to be
remitted.
BSP REWARDS MEMBER PURCHASES VOLUME: Amounts due for purchases of products
or services shall be calculated as of funds received by the last day of each
month and remitted on or before the 15th day of the following month.
RECORDS
MediaNet shall maintain books and records and shall provide for online
confirmation of sales and payments. MediaNet shall permit Member Provider or its
designees reasonable access during normal business hours and, upon request, to
verify funds and payments due pursuant to this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
effective as of the day and year last set forth below.
MEDIANET GROUP TECHNOLOGIES, INC. LEGAL NAME:
Celmark Direct / Vitaquest
/s/ Xxxxxx X.Xxxxx /s/ Xxxxxxx Xxxxxxx
--------------------------------- ------------------------------------
Signature Signature
By: Xxxxxx X. Xxxxx By: Xxxxxxx Xxxxxxx
Title: Chief Executive Officer Title: Exec V.P.
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