Exhibit 10.15
RESELLER AGREEMENT
1. Agreement. This Agreement is made as of December 22, 2000 with a term of two
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(2) years and subsequent terms of one (1) year, each self renewing annually
unless terminated as provided in Section 13 or unless either party gives the
other party at least sixty (60) days' notice of intent not to renew prior to the
expiration of the then current term ("Term"), by and between CentrPort, Inc.
with an office at 000 Xxxx Xxxxxx Xxxx, Xxxxxxxx, XX 00000 ("Vendor") and Modem
Media, Inc. with an office at 000 Xxxx Xxxxxx, Xxxxxxx, XX 00000 ("Reseller").
This Agreement will be effective upon the closing of the transactions
contemplated by the Stock Purchase Agreement, dated as of the date hereof (the
"SPA") among Vendor, Reseller and Xxxxxx Xxxxxx Partners and certain other
investors. ("Effective Date").
2. Resale.
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a. Subject to all the terms and conditions of this Agreement, Vendor hereby
appoints Reseller for the term of this Agreement as a third party reseller
of the services and products as set forth in Attachment A ("Products") to
this Agreement bundled with Reseller's goods or services or on a stand
alone basis.
b. Reseller agrees to treat Vendor as its preferred vendor for Products for
all of Reseller's Clients during the term of this Agreement. As part of
this relationship, Reseller shall use its reasonable best efforts to
resell Products, i.e. Reseller shall conduct the up front marketing effort
to sell Products to Client Prospects and Clients (as both terms are
defined below) and Reseller shall, to the extent it is reasonably likely
Vendor's Products will be needed, include the Products in any sales pitch
in which Reseller participates. Reseller shall develop necessary
specifications in accordance with the requirements form as set forth on
Attachment B for the Products for a Client and/or a Client Prospect so
that Vendor may provide the Products.
c. In the event a Client or Client Prospect contacts Vendor directly, Vendor
will notify Reseller. Except as set forth below, at no time during the
Term shall Vendor initiate contact intended to result in a contract or
sale, directly with any Client or Client Prospect. At no time during the
Term and for 12 months after the expiration or termination of this
Agreement shall Vendor sell its services or products through another
reseller to a Client or Client Prospect without the written consent of
Reseller's President; provided, however, such consent will be given under
the following circumstances:
i. Vendor may directly (and not through another reseller) sell its
products and services to a Client or Client Prospect if Reseller
has not provided services for a fee to such Client or Client
Prospect for ninety (90) days;
ii. Vendor may directly and through another reseller sell its
products and services to a Client or Client Prospect if Reseller
has not provided services for a fee to such Client or Client
Prospect for more than six (6) months;
iii. Vendor may provide Products directly (and not through another
reseller) to any Client or Client Prospect if Reseller attempts
to resell Products to a Client or Client Prospect, but such
Client or Client Prospect elects to purchase such Products from
Vendor directly;
iv. Vendor may provide Products directly and through another reseller
to any Client or Client Prospect after Vendor advised Reseller
that it has received an indication of interest from a Client or
Client Prospect for its Products and Reseller elects not to
provide such Products to such Client or Client Prospect; and
v. Vendor may provide Products directly (and not through another
reseller) to a division or business unit of a Client in which
Reseller is not providing services and Reseller has advised
Vendor that it does
not intend to solicit the business of such division to provide
services during the next six month period.
d. Vendor may in its discretion discontinue or modify any Product
upon sixty (60) days' notice except that Vendor will continue to
provide Products for any signed Statement of Work ("SOW") between
Client and Reseller through the term of such SOW in accordance
with the specifications provided therein.
e. For purposes of this Agreement, "Client" shall mean any third
party, corporation or entity that Reseller provides services for
a fee; provided, however, if Reseller is providing services to a
particular division or a business unit of such entity for a fee,
the whole corporation or entity is deemed a Client for purposes
of this Agreement. "Client Prospect" shall mean a third party
corporation or entity whom Reseller is in the process of
soliciting business as evidenced by a response by Reseller to an
RFI, RFP and the issuance of a proposed SOW by Vendor to
Reseller; provided, however, such third party shall no longer be
deemed a Client Prospect upon the rejection of Reseller's RFP,
RFI or SOW and three months have passed; provided, further, if
Reseller is soliciting a particular division or a business unit
of such entity, the whole corporation or entity is deemed a
Client Prospect for purposes of this Agreement. "Products" shall
include Vendor's products, services or licenses specified in
Attachment A, and any other services or licenses Vendor and
Reseller may agree mutually in writing to add to this Agreement.
f. The parties acknowledge that Reseller has been acting as a
reseller prior to the Effective Date. The parties agree that the
terms and conditions of this Agreement shall apply to any SOWs in
effect prior to the Effective Date, which are set forth on
Attachment D hereto. Except as set forth on Attachment D,
Reseller agrees that no commissions are owned by Vendor for any
SOW in effect prior to the Effective Date.
3. Price, Payment Terms, MFN and Commitment.
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a. Reseller shall pay to Vendor the amounts specified in Attachment
C for Products delivered hereunder unless the parties agree
otherwise, as evidenced in a signed SOW. All payments due
hereunder to Vendor shall be paid to Vendor in US dollars not
later than thirty (30) days following the date of the applicable
invoice. All out of pocket expenses of Vendor shall not be
reimbursed by Reseller unless otherwise agreed to by the parties
in a signed SOW. Each month Vendor shall issue an invoice only
upon completion or performance of work or services being invoiced
during that month unless the parties have agreed to an invoicing
schedule in a SOW. Vendor will be responsible for all taxes
(except Reseller's income taxes), duties, costs of compliance
with export, import and customs controls and regulations, and
other governmental assessments, unless the tax laws require
otherwise.
b. Every three months Vendor and Reseller will meet to discuss the
competitiveness of the Products, including the pricing set forth
in Attachments A and C. The parties will discuss the pricing and
product packaging in light of current market conditions and
Reseller's actual use of the services incorporated in the pricing
of certain Products. Reseller will provide to Vendor its written,
detailed and documented assessment of the quality, price and
service level of Vendor's Products and their acceptance in the
marketplace. In addition, Reseller will advise Vendor of any
concerns its Clients have with the Products in light of privacy
concerns or regulations and advise Vendor of any modifications to
any Products or additional Products that it believes may be
appropriate to address such concerns. Reseller will identify the
instances and circumstances in which it has found Vendor's
Products, services or pricing not to be competitive with other
products in the marketplace. Based on Reseller's assessment of
the market conditions, Vendor agrees that it will consider
Reseller's assessment and use its best efforts to ensure that its
Products' pricing, quality and services are highly competitive in
the marketplace. If it is determined that Reseller does not
utilize all of the services set forth in a particular Product,
Reseller and Vendor will work together to modify the definition
of the Products and the pricing for such modified Product. Vendor
will not increase the prices to Reseller as set forth in
Attachment C more than every three months for the first year and
more than once every six months for the second year. Reseller
must receive 60 days' written notice of any such price increases.
Notwithstanding the foregoing, price increases shall not be
effective for any SOW in effect prior to any price increase.
c. Notwithstanding the foregoing, if Vendor enters into a reseller
arrangement with a third party or a direct arrangement with any
third party (including a Client or Client Prospect) for any of
the Products or similar products (as defined in Attachment A) at
a similar or lesser dollar commitment level than set forth
herein, the terms of which offer that reseller or third party a
larger discount or lesser pricing on that specific level of
service or product, taken individually or as a group, than set
forth herein, Reseller shall be afforded the same discount or
pricing on that specific level of service (less 10% if such
pricing is to a non-reseller) for the duration offered to such
third party or reseller.
d. If, during the period from January 1, 2001 through December 31,
2001, Vendor has Revenue (as defined below) in an amount less
than $5.0 million (a "Commitment Level") as a result of this
Agreement or Reseller's other efforts as defined in Section
3(d)(i) ("Received Amount"), Reseller shall, at its election, by
March 31, 2002, either (x) pay to Vendor the difference between
the Commitment Level and the Received Amount (the "Unpaid
Amount") or (y) transfer to Vendor a number of Vendor shares of
common stock equal to the value of the Unpaid Amount.
i. For purposes of this Section 3(d), Revenue recognized by
Vendor in connection with the following shall be included in
the definition of Received Amount ("Additional Revenue"):
(x) Revenue recognized by Vendor in connection with its
arrangements with a third party, Client or a Client Prospect
that result in the right of Reseller to receive a Commission
as set forth in Section 3(f); or (y) Revenue (not to exceed
$750,000 in the aggregate) recognized by Vendor in
connection with its arrangements with a third party, Client
or Client Prospect as a result of Reseller referring such
entity to Vendor. Notwithstanding the previous sentence,
Revenue recognized by Vendor from the General Electric
Financial Assurance division of General Electric shall be
excluded.
ii. If a Client provides Reseller with written notice of a
failure to meet the warranties or the required quality of
the Products and services set forth in this Agreement or a
signed SOW and such failure results from Vendor's failure to
meet its obligations, including stated technical
specifications and/or services of Vendor, Reseller shall
promptly notify Vendor in writing of such notice. If such
Client affords Reseller an opportunity to cure such failure,
Vendor shall have the opportunity to cure such failure in
the time frame allotted to Reseller. Thereafter, if not
cured and if the Client terminates its agreement with, or
reduces its commitment to, Reseller to purchase Products due
to such failure, the Commitment Level shall be reduced by
the amount of Revenue such Client contracted for or
committed to. In addition, if a client of Vendor terminates
its agreement with, or reduces its commitment to, Vendor to
purchase Products due to a failure of Vendor to provide
Products that meet the warranties hereunder or the required
quality of the Products and services and such arrangement
would have been deemed Additional Revenue, the Commitment
Level shall be reduced by the amount of Revenue such client
contracted for or committed to.
iii. If laws or regulations are enacted or promulgated regarding
privacy, database usage or the ability to use cookies or web
bugs and the effect of such laws or regulations is to make
it illegal or otherwise commercially impracticable to use
the Products or the System, Reseller shall have the right to
terminate its obligations under Section 3(d), and such
obligations shall be null and void.
iv. If Vendor declines to accept an SOW from Reseller for
Products and such SOW reflects pricing at least at the
levels set forth in Attachment C, as amended, the Commitment
Level shall be reduced by the amount of Revenue from such
SOW.
v. The number of shares in Section 3(d)(y) shall be determined
by dividing (x) the Unpaid Amount by (y) $.600096
vi. For purposes of Section 3(d), Revenue shall mean all revenue
recognized by Vendor and any of its subsidiaries, in
accordance with US GAAP and Vendor's past accounting
practices consistently applied. Revenue shall be calculated
before any discounts for warrants issued to Reseller or any
other third party.
vii. If the Unpaid Amount is equal to or less than $750,000, the
Unpaid Amount will be reduced by any Revenue recognized by
Vendor in the first quarter of 2002 for work that a Client
or third party contracted for or committed to prior to
January 1, 2002 (as evidenced by a signed SOW), and which
was accepted by Vendor.
e. Reseller shall have the right to audit Vendor's books and records
to confirm the Unpaid Amount as set forth in Section 3(d), and
compliance with the most favored nations provisions set forth in
Section 3(c) and to ensure compliance with this Agreement. Such
audit cannot occur more than once per quarter and shall occur
only during Vendor's normal business hours and upon reasonable
advance notice to Vendor. Reseller shall complete such audit
within no more than fifteen (15) business days, provided that
Vendor co-operates with Reseller in its conduct of the audit.
Such audit will be at Reseller's expense. However, if Vendor is
found to not be complying with this Agreement with respect to the
scope of the audit, Vendor shall reimburse Reseller for all costs
associated with the audit, along with any discrepancies
discovered, within thirty (30) days after completion of the
audit.
f. If Vendor provides Products directly (and not through another
reseller) to any Client or Client Prospect pursuant to Section
2(c)(iii), Vendor shall pay a commission to Reseller in an amount
equal to 10% for the first $500,000 of Revenue received from such
Client or Client Prospect and 5% on any additional Revenue
received by Vendor. Vendor shall pay all amounts due under this
Section 3(f) to Reseller forty-five (45) days from monthly
completion of the work performed for such Client. Upon the
expiration or termination of the Agreement, Reseller shall
continue to receive Commissions for any SOW in effect at the time
of such termination or expiration until such SOW terminates.
g. Vendor shall have the obligation to use its reasonable best
efforts to pursue all referrals given by Reseller. Once each
month, Vendor shall provide Reseller with details of the status
of all referrals made by Reseller to Vendor.
h. Vendor shall issue to Reseller the following warrants to purchase
shares of common stock of Vendor, which warrants shall be fully
vested at the time of issuance and shall be issued pursuant to
the form of Warrant Agreement attached hereto as Attachment E.
i. During 2001, if Vendor recognizes Warrant Revenue equal to
$7.5 million, Vendor will issue Reseller warrants to
purchase 587,406 shares of common stock of Vendor. Vendor
will issue Reseller additional warrants to purchase 391,604
shares of common stock for every incremental $2.5 million of
Warrant Revenue achieved above $7.5 million during 2001. All
warrants issued pursuant to Section 3(h)(i) shall be at an
exercise price of $.750120.
ii. During 2002, if Vendor recognizes Warrant Revenue equal to
$10 million, Vendor will issue Reseller warrants to purchase
587,406 shares of common stock of Vendor. Vendor will issue
Reseller additional warrants to purchase 391,604 shares of
common stock for every incremental $2.5 million of Warrant
Revenue achieved above $7.5 million during 2002. All
warrants issued pursuant to Section 3(h)(ii) shall be at an
exercise price of $.900144.
iii. Notwithstanding the previous section, Vendor shall not be
obligated to issue to Reseller warrants representing more
than 2,349,624 shares of common stock pursuant to Section
3(h), in the aggregate over such two-year period.
iv. Warrant Revenue shall have the same meaning as Revenue
hereunder, provided, however, that the $750,000 limit set
forth in section 3(d)(i)(4) shall not apply.
4. Product Names. Reseller is granted a royalty free, irrevocable,
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worldwide license to use Vendor's then-current names, marks, logos,
and other identifiers for the Product ("Marks") and Vendor designated
intellectual property related notices in connection with Reseller's
advertising and promotion for such Products, provided that Reseller
will: (i) only use Marks in the form and manner, and in accordance
with the quality standards that
Vendor specifically prescribes; (ii) submit samples of all Product
advertising to Vendor for approval; and (iii) upon termination of this
Agreement for any reason, immediately cease all use of the Marks and
the license will terminate. Reseller will not use, register or take
other action with respect to any name, logo, trademark, service xxxx,
or other identifier used anywhere in the world by Vendor, except to
the extent authorized in writing by Vendor in advance. Reseller may
use Marks to promote the fact that Vendor is a service provider for
and/or partner of Vendor, provided Vendor has approved the promotional
materials. Reseller acknowledges that Vendor's brands are important to
the value of Vendor's business. Therefore, Reseller agrees that
Vendor's brand or trademarks will be present when Reseller sells
Products; provided, however, Vendor and Reseller shall work together
to determine the appropriate means by which to promote Vendor's brands
as part of Reseller's services.
5. Support.
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a. Vendor will provide presentations on general capabilities and
pricing to Reseller's domestic offices every six months and with
respect to its international offices as mutually agreed to by the
parties. Vendor will at least every six months provide Reseller
account team members with training on its Products, its
operations and its analytical products and services and will
provide Reseller's technology personnel with training on its
technology. In addition, if a new version or upgrade of Vendor's
technology is released, Vendor will as soon as practical provide
training as to the details of such new version.
b. Vendor shall dedicate at least four full time sales \ account
representatives to Reseller's account no later then March 31,
2001, of which two will be based on the East Coast and two will
be based on the West Coast. As of the Effective Date at least one
person will be dedicated and located on the East Coast. Reseller
shall have the right to reject the assignment of any of Vendor's
employees to Reseller to serve in such sales support capacity so
long as such rejection is based on reasonable and documented
performance based concerns. If Reseller rejects the assignment of
any of Vendor's employees as sales\account representatives to
Reseller more than two times, then the March 31, 2001 deadline
shall be extended for a period of up to two (2) months. During
the Term, the parties will work together to determine if a
greater number of dedicated account representatives is required
based on the number of Reseller's Clients, and the value and
complexity of the Products and services provided to those
Clients. Reseller shall have the right to designate the projects,
functions and location for such dedicated sales support, which
may include supporting Reseller's sales efforts with its Clients,
provide assistance to Reseller during the sales and proposal
process and assisting in the creation of Reseller's marketing
plan; provided that such sales support shall spend 100% of their
time dedicated to activities that support the sales of the
Products. If Reseller determines that it does not require four
full-time dedicated sales support for a period of time, it may
require that it receive additional dedicated technical or
analytical support under Sections 5(c) or 5(d). In addition to
these four full time sales/account representatives, Vendor shall
assign Xxxxxx Xxxxxxxx for up to 50% of his time (i.e., two and a
half days per week) for the Term to provide sales support to
Reseller as requested by Reseller. Vendor may remove Xx. Xxxxxxxx
at any time from his assignment if it assigns another individual
of the same caliber as Xx. Xxxxxxxx to Reseller provided Reseller
consents to such assignment, which consent shall not be
unreasonably withheld.
c. Vendor shall dedicate at least two full time program engineers to
Reseller. Reseller shall determine the type of projects and
functions such dedicated person shall perform; provided that such
technical support shall spend 100% to their time dedicated to
activities that support the technology related to the Products.
Reseller shall have the right to reject the assignment of any
Vendor's employee to Reseller to serve in the technical support
roles so long as such rejection is based on reasonable and
documented performance based concerns. If Vendor reasonably
believes that any of the projects to which Reseller has assigned
the dedicated program engineers is not a productive use of the
engineers' time, then Vendor will notify Reseller of same,
including, the reasons for such belief, and then Vendor and
Reseller shall discuss an appropriate project for such engineers.
d. Vendor shall dedicate at least two full time data analysts to
Reseller. Reseller shall determine the type of projects and
functions such dedicated person shall perform; provided that such
analytical support shall spend 100% of their time dedicated to
activities that support the analytical service related to the
Products. Reseller shall have the right to reject the assignment
of any of Vendor's employees to Reseller to serve in the
analytical support roles so long as such rejection is based on
reasonable and documented performance based concerns.
e. All costs and expenses, including travel expenses, related to
training and the dedicated positions referred to in Sections 5(a)
-5(d) shall be borne by Vendor, unless agreed to otherwise in
writing by the parties.
f. Reseller shall review and evaluate its current organization
structure and determine the changes that are required, if any, to
improve the efficiencies of Reseller and Vendor working together
and leverage the talent and skills in each organization. As part
of this review and evaluation, Reseller will consider if a
dedicated group of people with account, technology, media and
analytical skills is a mechanism to accomplish such efficiencies
and leverage.
g. If any of the dedicated engineering, sales, account, or analyst
support is not being utilized at 100% of their time by Reseller
or Clients, then Vendor shall notify Reseller as to which
individuals are not being fully utilized and to the extent of
such under-utilization Vendor may reallocate those individuals to
work on other programs; however, should Reseller's need for this
dedicated support increase, Vendor will reallocate this support
to Reseller, within the quickest time possible.
6. Tracking Management System. Reseller and Vendor understand that
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Reseller and its Clients are required to use Vendor's proprietary
technology (the "System") to use the Products. Accordingly, Vendor
grants to Reseller a non-exclusive and worldwide license to access and
use the System, which Reseller can access and use only on servers
designated by Vendor by means of a unique username and password issued
by Vendor, and only for the purposes of accessing data in reports of
impressions and, if stated in a SOW, other data related to creating
and maintaining a data record for Reseller's Clients. Reseller shall
cooperate as reasonably necessary to ensure that the Client receives
the data reasonably requested by the Client. Vendor shall ensure that
the System is available for Reseller's use at least 95% of the time,
calculated on a calendar monthly basis. Vendor will work to maintain
and improve the System and will implement all reasonably necessary and
proper corrections to ensure the appropriate functioning of the
System. To ensure the Vendor's methodology for its counting
impressions is accurate, Vendor will have its impression counting
methodology audited by a third party, reputable accounting firm at
least once every six months, which firm shall provide a written report
as to the results of such audit.
7. Additional Obligations. For any Products to be delivered under an
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SOW between Reseller and Vendor, Reseller shall obtain all necessary
rights, licenses, consents, waivers and permissions from target site
operators, web users, and Reseller's Clients, to allow Vendor to
operate the Products, and to use any data provided to or collected by
the System. Reseller further represents that Reseller has read, and
will substantially conform to, Vendor's statement on privacy, as
currently existing on Vendor's web site as of the Effective Date.
Vendor will read each and every Client's privacy policy and use its
commercially reasonable efforts to comply with such policy. To the
extent such policy is inconsistent with regard to the provision of
Products, Vendor shall notify Reseller of the same.
1. Reports. Vendor will provide the necessary platform and access
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for Reseller to generate reports. The content and frequency
thereof shall be set forth in the SOW and in the description of
the Products. The reports will be available free of charge to
Reseller with the cost thereof being part of the fees set forth
above. If Reseller requires customized reports, not set forth in
a SOW, Reseller shall pay an additional amount for such reports,
to be mutually agreed to in writing by the parties.
9. Proprietary Rights and Restrictions. Reseller and its Clients
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retain all right, title and interest, including all copyrights and
other intellectual property rights, in and to the advertisements,
banners and other advertising materials that Reseller or its Clients
provide to Vendor or otherwise place through Vendor or which Vendor
creates during course of its performing an SOW, including, but not
limited to report templates included in the Products. Vendor expressly
acknowledges that it does not obtain any right, interest or title to
any such materials by virtue of this Agreement or its providing of the
Products. Reseller expressly acknowledges it does not obtain any
right, interest or title to the
Products or the System (excluding the Interface) and any promotional
or educational material developed by Vendor.
10. Data. In the delivery of the Products, Vendor will collect and
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maintain information, which may include personally identifiable
information ("PII"), web users' internet addresses, browser types and
operating systems and may create or generate reports or summaries
thereof, as well as other information and data (whether in raw form or
compiled into a report or summary) (collectively "Information and
Data"). Reseller's Clients own the Information and Data and have the
sole and exclusive right to use, sell, license or otherwise dispose of
all Information and Data for any purpose. The Information and Data
contained in the reports are downloadable by Reseller in Graphic
Interchange Format (GIF), or other text and/or graphics format, free
of charge, but any analysis by Vendor of such data shall be subject to
a separate charge as reflected in an SOW. Vendor may use the
Information and Data (other than PII) only (i) for Vendor's reporting
purposes, consisting of compilation of aggregated statistics about the
Product (e.g., the aggregate number of ads delivered) that may be
provided to customers, potential customers and the general public and
provided that the same does not reveal Reseller's identity, the
identity of any Client of Reseller or the identities of any web users;
and (ii) if required by court order, law or governmental agency,
provided that Vendor provides Reseller with an opportunity to seek a
protective order to prevent such disclosure. Upon termination of an
SOW, Vendor shall not retain any hard or soft copies of PII that
relates to such SOW. Vendor will notify Reseller at least thirty (30)
days prior to such destruction and Reseller will confirm with Client
that the destruction of the records has been authorized by Client.
Reseller shall provide a copy of such authorization to Vendor prior to
such destruction..
11. Warranties and Warranty Disclaimer.
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(a) Each party warrants that it has the full power, right and
authority to enter into this Agreement and that this
Agreement constitutes a valid and binding agreement,
enforceable in accordance with its terms. Vendor represents
and warrants that (i) the System and Products were developed
by Vendor without infringement or misappropriation of any
third party's copyrights, trademarks, trade secrets, or
patents that are known or should have been known to Vendor
and Vendor either owns or has obtained all necessary rights
in and to the hardware, software and information technology
components that are the subject of and/or are to be used in
the performance of this Agreement, such that Vendor's
performance of this Agreement, and the use of the System,
Products and related hardware, software and information
technology components do not infringe upon any third-party's
copyrights, trademarks, trade secrets or patents, that are
known or should have been known to Vendor, (ii) the Products
and System shall perform as set forth in this Agreement or
any SOW or any specifications provided by Vendor, (iii) that
there is currently no actual or threatened suit by any third
party based on an alleged violation of any patents,
trademarks, trade secrets or other intellectual property
rights by Vendor; (iv) the Products or System will not
introduce any "back door," "time bomb," "Trojan horse,"
"worm," "drop dead device," "virus," "preventative routines"
or other computer software routines that permit access to or
use of; disable, modify, damage or delete any data, computer
hardware or other equipment or software operated or
maintained by Reseller or Client(s); or perform any other
such similar actions. Vendor warrants that there will be a
minimum monthly uptime of 99.5% for the real time
transaction portion of the Products. Vendor warrants that
Products will be performed in a professional and workmanlike
manner and will meet any specifications for the Products as
set forth in Attachment A or any SOW. Reseller may warrant
to Client on behalf of Vendor the warranties set forth in
this Section. VENDOR MAKES NO OTHER WARRANTIES WITH RESPECT
TO THE PRODUCTS OR ANY SERVICES AND DISCLAIMS ALL OTHER
WARRANTIES, INCLUDING WARRANTIES OF NON-INFRINGEMENT,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE NOT
OTHERWISE CONTAINED HEREIN. Reseller shall not make any
liability or warranty statement to any Client on behalf of
Vendor that is broader than the warranties herein unless
Vendor gives prior written consent for such statement;
however, the parties acknowledge that from time to time a
Client may ask for additional warranties in which case
Vendor will cooperate with Reseller to provide same to
Client, which additional warranties, if any, will be
reflected in the relevant SOW.
(b) The parties recognize that each SOW will include assumptions
regarding Reseller's or Client's subcontractors, software,
hardware, or related information systems, and such
assumptions, to the extent feasible, will be recited in the
SOW ("Assumptions"). To the extent that Vendor breaches the
warranty set forth in Section 11(a)(ii) due to the failure
of such an Assumption (where such failure is
not caused by Vendor), Vendor's breach will be excused to
the extent of such failure; however, Vendor shall notify
Reseller as soon as practicable when it has knowledge of the
potential of such failure and shall cooperate with Reseller
to remedy the problem.
(c) To the extent that Reseller is liable under Section 6.1 of
SPA to Series A Investors (as defined thereunder) as a
result of a breach of a representation or warranty made by
Reseller under the SPA, and such breach would also be deemed
a breach by Vendor under Section 11(a) of this Agreement,
Reseller has no right to seek its rights against Vendor for
a breach of such warranty or representation under Section
11(a) or terminate this Agreement pursuant to Section 13.
12. Indemnification.
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a. Subject to Section 11(b), Vendor shall indemnify
Reseller, its Clients and its officers, directors,
agents and employees for liability resulting from (i)
infringement by the Products or System of any patent or
copyright, (ii) any warranty statement Vendor may agree
in writing is made to a Client pursuant to Section 11,
(iii) grossly negligent acts or omissions of Vendor,
(iv) breach of Vendor's obligations under this
Agreement, (v) damage to or distortion of any target
site by Vendor, to the extent such damage or loss was
within the control of Vendor; (vi) damage or loss of
any Information or Data prior to its delivery to
Reseller or its Client, to the extent such damage or
loss was within the control of Vendor, (vii) any breach
by Vendor of Vendor's privacy policy as then in effect
or (viii) damage to any persons or physical property
resulting from any event specified in (i) through (vii)
immediately above, provided Vendor is notified promptly
of any and all threats, claims and proceedings related
thereto and given reasonable assistance and the
opportunity to assume sole control over the defense and
all negotiations for a settlement or compromise.
Reseller will indemnify Vendor and its officers,
directors, agents and employees from liability
resulting from (i) warranties for Products it makes
that are broader than those agreed to by Vendor, (ii)
grossly negligent acts or omissions of Reseller, (iii)
breach of Reseller's obligations under this Agreement;
(iv) damage to or distortion of any target site by
Reseller, to the extent such damage or loss was within
the control of Reseller; (v) damage or loss of any
Information or Data prior to its delivery to any
Client, to the extent such damage or loss was within
the control of Reseller (vi) any breach by Reseller of
Reseller's privacy policy as then in effect or (vii)
damage to any persons or physical property resulting
from any event specified in (i) though (vi) immediately
above; provided Reseller is notified promptly of any
and all threats, claims and proceedings related thereto
and given reasonable assistance and the opportunity to
assume sole control over the defense and all
negotiations for a settlement or compromise; Reseller
will not be responsible for any settlement it does not
approve in writing, which shall not be unreasonably
withheld. If Vendor or Reseller change their privacy
policy, each shall provide the other with written
notification of such change 10 days prior to the
implementation of such changed policies.
b. Each party (the "Indemnifying Party") shall indemnify
and hold harmless the other and its subsidiaries and
affiliated companies, officers, employees,
representatives and agents (the "Indemnified Parties")
from and against claims (including employment-related
claims brought by or on behalf of Indemnifying Party's
employees or applicants for employment), actions,
demands, damages, losses and expenses, including but
not limited to attorney's fees, judgments, costs and
settlements arising out of or resulting directly or
indirectly from the services and support being provided
hereunder, to the extent caused in whole or in part by
acts or omissions of the Indemnifying Party, its
employees, agents or representatives. The Indemnifying
Party shall discharge the Indemnified Parties of all
the obligations of an employer under any federal, state
and local laws, regulations or ordinances now or
hereafter in force, including, but not limited to,
those relating to taxes, unemployment compensation or
insurance, social security, worker's compensation or
insurance, pension, tax withholding, and including the
filing of all returns and reports required of an
employer and the payment of all taxes, assessments and
contributions and other sums required of an employer.
The Indemnifying Party shall indemnify and hold the
Indemnified Parties harmless against the paying of any
such payments. The Indemnified Party shall have no
obligation whatsoever to make payments, payroll
deductions or other payments or contributions required
to be made to any governmental agencies or taxing
authorities on account of any services rendered
pursuant to this Agreement.
13. Termination, Survival, and Termination Liability. This
------------------------------------------------
Agreement shall continue in effect for the Term. If either party
is in material breach of this Agreement, the non-breaching party
may provide a written notice to the breaching party specifying
the nature of the breach. The breaching party shall have thirty
(30) days from receipt of such written notice to cure the
material breach. If the breaching party does not cure the breach
within such period, the non-breaching party may terminate this
Agreement by providing the breaching party with written notice of
termination, which written notice shall include the effective
date of such termination. Upon a termination in accordance with
Section 13, Reseller's obligation under Section 3(d) shall be
null and void. Sections 11-21 and all accrued rights to payment
shall survive the termination of this Agreement. Upon expiration
of this Agreement, both parties will continue to honor executed
SOWs pursuant to the terms hereof, provided that Reseller
continues to pay all applicable fees therefor.
14. Confidentiality and Intellectual Property. Each party
-----------------------------------------
acknowledges that it may obtain from the other party certain
business, technology, financial, client, or other information
during the course of this Agreement, including ideas, business
plans, pricing and marketing and sales strategies, and other
materials and information regarding the other party's business
operations, technology, or clients (the "Proprietary
Information"). Each party shall at all times keep and maintain
the confidentiality of all Proprietary Information of the other
party and the other party's clients, and shall not use or
reproduce such Proprietary Information except for the purposes
provided herein and shall not disclose any Proprietary
Information to any third party. Each party may disclose the other
party's Proprietary Information solely to employees and
subcontractors that have a need to know and that are bound by
non-use and non-disclosure obligations no less restrictive than
those set forth in this Section. The receiving party shall not be
obligated under this Section with respect to information the
receiving party can document: (i) is or has become readily
publicly available without restriction through no fault of the
receiving party or its employees or agents; or (ii) is received
without restriction from a third party lawfully in possession of
such information and lawfully empowered to disclose such
information; (iii) is rightfully in the possession of the
receiving party (where such possession is not the result of prior
relationships between Vendor and Reseller) without restriction
prior to its disclosure by the other party; or (iv) is
independently developed by the receiving party without use of the
disclosing party's Proprietary Information. The receiving party
may make disclosures required by law or court order provided the
receiving party uses reasonable efforts to limit disclosure and
to obtain confidential treatment. The parties acknowledge that
breach of this Section by the receiving party shall cause the
disclosing party irreparable harm and therefore, in addition to
any other remedies, the disclosing party shall be entitled to
equitable or injunctive relief as a remedy for such breach. Both
parties recognize that the Information and Data may belong to the
Client and is confidential. Vendor will comply with any and all
reasonable security precautions established by a Client in
Vendor's performance of an SOW. In addition, each party shall
ensure that all of its employees assigned to perform services and
support under this Agreement are aware that it is bound by the
foregoing and each party shall advise all of these persons of the
importance of strict compliance with its provisions. Each party
shall inform all of its representatives, agents, subcontractors
and assignees, if any, of these requirements and require their
adherence to the foregoing.
15. Software. Any software incorporated into or provided for use
--------
in a Product (excluding the Interface) is not sold, but rather is
licensed solely for use in that Product. Such license is
non-exclusive and-sublicensable but does not include the right to
(and Reseller will not) modify, reverse engineer, incorporate or
use in any other works, create derivatives of, or copy any
portion of such software.
16. Limited Liability. NEITHER PARTY WILL BE LIABLE TO THE OTHER
-----------------
PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER
ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR
EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF
THE AMOUNTS PAID TO VENDOR HEREUNDER DURING THE TWELVE MONTH
PERIOD PRIOR TO DATE THE CAUSE OF ACTION AROSE (PLUS IN THE CASE
OF RESELLER, THE AMOUNTS DUE HEREUNDER). IN NO EVENT SHALL EITHER
PARTY BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR
COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES.
NEITHER PARTY SHALL HAVE ANY LIABILITY FOR ANY FAILURE OR DELAY
DUE TO MATTERS BEYOND ITS REASONABLE CONTROL OR FOR ANY
ALLOCATION OF PRODUCTS OR SERVICES BETWEEN ITS CLIENTS IN THE
EVENT OF A SHORTAGE. NOTHING IN THIS PARAGRAPH SHALL SERVE TO
LIMIT EACH PARTY'S INDEMNITY OBLIGATIONS FOR THIRD PARTY CLAIMS
UNDER PARAGRAPH12 OR ANY DAMAGES ARISING OUT OF A BREACH OF
PARAGRAPH 14.
17. Beta Testing. When the Vendor develops new trafficking
------------
products, Vendor may ask whether Reseller would like to
participate in the test group before the products and services
are fully launched.
18. Export Control. Each party shall be responsible for: (a)
--------------
complying with all export restrictions, laws and regulations; (b)
securing all permits and other licenses necessary to carry out
its obligations under this Agreement; and (c) paying all tariffs,
duties and the like, associated with its export of any goods or
the use of any information in connection with the Products.
19. Non- Solicitation and Non-Compete.
---------------------------------
a. During the Term and ending on the first anniversary of
the termination or expiration of this Agreement in
accordance with its terms, each party agrees that it
will not directly or indirectly, solicit or attempt to
solicit for employment any persons employed by the
other party during such period.
b. Reseller shall not (i) develop technology that competes
with Vendor's Products; or (ii) pitch business or enter
into an agreement with a third party that owns
technology that competes with Vendor's Products and the
purpose of such agreement is to compete with Vendor's
Products.
c. Notwithstanding anything contained in Section 19(b),
Reseller shall not be prohibited from working with any
third party that provides technologies or services
competitive to Vendor's Products for a particular
Client if:
i. such third party has been selected by or engaged
by such Client and Reseller informed Vendor that
such Client has selected or engaged, or is going
to select or engage, such third party;
ii. such Client terminates any SOW for the provision
of Products as described in Section 3(d)(ii);
iii. Vendor refuses to accept a SOW for such Client as
described in Section 3(d)(iv);
iv. such Client's technology or other business
requirements cannot be met or satisfied by the
Products; provided Reseller advised Vendor of such
requirements and worked with Vendor to determine
that the Products could not meet such
requirements;
v. such third party is (x) DoubleClick, 24/7 or any
entity that is engaged in the business of serving
online advertising, sending or providing email
lists, and (y) the work primarily involves
products that do not compete with the Products,
and such non-competitive products cannot be
purchased separately from competitive products
purchased; or
vi. Reseller was working with such third party prior
to the Effective Date for that particular Client,
in which case, Reseller shall notify Vendor of
same within thirty (30) days of the Effective
Date.
b. The non-compete set forth in Section 19(b) shall
terminate and become null and void upon the earlier of
the following events:
i. Six months after the termination this Agreement if
such termination occurs before the third
anniversary of this Agreement; provided, however,
that Reseller and Vendor agree to work together
during this six month period to ensure that, if
needed, Reseller's Clients are provided, through a
third party, a solution similar to that provided
by Vendor.
ii. Upon the termination or expiration of this
Agreement if such termination or expiration occurs
on or after the third anniversary of this
Agreement.
c. In the event of a Change of Control of Reseller the
non-compete set forth in Section 19(b) will only apply
to the business of Reseller as conducted by Reseller
immediately prior to the Change of Control. Change of
Control shall mean the occurrence of any of the
following events: (i) the consummation of a merger or
consolidation of Reseller with any other corporation,
other than a merger or consolidation which would result
in the voting securities of Reseller outstanding
immediately prior thereto continuing to
represent (either by remaining outstanding or by being
converted into voting securities of the surviving
entity) at least fifty percent (50%) of the total voting
power represented by the voting securities of Reseller
or such surviving entity outstanding immediately after
such merger or consolidation; (ii) the consummation of
the sale or disposition by Reseller of all or
substantially all of Reseller's assets; or (iii) any
person (as such term is used in Section 13(d) of the
Securities Exchange Act of 1934, as amended) becomes the
beneficial owner (as defined in Rule 13d-3 under said
Act), directly or indirectly, of securities of Reseller
representing fifty percent (50%) or more of the total
voting power represented by Reseller's then outstanding
voting securities.
d. Vendor acknowledges that Reseller provides advice and
counseling to its Clients regarding the various services
and products that such Client should purchase to realize
the full value of a program, project or investment. In
that role, Reseller is expected by its Clients to
provide such advice based on its objective assessment of
various products and services, irrespective of any
relationship, financial or otherwise, Reseller may have
with a vendor. Notwithstanding Section 19 or 2(b),
Vendor acknowledges that if its Products cannot satisfy
the business requirements of a Client, from time to time
Reseller may proceed in a manner that it deems necessary
to fulfill its obligations to such Client even if that
means selecting another vendor; provided, that, such
instances will not adversely impact Vendor's status as
Reseller's preferred vendor for Products and Reseller
will provide notice to Vendor of Reseller's selection of
such other vendor, should Reseller not be bound by
obligations of confidentiality which prevents such
disclosure.
e. Vendor acknowledges that from time to time a third party
that owns technology that competes with Vendor's
Products will approach Reseller to pitch business to a
Client or a Client Prospect. If Reseller desires to
pursue such business, to the extent not otherwise
permitted under Section 19, Reseller will advise Vendor
of such opportunity, Vendor and Reseller will discuss
such opportunity and Vendor will consider releasing
Reseller from its obligations under Section 19, taking
into consideration the importance of such opportunity to
Reseller and the impact such opportunity may have on the
preferred relationship between Vendor and Reseller.
20. Independent Contractor. Nothing herein shall be deemed
----------------------
to create an employment relationship between Vendor and
Reseller, or between any of Vendor's employees and
Reseller. Vendor is and shall function as an independent
contractor, not as an employee or agent of Reseller, in
performing its obligations under this Agreement. Vendor
shall have the sole and exclusive responsibility for
selecting its employees who are assigned to perform the
Services, subject only to Reseller's right to reject the
assignment of any Vendor employee to support Reseller in
accordance with Section 5 hereof, for supervising these
employees in their day to day activities, for
determining whether and when any employee should be
disciplined, and for applying and administering any
discipline deemed appropriate. Vendor shall also have
the sole and exclusive responsibility for determining
the wage rates and fringe benefit plans applicable to
the employees assigned to perform the services and
support required hereunder. Further, Vendor shall have
the sole and exclusive responsibility for making
appropriate deductions from its employees' wages and
ensuring that all federal, state and local laws are
complied with in connection with the employment
relationship and all obligations flowing from it. All
employees assigned by Vendor to perform services shall
be employees, freelancers or agents of Vendor only, and
shall have no employment or agency relationship with
Reseller.
21. General.
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a. Any notice required or permitted under this Agreement
shall be in writing and shall be deemed given (a) if by
hand delivery, upon receipt thereof, (b) if mailed,
three (3) days after deposit in the United States mails,
postage prepaid, certified mail, return receipt
requested, (c) if by facsimile transmission, upon
electronic confirmation thereof, or (d) if by next day
delivery service, upon such delivery. All notices shall
be addressed as follows (or to such other address as
either party may in the future specify in writing to the
other):
In the case of Reseller: In the case of Vendor:
Modem Media, Inc. CentrPort, Inc.
000 Xxxx Xxxxxx 000 Xxxx Xxxx Xxxx
Xxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attn: President Attn: CEO
Fax: 000 000 0000 Fax: 000 000 0000
Copy: to General Counsel
Fax: 000 000 0000
b. All correspondence between Vendor and a Client or a
Client Prospect shall be copied to the Reseller Account
Manager of that Client or Client Prospect.
c. Neither party shall have any right or ability to assign,
transfer, or sublicense any obligation or benefit under
this Agreement except to majority owned subsidiaries
(which assignment, transfer or sublicensing shall not
relieve the assigning, transferring or sub-licensing
party of its obligations hereunder), and any attempt to
so assign or transfer shall not have effect and shall be
null and void.
d. The failure of either party to enforce its rights under
this Agreement at any time for any period shall not be
construed as a waiver of such rights.
e. This Agreement supersedes all proposals, oral or
written, all negotiations, conversations, or discussions
between or among parties relating to the subject matter
of this Agreement and all past dealing or industry
custom.
f. No changes or modifications or waivers are to be made to
this Agreement unless evidenced in writing and signed
for and on behalf of both parties.
g. In the event that any provision of this Agreement shall
be determined to be illegal or unenforceable, that
provision will be limited or eliminated to the minimum
extent necessary so that this Agreement shall otherwise
remain in full force and effect and enforceable.
h. This Agreement shall be governed by and construed in
accordance with the laws of the State of Connecticut
(without regard to the conflicts of laws provisions
thereof or the UN Convention on the International Sale
of Goods). In any action or proceeding to enforce rights
under this Agreement, the prevailing party will be
entitled to recover costs and attorneys fees.
i. If the terms and conditions set forth in this Agreement
are in conflict with the terms and conditions of any SOW
in effect prior to the Effective Date, the terms and
conditions of the SOW shall govern, except with respect
to any warranties or indemnifications in which case the
warranties and indemnifications set forth in this
Agreement shall govern. If the terms and conditions set
forth in this Agreement are in conflict with the terms
and conditions of any SOW in effect after the Effective
Date, the terms and conditions of this Agreement shall
govern.
The signature of the parties herein below indicates their acceptance of these
terms and conditions.
Reseller: Modem Media, Inc.
By:/s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Vice President, General Counsel and Corporate Secretary
Vendor: CentrPort, Inc.
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: President and CEO
