CO-BRANDED FREE ISP AGREEMENT
This CO-BRANDED FREE ISP AGREEMENT (the "Agreement") is made and entered into as
of November 30, 1999 by and between Spin Media Network, Inc. ("Spinway"), a
California Corporation, having its principal place of business at 000 Xxxxxxxxxx
Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 and Nettaxi, Inc. ("Nettaxi"), a Nevada
corporation, with offices at 0000 Xxxx Xxxxxx, Xxxxxxxx, XX 00000.
PREAMBLE
WHEREAS, Nettaxi owns and operates a Website, located at
xxxx://xxx.Xxxxxxx.xxx;
WHEREAS, Spinway is an advertising solution and co-branded free Internet
ServiceProvider ("ISP") who owns and operates a service that allows consumers
To receive free access to the Internet (the "Spinway Service");
WHEREAS, Nettaxi and Spinway will offer Nettaxi's users the ability to use
The Internet for free;
NOW, THEREFORE, Nettaxi and Spinway hereby agree, for and in consideration
Of the mutual covenants set forth herein and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, as
follows:
AGREEMENT
1. NETTAXI OBLIGATIONS
1.1 Promote the Spinway Service on Nettaxi. Nettaxi will in
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good faith actively and affirmatively market and promote the Spinway Service as
set forth in SCHEDULE A.
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1.2 Use of Spinway Service. Nettaxi agrees to use the Spinway
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Service only for the benefit of Nettaxi's users and shall not make use of the
Spinway Service for any other purpose.
2. SPINWAY OBLIGATIONS
2.1 Provide Nationwide Access. Spinway shall provide nationwide
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free Internet access to users of Nettaxi and to consumers that Spinway
markets to in conformance with SCHEDULE B
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3. REVENUE SHARE
3.1 Revenue. The sharing of advertising revenue shall be as
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set forth in SCHEDULE A.
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4. TRADEMARK LICENSES AND RESTRICTIONS
4.1 License Grants. During the term of this Agreement, each
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party(the "Licensor") grants to the other party (the "Licensee") a nonexclusive,
worldwide and nontransferable license (without the right to sublicense) to use
the trademarks, images, text, symbols, etc. owned and used by Licensor (the
"Licensor Marks") only for the purposes set forth in this Agreement. Spinway,
as Licensee, may also use Licensor Marks of Nettaxi in connection with Spinway's
marketing and promotion of the service (including the preparation and
distribution of printed materials). Both parties' use of the other's Marks
shall be in compliance with the other party's trademark usage guidelines, as
amended from time to time, a copy of which will be provided promptly following
the execution of this Agreement. Except as set forth herein, no right, title,
license, or interest in any Marks is intended to be given to or acquired
by the execution of or the performance of this Agreement. Neither party
shall use the Marks of the other for any purpose or activity except as
expressly authorized or contemplated herein. Licensee acknowledges that
Licensor is the sole and exclusive owner of all trademarks, service marks,
copyrights and other intellectual property of any kind in the Licensor Marks.
Licensee agrees that (i) it shall do nothing inconsistent with such ownership
either during the term of the Agreement or afterwards; (ii) it shall take no
action that shall interfere with or diminish Licensor's right in the Licensor
Marks.
4.2 Quality Assurance and Ownership. Licensor shall have the
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right to review Licensee's use of the Licensor's Marks. If Licensor disapproves
of Licensee's use of the Licensor's Marks, Licensor shall notify Licensee in
writing detailing Licensor's concerns. Licensee shall provide an edited
specimen of Licensee's use of such Licensor Marks which addresses Licensor's
concerns to Licensor for review within thirty (30) days from the date of notice
from Licensor. Each party, as Licensee, acknowledges that Licensor is the sole
and exclusive owner of the Licensor Marks and that Licensees use of the Licensor
Marks will not create any right, title or interest in such Licensor Marks in
Licensee. Except as prohibited by law, Licensee agrees that it will do nothing
inconsistent with such ownership, either during the term of this Agreement or
afterwards. Licensee agrees that its use of the Licensor Marks shall inure to
the benefit of and be on behalf of Licensor. Licensee shall use the Licensor
Marks so that they create a separate and distinct impression from any other
trademark that may be used or affixed to materials bearing the Licensor Marks or
used in connection with services provided under the Licensor Marks.
5. PROPRIETARY RIGHTS
5.1 Ownership. Spinway is and shall remain the owner of all
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Intellectual Property rights in and to the Spinway Service. Nettaxi is and
shall remain the owner of its customer list and Nettaxi's World Wide Web
property, including but not limited to ownership of all copyrights, images and
other intellectual property rights therein.
5.2 Reservation of Rights. Each party reserves all rights
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not otherwise granted in this Agreement. Nettaxi acknowledges and agrees that
nothing in this Agreement shall be construed to grant Nettaxi any rights in and
to the Spinway Service. Spinway acknowledges and agrees that nothing in this
Agreement shall be construed to grant Spinway any rights in and to the Nettaxi
Site.
6. CONFIDENTIALITY
6.1 Confidential Information. Each party to this Agreement
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treat as confidential all material non-public information (collectively
"Confidential Information"). Neither party shall use such Confidential
Information except as set forth herein, and shall not divulge, disclose or
discuss such Confidential Information with any third party without the prior
written consent of an authorized representative of the other party. Without
limiting the foregoing, each of the parties shall use at least the same degree
of care that it uses to prevent disclosure of its own confidential information
of like importance. The above obligations of confidentiality hereunder shall
not apply to any communication or information that: (a) was publicly known at
the time of its receipt or has become publicly known other than by a breach of
this Agreement, (b) was already known or independently developed without
obligation to keep it confidential, at the time of its receipt, (c) was received
in good faith from a third party lawfully in possession thereof and having no
obligation to keep such communication or information confidential, or (d) is
required to be disclosed under operation of law or governmental process. Neither
party shall use any Confidential Information for any purpose other than the
performance of this Agreement
6.2 Upon the expiration or termination of this Agreement, all
Confidential Information (i) shall be returned to the disclosing party or (ii)
the recipient shall execute a written certification that all confidential
information has been destroyed.
6.3 The parties agree that the breach of any of the obligations
contained in this section 6 is a material breach of this Agreement that may
cause irreparable harm to the nonbreaching party justifying both legal and
equitable relief.
7. WARRANTIES
7.1 Mutual Representations. Each party hereby represents and
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warrants to the other party that neither its performance of its obligations
under this Agreement nor the other party's exercise of the licenses granted to
the other party in this Agreement infringes upon the Intellectual Property
rights of any person or entity. Spinway hereby represents and warrants that it's
services will conform to any specifications provided herein.
7.2 Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS
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SECTION,NEITHER PARTY MAKES ANY OTHER WARRANTY, EXPRESS OR IMPLIED TO THE OTHER
PARTY.EACH PARTY HEREBY DISCLAIMS THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF
THIRDPARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY ARISING UNDER SECTION 6-
("CONFIDENTIALITY") OR SECTION 9- ("INDEMNIFICATION"), IN NO EVENT SHALL
EITHER PARTY BE LIABLE TO OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL,
SPECIAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS) ARISING
OUT OF THIS AGREEMENT (WHETHER FOR BREACH OF CONTRACT, TORT, STRICT LIABILITY OR
NEGLIGENCE) OR ITS TERMINATION AND IRRESPECTIVE OF WHETHER SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE.
9. INDEMNIFICATION
9.1 IP Indemnification by Nettaxi. Nettaxi will defend,
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indemnify and hold Spinway harmless against any liabilities, obligations,
claims, costs, reasonable expenses, whether direct, indirect or consequential
(including without limitation interest, penalties and reasonable attorney's
fees), fines, taxes, levies, imposts, assessment, demands, damages or judgments
of any kind or nature (including without limitation administrative and judicial
orders and consents, stipulations and other forms of resolution of
administrative or judicial action) that Nettaxi infringes a copyright or patent
or other intellectual property right of any third party, provided that: (a)
Spinway promptly notifies Nettaxi in writing of the claim and (b) Nettaxi has
sole control of the defense and all related settlement negotiations. Nettaxi
will reimburse Spinway's reasonable out-of-pocket expenses incurred in providing
any assistance to Nettaxi under this Section.
9.2 IP Indemnification by Spinway. Spinway will defend,
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indemnify and hold Provider harmless against any liabilities, obligations,
claims, costs, demands, damages or judgments that Spinway's Service infringes a
copyright or patent or other intellectual property right of any third party,
provided that: (a) Nettaxi promptly notifies Spinway in writing of the claim and
(b) Spinway has sole control of the defense and all related settlement
negotiations. Spinway will reimburse Nettaxi's reasonable out-of-pocket
expenses incurred in providing any assistance to Spinway under this Section.
9.3 Mutual Indemnification. The parties hereby agree to
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indemnify and hold the other party harmless from any and all liability, cost,
and expense, including reasonable outside attorney's fees, which the parties may
suffer or incur by reason of the other party's breach of any of it warranties,
representations and agreements hereunder.
10. TERM AND TERMINATION
10.1 Term. This Agreement shall be effective from the Effective
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Date and shall continue in effect for twenty-four (24) months from the Effective
Date unless this Agreement is terminated in accordance with the provisions set
forth below. This Agreement shall automatically renew for successive one-year
terms unless (a) either party provides the other party written notice of
termination at least sixty (60) days prior to the expiration of the then current
term of (b) terminated in accordance with Section 10.2. The initial term and
all renewal terms are collectively referred to in this Agreement as the "Term."
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10.2 Termination for Cause. If either party is in material
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breach ofthe terms of this Agreement, the non-breaching party may give written
notice of such breach to the breaching party and an opportunity to cure the
breach withinthirty (30) days. If such breach is not cured within such thirty
(30) day period, the non-breaching party may immediately terminate this
Agreement by subsequent written notice to the party in breach.
10.3 Survival. The following Sections shall survive the
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termination or expiration of this Agreement: Sections 5 ("Proprietary Rights"),
6 ("Confidentiality"), 8 ("Limitation of Liability"), 9 ("Indemnification"), 10
("Term and Termination"), and 11 ("Miscellaneous").
10.4 Customer Disposition in the event of Termination. Upon
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termination, Spinway and Nettaxi shall compete for the ISP service for each
individual customer. Spinway agrees that they will not provide the customer
list generated from this agreement to any competitive party of Nettaxi or any
party wishing to solicit community based services or community based membership
in connection with Nettaxi. Spinway's ISP services and agrees that their offer
will not include any services competitive to Nettaxi. In the event that Spinway
terminates this Agreement for reasons other than cause at the conclusion of the
initial twenty-four (24) month term, Spinway agrees that it will be bound by
the revenue share set forth in Section 6 of Schedule A for the twelve (12) month
period following Spinway's termination for the users on the Service at the time
of Spinway's termination.
11. MISCELLANEOUS
11.1 (a) NOTICES. All notices, communications or statements
given, required or permitted to be given under this Agreement shall be in
writing and deemed to have been sufficiently given when sent by overnight
express delivery, delivered in person or by confirmed telecopy to be follow-up
by an original copy, or by registered or certified mail, postage prepaid, return
receipt requested, to the address of the respective parties set forth in the
first paragraph of this Agreement or such successor address as the parties may
designate in writing. (b) RELATIONSHIP. Spinway and Nettaxi are independent
contractors and neither party is the legal representative, agent, joint venture,
partner, or employee of the other party for any purpose whatsoever. (c)
GOVERNING LAW AND JURISDICTION. This Agreement shall be governed by, subject
to, and construed in accordance with the internal laws of the State of
California, excluding the application of its conflict or choice of law
provisions. Except for either party's right to pursue injunctive relief in any
court of competent jurisdiction, any legal action or proceeding relating to this
Agreement shall be initiated and resolved in a state or federal court in Santa
Xxxxx County, California. (d) PREVAILING PARTY. In any arbitration or judicial
proceeding between Spinway and Nettaxi arising out of or relating to this
Agreement, the prevailing party shall be entitled to recover all reasonable
expenses incurred as a result of the proceeding, including reasonable attorneys'
fees. (e) WAIVER AND SEVERABILITY. No failure or delay on the part of either
party in exercising any right or remedy hereunder will operate as a waiver
thereof or any other provision. No provision of this Agreement may be waived
except in a writing signed by the party granting such waiver. In the event that
any provision of this Agreement is unenforceable or invalid such
unenforceability or invalidity will not render this Agreement unenforceable or
invalid as a whole. (f) ASSIGNMENT. In the event that either party merges or is
acquired by another company, the terms and contractual obligations of the
parties to this Agreement shall remain in effect. Absent of change of control
or ownership, neither this Agreement nor any rights or obligations in this
Agreement may be assigned or delegated by either Party without the prior written
consent of the other Party, which consent shall not be unreasonably withheld or
delayed. (g) HEADINGS. The section headings in this Agreement are inserted as
a matter of convenience and in no way define, limit, or describe the scope of
extent of such section, or affect the interpretation of this Agreement. (h)
COUNTERPARTS. This Agreement may be executed in counterparts, all of which
taken together shall constitute one single agreement between the parties.
11.2 Entire Agreement. This Agreement and the SCHEDULE A AND
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SCHEDULE B attached hereto, which are hereby incorporated by reference,
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constitutes the entire agreement between the parties with respect to the subject
matter hereof. This Agreement supersedes, and the terms of this Agreement
govern, any prior or collateral agreements, whether oral or written, with
respect to the subject matter hereof with the exception of any prior
confidentiality agreements between the parties. This Agreement may only be
amended or modified by mutual agreement of authorized representatives of parties
in writing.
12. DEFINITIONS
12.1 "Intellectual Property" means copyright rights, trademark
rights, patent rights, trade secrets, moral rights, right of publicity, authors'
rights, contract and licensing rights, goodwill and all other intellectual
property rights as may exist now and/or hereafter come into existence, and all
renewals and extensions thereof, regardless of whether such rights arise under
the law of the United States or any other state, country or jurisdiction.
12.2 "Link" means a hypertext link directly between sites on the
World Wide Web, which may be initiated by clicking an icon, logo, button, image
or text.
IN WITNESS WHEREOF, authorized representatives of the parties have executed this
Agreement as of the Effective Date set forth below.
"NETTAXI": NETTAXI, INC. "SPINWAY": SPIN MEDIA NETWORK, INC.
By: /s/ By: /s/
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Name: /s/ Name: /s/
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Title: /s/ Title: /s/
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Address: Contact:
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Contact: Effective Date:
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