Exhibit 10.14
MARKETING DEVELOPMENT AGREEMENT
THIS AGREEMENT is entered into as of July 22, 2000, between ArcusNet, Inc.,
A Delaware corporation with offices at 00 Xxxxxxx Xxxxxxx, Xxxxxx, XX 00000
(hereinafter called the "Company") and Cydoor Technologies Inc., a Delaware
corporation with offices at 00 Xxxxxxxx, XXX, XX, 00000 (hereinafter called the
"Client").
W I T N E S S E T H :
WHEREAS, Client has developed a technology generally described as a suite
of services that enable users to activate Internet based utilities over the user
interface of software programs. This allows for displaying ads, running
e-commerce utilities and implementing a vast range of web related functions, and
WHEREAS, Company is in the business of facilitating and creating strategic
alliances, and
WHEREAS, Client desires to employ Company to develop marketing programs and
strategic alliances;
NOW THEREFORE, the parties hereto intending to be legally bound hereby
covenant and agree as follows:
1. Recitals - The recitals are hereby incorporated herein and made a part
hereof.
2. Retention - The Client hereby retains the Company to create strategic
alliances with third parties on behalf of Client for the purpose of producing
revenue and other value. Contracts or agreements, including any extension
thereof, entered into by Client and third parties due to Company's performance
under this Agreement shall be hereinafter referred to as Third Party
Contract(s).
3. Term - The term of this Agreement shall commence on the date first set
forth above and shall continue for twelve (12) months. If either party hereto
does not provide written notice of termination to the other party on or before
sixty (60) days prior to the end of the then current term of this Agreement,
then the term shall automatically be extended for a further twelve (12) month
period. The term shall be extended automatically from twelve (12) month period
to twelve (12) month period until terminated as set forth herein.
4. Compensation - For the services rendered hereunder the Client shall pay
to Company, on a quarterly basis, a fee which equals seven and one half percent
(7.5%) of the [gross] revenues actually received by Client in such quarter,
through and as consequence of The Third Party Contracts, including but not
limited to all advertising revenues, member acquisition related revenues,
e-commerce revenues and affiliate revenues. Client shall not reimburse Company
for any expenses incurred in providing its services under this Agreement unless
approved in advance and in writing by Client.
5. Payment Terms - All fees are due on a quarterly basis. Client shall pay
to Company its fee for each quarter no later than thirty days after the end of
such quarter. Each payment shall be accompanied by a statement containing the
calculation of gross revenue by project. Payment shall be in US funds delivered
to Company at the address set forth above.
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6. Initiating Cause - Client shall confirm to Company in writing of its
Third Party Contracts that Client enters into due to Company's performance of
its obligations hereunder. Client shall provide a copy of such Third Party
Contracts to Company upon Client's execution of same in addition to copies of
all reports that Client receives pursuant to such Third Party Contracts. Client
shall deliver the reports to Company within fifteen business days after Client's
receipt of same.
7. Company's Approval - Company hereby acknowledges, that: (i) any
agreement with a Third Party is subject to the approval by Client's board of
directors, which shall not be limited in any way in using its sole discretionary
powers upon deciding whether, and under what terms, to engage in such agreement,
if at all; and (ii) it shall not make any commitment or representation which
would, in any way, obligate or bind Client, without the prior written specific
authorization from Client's CEO.
8. Similar Contracts - Client agrees to act on any Third Party Contract(s)
submitted by Company in a timely manner. In the event Client chooses not to
engage in a Third Party Contract submitted by Company then Client agrees that if
Client signs an agreement with such third party containing similar or near
similar terms ("Similar Contracts") within eighteen (18) months after Company
submitted such Third Party Contract to Client then such Similar Contract shall
be deemed a Third Party Contract for the purpose of this agreement and shall be
subject to all the obligations set forth in this Agreement.
9. Authority - The Company and Client mutually represent and warrant that
they have the necessary power and authority to execute this Agreement and to
carry out and perform their obligations hereunder. Company and Client further
mutually represent and warrant that by entering into this Agreement they do not
violate any provisions of any contract or any obligation of it, or constitute an
event of default of any such contract.
10. Work For Others - The Client recognizes and agrees that the Company may
perform services for other persons, provided that during the term of this
Agreement (including any extensions thereof) such services shall not represent a
breach of the Company's fiduciary duty to Client.
Client shall be entitled to engage the services of other consultants,
employees or agents.
11. Survival - Upon any termination of this Agreement, the obligation set
forth in paragraphs 4, 5, 8 and 12 above shall survive for the full term. Any
extensions and renewals of the Third Party Contracts shall be at a rate of three
and three quarter percent (3.75%) for the duration of such extensions and
renewals, but in any event no longer than two years. Obligation set forth in
paragraphs 5, 8 and 12 shall also apply for the for the duration of such
extensions and renewals.
12. Audit Rights - Company, at its own expense, upon reasonable advance
written notice to Client, may audit Client's books and records of account,
relating to revenue subject to this Agreement, during normal business hours at
the place that such books and records may be ordinarily kept; provided, however
that only one (1) audit shall be performed on the books and records of account
for any one (1) calendar year. All books and records and all data and
information contained therein, except as required by law, shall be held in
strictest confidence and shall not be disclosed to any other party other than
Company's counsel and accountants provided that such accountants and counsel
acknowledge in writing that they are bound by this confidence, and upon
completion of such audit shall return all documents or copies thereof to the
audited party. All books and records and all data and information contained
therein shall be used solely for the purpose of reporting to Company the amounts
of any alleged errors in payment of Company's appropriate fee percentage. Any
statement not audited within two (2) years of submission shall be deemed
conclusive and not subject to further contest with respect to matters therein.
Company shall be deemed to have consented to each statement, and such statements
shall become final and binding two (2) years after the rendition thereof unless
specific written objection is made thereto within such period and, if Client
gives Company written notice that it denied the validity of the objection,
unless suit is instituted within one (1) year of the date of such notice.
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Upon Client's request, Company shall submit to the Client written
periodical reports, which shall include information concerning the services
which Company provided during the relevant period.
13. Indemnification - (a) Company agrees to indemnify and hold Client and
its affiliates harmless from and against all claims, demands, liabilities, costs
and expenses arising out of or resulting from: (i) any statement made by Company
to any third party with respect to the Client that consists of other than
presenting current information that has been either published or approved in
writing by Client (ii) a breach or misrepresentation by Company under or in
connection with this Agreement.
(b) Client agrees to indemnify and hold harmless the Company if, by reason
of any action taken by Company or of any inaction on Company's part while acting
on behalf of or for the benefit of the Client and within the scope of this
Agreement, Company is made a party to or a participant in any action, suit,
inquiry, hearing or any other proceeding (a "Proceeding") against the Client,
provided, however, that Company acted in good faith and in a manner it
reasonably believed to be in or not opposed to the best interests of the Client
and, with respect to any criminal Proceeding, had no reasonable cause to believe
it conduct was unlawful.
14. Confidentiality - Company shall hold all Proprietary Information in
confidence, and will not disclose Proprietary Information, except to those
Company employees and consultants to whom such disclosure is necessary in order
to conduct this Program. Company shall notify employees and consultants to whom
disclosure is made that such disclosure shall be kept in confidence.
Proprietary Information means written and oral information, including
software, documentation, other materials and, without limitation, the terms of
this Agreement, the parties' trade secrets, methods or practices, and any other
information relating to the parties' personnel, products, customers, strategies,
services or future business plans.
It shall not be a breach of this Agreement for Company to disclose
Proprietary Information if compelled to do so under law, in a judicial or other
governmental investigation or proceeding, provided Client has been given prior
notice and Company has sought all available safeguards prior to such disclosure.
Company's obligations under this Confidentiality section shall not apply
to: (i) Information now in public domain, or subsequently entering public domain
through no action or fault of Company; (ii) Information known to Company without
restriction prior to receipt from Client; (iii) Information Company receives
from any third party having a legal right to transmit such information; or (iv)
Information independently developed by Company employees, consultants or agents,
provided Company can demonstrate that those same employees, consultants or
agents had no access to Proprietary Information received hereunder.
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Additionally, Company shall keep all information regarding its dealings
with Client and third parties confidential and Company shall not interfere with
any Third Party Agreements it has procured for Client for at least 12 months
after the termination of this agreement.
Client shall similarly hold information received in confidence from Company
in the same manner as set forth above. In regards to information relating to
Company Members Client represents to adhere to a privacy policy, which is at
least as stringent as Company's.
15. Entire Agreement - This Agreement constitutes the entire agreement
between the parties and contains all of the agreements between the parties with
respect to the subject matter hereof. This Agreement supersedes any and all
other agreement, including any employment type agreement between employee and
the Company, either oral or in writing.
16. Amendment - This Agreement may not be amended except by an instrument
signed by both parties hereto, or by their duly appointed representatives.
17. Governing Law - This Agreement shall be governed by and construed in
accordance with the laws of New York (USA).
18. Nonassignability - Neither this Agreement nor any right or interest
hereunder shall be assignable by Company, without Client's prior written
consent.
19. Notices - Unless otherwise specified in a note sent or delivered in
accordance with this Section, any notice to be given under this Agreement shall
be in writing and shall be deemed to be given if delivered to a party in person
or mailed by certified mail, postage prepaid, return receipt requested, at the
addresses set forth below:
If to Client:
Cydoor Technologies, Inc.
00 Xxxxxx Xx.
Xxx Xxxx, XX 00000
If to the Company:
ArcusNet, Inc.
00 Xxxxxxx Xxxxxxx
Xxxxxx, XX 00000
20. Headings - The headings of sections herein are included solely for
convenience of reference and shall not control the meaning or interpretation or
any of the provisions of this Agreement.
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21. Arbitration - All disputes hereunder shall be submitted to the American
Arbitration Association for resolution in New York City, NY.
22. Independent Contractor - In performing services for the Client pursuant
to this Agreement, there will be no employer-employee relationship between the
parties and the Company shall act in the capacity of an independent contractor
with respect to the Client and not as an employee of the Client.
The Company shall not be eligible to participate in any of the Client's
employee benefit plans, fringe benefit programs, group insurance arrangements or
similar programs.
Company shall keep Client informed of any third parties it intends to
solicit as part of its performance under this agreement and review with Client
the goals to be attained by such Third Party Agreements. Company shall solicit
such third parties only after receipt of written confirmation from Client.
Company acknowledges that Client is entering into this Agreement because of
Company's relationship with Xxxxx Xxxxxxxxx. In the event Xxxxx Xxxxxxxxx'x
relationship with Company is terminated this Agreement shall also terminate.
IN WITNESS WHEREOF, the parties hereto have signed and sealed this
Agreement as of the day and year first above written
ArcusNet, Inc.
/s/Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx, President
Cydoor Technologies, Inc.
/s/Xxxx Xxxxx
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Xxxx Xxxxx, CEO
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